Tribunal decisions

The decision

IN THE UPPER TRIBUNAL
IMMIGRATION AND ASYLUM CHAMBER Case No:
UI-2026-001705 & UI-2026-001706

First-tier Tribunal No:
HU/51354/2024 & HU/51003/2024

THE IMMIGRATION ACTS

Decision & Reasons Issued:

4th September 2026

Before

DEPUTY UPPER TRIBUNAL JUDGE LAWRENCE

Between

NG
(ANONYMITY ORDER MADE)

SG
ANONYMITY ORDER MADE)
Appellant
and

ENTRY CLEARANCE OFFICER
Respondent

Representation:
For the Appellant: A Radford, Barrister
For the Respondent: S Keerthy, Senior Home Office Presenting Officer

Heard at Field House on 28 August 2026

Order Regarding Anonymity

Pursuant to rule 14 of the Tribunal Procedure (Upper Tribunal) Rules 2008, the Appellant is granted anonymity.

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.

DECISION AND REASONS
Introduction
1. Both Appellants appeal against decisions by Judge Dowling of the First-tier Tribunal (“the FtT Judge”), each of which dated 20 October 2025, to dismiss their appeals against decisions by an Entry Clearance Officer to refuse human rights claims made by the Appellants in applications for entry clearance as a child of a relative who is present and settled in the United Kingdom (“UK”) or being admitted to that country for settlement. The Entry Clearance Officer’s decisions were dated 31 January 2024 in the case of NG and 19 January 2024 in the case of SG.
Anonymity
2. I order anonymity owing to the Appellants’ having been under the age of 18 at the time of the claims that were refused by the Respondent in the 31 January 2024 decisions, and that the Appellants have continued to be treated as if they were children for the purpose of the application of the requirements of the Immigration Rules to those claims and their appeals against the decisions to refuse the claims. It is not usually necessary or appropriate to identify children in legal proceedings and there is no good reason to do so in these cases.
Background
3. The Appellants have claimed to be are nationals of Eritrea, with NG having been born in 2006 and SG in 2008. They are said to have applied for entry clearance to the UK while living in Uganda, where they claimed to have fled from Eritrea owing to a fear of persecution in Eritrea. The relative whom they applied to join in the UK is their brother, whom I shall refer to as “EK”. EK is a British citizen who is said to have been born in Eritrea in 1998 and to have fled from Eritrea in December 2013, arriving in the UK in 2014 where he claimed asylum and was granted refugee status in October 2014 and, in 2021, was naturalised as a British citizen.
4. By the time the Appellants appeals against the refusals of their applications for entry clearance came before the FtT Judge, the Respondent had conceded that they were related to EK as they had claimed and, as is recorded by the FtT Judge in their decisions and has not been disputed, the parties had agreed that the principal controversial issues for resolution were:
4.1. whether there were serious and compelling family or other considerations which made exclusion of the child Appellants undesirable;
4.2. whether suitable arrangements had been made for the child Appellants’ care;
4.3. whether there was interference with the Appellants’ article 8 rights to family life and, if so, whether such interference was proportionate.
5. Despite that record of agreement, the FtT Judge did not determine whether suitable arrangements had been made for the Appellants’ care, which is related to such arrangements as may have been made for their care in the UK as is plain from the relevant subparagraph in paragraph 297 of the Immigration Rules, 297(1)(f):
“297. The requirements to be met by a person seeking indefinite leave to enter the United Kingdom as the child of a parent, parents or a relative present and settled or being admitted for settlement in the United Kingdom are that he:

(i) is seeking leave to enter to accompany or join a parent, parents or a relative in one of the following circumstances:
…
(f) one parent or a relative is present and settled in the United Kingdom or being admitted on the same occasion for settlement and there are serious and compelling family or other considerations which make exclusion of the child undesirable and suitable arrangements have been made for the child’s care; and
…”
6. None of the parties to these appeals has relied on or even mentioned that omission, but in the event it is immaterial to my decision.
7. Another curious feature of the decisions by the FtT Judge is that, despite them having heard both the appeals on the same date of 5 September 2025, by cloud video platform, and the appeals being “linked” to each other in the FtT online case management platform, there is no mention of the other appeal in either decision and no indication that the appeals were heard together, although that appears to have been the case. I mentioned that feature of the decisions at the start of the hearing before me and invited Ms Keerthy and Ms Radford to address that issue if they considered that anything turned on it, but neither of them did so. There is mention in both decisions that the claimed factual scenario in each Appellants’ case included that each of them was living in Uganda with a brother who had also applied for leave to enter the UK. The decisions are otherwise identical.
8. The FtT Judge recorded in each of the decisions that they had heard evidence at the 5 September 2026 hearing from EK and submissions by the Appellants’ representative before the FtT, Mr Habtemariam, but that the Respondent was not represented.
9. In each of the decisions, the FtT Judge stated that they were satisfied that the Appellant in question had failed to satisfy the Immigration Rules, the applicable test being whether there were serious and compelling family or other considerations which made exclusion of the child Appellant undesirable.
10. In each of the decisions, the FtT Judge also made a finding that the Appellant in question had a family life with EK that engaged article 8 of the European Convention on Human Rights (“ECHR”) and was interfered with by the Respondent’s decision. However, the FtT Judge also found that that interference was not disproportionate to the legitimate aim of maintaining effective immigration control. The appeals were accordingly dismissed.
The appeal to the Upper Tribunal
11. The Appellants each applied for permission to appeal against the FtT Judge’s decisions separately, but their grounds were identical.
12. Permission to appeal to the UT was purportedly refused by FtT Judge Gilmore in a decision dated 1 March 2026 but it appears from the reasons stated in the notice of Judge Gilmore’s decision that the decision was in reality to refuse to admit the applications on the grounds that the applications had been made after the applicable deadline for making them and that it would not be in the interests of justice to extend the time limit to allow the applications to proceed.
13. The Appellants then applied to the Upper Tribunal (“UT”) for permission to appeal, which was granted by UT Judge Bruce in a decision dated 18 May 2026 in which Judge Bruce also decided that the applications for permission to the FtT for permission to appeal to the UT had in fact been in time. Judge Bruce granted permission on all the grounds advanced in the applications, but remarked that she was satisfied in particular that it was arguable that the FtT Judge may have failed to have regard to all relevant considerations when assessing whether there were serious and compelling reasons to admit these minors, and/or to have failed to give adequate reasons for its conclusion that they are living in a “stable and relatively comfortable environment”.
14. The SSHD made no reply under Rule 24 of the Tribunal Procedure (Upper Tribunal) Rules 2008.
The hearing
15. I heard oral submissions by Ms Radford for the Appellants and by Ms Keerthy for the Respondent, which I refer to in the sections below insofar as is necessary to explain my decision.
16. I reserved my decision to follow in writing.
Reasons
17. The Appellants’ first ground asserted that the FtT Judge erred by taking an irrational approach to the Appellants’ temporary status in Uganda. This was particularised in the grounds as follows:
“10. The Judge acknowledges that the appellant only holds temporary status as an asylum seeker in Uganda but concludes on the basis that he has lived there for almost 2 years and there is no evidence that the current arrangement is unlikely to continue(§17, §36). However, there is no rational basis to treat temporary status as a refugee in Uganda any differently to temporary status in the United Kingdom – temporary status is temporary and as such precarious. The length of time it has taken to process the appellant’s asylum claim in Uganda is comparable to the United Kingdom and is certainly no indicator as to the likelihood of lawful residence status continuing.”
18. The Appellants’ second ground asserted that the FtT Judge erred by failing to take account of relevant factor, namely that the country guidance of the UT regarding Eritrea is that Eritreans who left that country illegally are likely to face persecution upon return. That ground was particularised as follows:
“11. The Judge rejected the sponsor’s evidence that the appellant would not be allowed to return to Eritrea because he left illegally, considering that to be an issue between the Ugandan and Eritrean authorities (§18). The Judge should have been alive to the more pertinent question of what would happen to the appellant if he did return to Eritrea. It is well-known in the Immigration Tribunal due to long standing country guidance, the most recent being MST and Others (national service – risk categories) Eritrea CG [2026] UKUT 00443 (IAC), that Eritreans who left the country illegally are likely to face persecution upon return. Therefore, in the context of resolving the issue of whether there are serious and compelling family or other considerations which make exclusion of the child undesirable, and the balancing exercise under article 8, whether the appellant could actually return to Eritrea fails to engage with the more important issue that if he did, he is likely to be exposed to serious harm.”
19. The fourth and fifth grounds asserted, respectively, unreasonable rejection of sponsor’s evidence and failure to consider relevant factor in best interests assessment, particularised as follows:
“15. The Judge was in error to conclude that in the absence of evidence she could not accept the sponsor’s contention that Uganda was safe for young unaccompanied asylum seekers (§19, §23, §37). In circumstances where the appellants are living alone, albeit with a distant relative looking out for them for the time being, it can generally be accepted that children/young people are vulnerable and that situation and is undesirable.
…
16. The Judge concludes (§44) that there is no evidence that the appellant’s best interests require relocation to the UK. The Judge fails to consider that is it usually in the best interests of children to remain with their nuclear family (i.e. parents and siblings). The parents in this case remain in Eritrea and as above any return to Eritrea is likely to result in serious harm to the appellant. Arguably, it is in those circumstances and the precarious nature of his status in Uganda, in his best interests to reunite, together with his other brother (with whom he lives) with the sponsor in the UK who is providing for their needs. Particularly in the context that they are separated due to fleeing persecution in Eritrea.”
20. During the course of argument, it was submitted by Ms Radford that the FtT Judge had materially erred in law when deciding whether there were serious and compelling family or other considerations which made exclusion of the Appellants undesirable and whether the decisions to which the appeals related breached article 8 of the ECHR by making that assessment on the basis of a mistake of fact, namely that the Appellants had “temporary refugee status” in Uganda whereas the evidence was that they were asylum seekers in that country who had not been recognised as refugees nor granted any status as refugees in that country. Ms Radford submitted that that error was material, because the position of a child asylum seeker, and especially an unaccompanied child asylum seeker, is inherently precarious, even in states of the European Union for example let alone a state such as Uganda, and it was irrational for the FtT Judge not to have had regard to that factor when making the assessment referred to above, or in relation to the required assessment of the Appellants’ best interests. I suggested that the asserted mistake of fact did not appear to be an argument that was advanced in the grounds, at least not clearly, but Ms Keerthy confirmed that the Respondent had no objection to me considering the matter.
21. The evidence before the FtT Judge included a witness statement by EK, stating that the Appellants were “living as asylum seekers in Uganda on temporary permission” (eg Appellants’ FtT bundle “AB” p76/[27]) and documents, which were referred to by EK and by the Appellants’ representatives as having been issued by “UNHCR” (AB pp22, 37) but which on their faces state that they were issued by the Office of the Prime Minister of Uganda, Department of Refugees. The documents are titled “Asylum Seeker Certificate”, and are addressed to whom it may concern, stating in the case of each Appellant that they are “an asylum seeker from Eritrea, whose case in under consideration by the Refugee Eligibility Committee”, and that “[w]hile the case awaits the Refugee Eligibility Committee decision, this letter serves as temporary Identification Document” and “is renewable if the asylum process is not complete”. Those items were provided by the Appellants in a bundle of evidence that was uploaded on 2 September 2024, after which the Respondent conducted their review dated 22 January 2025, in which the Appellants are referred to as having claimed asylum in Uganda ([9] and it is stated that “[t]he R acknowledges that the relative has stated they are temporarily in Uganda; however, no evidence has been provided to indicate when they plan to leave Uganda or which country they may be relocating to” ([10]). It does therefore appear that, prior to the hearing at least, the Appellants’ claim and evidence was that they were asylum seekers in Uganda, rather than recognised refugees with refugee status in that country, and that the Respondent did not dispute that claim.
22. Ms Keerthy suggested that the reference by the FtT Judge at paragraph 16 of the decisions to EK describing the Appellants as having fled Eritrea, to Uganda where they “now” had refugee status might have been a description given in evidence during the hearing. That is possible but the suggestion is somewhat undermined by the FtT Judge referring in the next paragraph 17 of the decisions to the Appellants’ permission to stay in Uganda on a temporary basis being included in the bundle, which can only be a reference to the Asylum Seeker Certificates I have mentioned above (my emphasis), although I note (albeit the FtT Judge did not) that the documents had expiry dates in 2023, and so those certificates would have been out of date at the time of the hearing.
23. The FtT Judge reference to EK’s evidence variously describes him as describing or stating facts, which in some cases the FtT Judge specifies as referring to parts of EK’s witness statement (eg paragraphs 20 and 24) and in others as referring to statements made “at tribunal”, which presumably refers to statements made in evidence at the hearing that were not in the witness statement (eg paragraph 21). Paragraphs 16, 17 and 19 of the decision, which I reproduce below, do not specify whether the statement by EK that is in question was made in his witness statement or as an additional statement made during the hearing:
“The appellant’s immigration status
16. [EK] describes that the appellant fled Eritrea, firstly to Ethiopia and subsequently to Uganda where he now has refugee status.
17. He states that the appellant’s refugee status in Uganda is temporary as it is subject to periodic renewal. The appellant’s permission to stay in Uganda on a temporary basis was included in the bundle. However the appellant has been in Uganda since 2023 and there was no evidence to suggest that his permission to stay in Uganda was likely to be removed.
…
[EK] states that he has learnt from the appellant that Uganda is not safe for young unaccompanied asylum seekers and he worried for the appellant’s safety. However no evidence was provided to substantiate that assertion and I do not consider it more likely than not that Uganda is unsafe.”
24. It is therefore unclear whether the evidence heard during the hearing was that the Appellant’s had gained refugee status in Uganda, and it is unclear whether the FtT Judge made their assessment of the Appellants’ cases on the basis that they were asylum seekers or that they had gained such status. The assertion of mistake of fact is therefore misconceived, because in order to consider whether a mistake of fact has been made, one would have to be sufficiently clear as to the finding of fact in question, which is not the case in relation to Ms Radford’s assertion that the FtT Judge mistakenly considered the Appellants to have refugee status in Uganda.
25. I am however persuaded that the question of whether the Appellants were asylum seekers or had been given refugee status, albeit on a temporary basis, was plainly material to the stability and comfort of their situation in Uganda, including whether or not their permission to stay in that country was likely to be removed and therefore that the FtT Judge’s failure to make or to express a clear finding on that matter was a material error, namely failure to have regard to a relevant factor, or inadequacy of reasoning. The FtT Judge found at paragraph 37 that the Appellants appeared to be living in a stable and comfortable environment, and that there was no evidence of threat or imminent risk, which were factors that were material to the FtT Judge’s decision that the Appellants’ exclusion from the UK was not undesirable and, presumably, to the question of whether the Appellants’ best interests required relocation to the UK. The FtT Judge had before them the evidence I have referred to above of the Appellants’ status in Uganda, including that they at least had been asylum seekers who had been issued identification documents as such while their claims awaited consideration by a Refugee Eligibility Commission and therefore the materiality of the error is unaffected by the fact that there was no other evidence of “the operation of the Ugandan asylum system”, to employ the words used by the FtT Judge at their paragraph 18, which is as follows:
“18. [EK] stated that the appellant would not be allowed to return to Eritrea because he had left illegally. However, that would be a matter between the Ugandan and Eritrean authorities. There was no evidence before the tribunal of the operation of the Ugandan asylum system or any evidence of the appellant’s inability to return to Eritrea if required to by the Ugandan authorities. In the absence of evidence to that effect, I do not find it more likely than not that the appellant would be unable to return to Eritrea”
26. I am persuaded that whether or not the Appellants were asylum seekers awaiting decisions on claims for asylum and persons given refugee status on a temporary basis in Uganda was obviously at least potentially material to the comfort of their situation in that country, including the likelihood of them being allowed to remain there and of their return (refoulement) to Eritrea, notwithstanding that there was no other evidence of the operation of the Ugandan asylum system.
27. I am also persuaded that the FtT Judge materially erred when considering the Appellants’ ability to return to Eritrea by failing to have regard to a relevant factor, namely that EK’s evidence was that the Appellants had left Eritrea illegally and the UT’s country guidance on the risk f persecution to persons who are found to have done so. In MST and Others (national service – risk categories) Eritrea CG [2016] UKUT 00443 (IAC) (referred to in the grounds but with an incorrect citation of [2026]), the UT held that those of, or approaching, draft age who are perceived as draft evaders or deserters and those who left Eritrea illegally face a real risk of persecution or serious harm. It would be an error of law to depart from Country Guidance without good reason "explicitly stated": see R (Iran) & Ors v SSHD [2005] EWCA Civ 982. That factor was plainly relevant to the consideration of whether the Appellants would be able to return to Eritrea, and therefore, to the consideration of whether there was any threat or imminent risk to the Appellants which might make their exclusion from the UK undesirable (FtT Judge decision at paragraph 37) and to the question of whether the Appellants’ best interests required relocation to the UK.
28. Ms Keerthy submitted that any risk to the Appellants would be incapable of establishing that the decisions under appeal to the FtT were disproportionate, following the explanation of the relevance of matters of personal security to the consideration of proportionality by the Court of Appeal in IA & Ors v SSHD [2025] EWCA Civ 1516. Whether or not that is correct, I am persuaded by Ms Radford’s response that the appeals to the FtT in the cases before me would be unaffected by any such explanation, because the Court in IA & Ors was concerned with the weight to be given to the public interest in controlling immigration in relation to claimants who do not meet the requirements for leave to enter the UK in any category of the Immigration Rules, whereas the Appellants maintain that they meet the requirements for leave to enter in paragraph 297 of the Rules, and therefore the Court’s guidance is not applicable to the assessment of whether the Appellants met the requirement in subparagraph 297(1)(f) of the Rules and, if that assessment was resolved in their favour, would not be applicable to the consideration of whether an interference in their family life with EK is disproportionate.
29. I am not persuaded that the FtT Judge materially erred in the manner described in the Appellants’ third ground, which asserts inadequacy of reasons for the rejection by the FtT Judge of EK’s explanation as to why he had not visited the Appellants in Uganda. At paragraph 27 of the decision in NG’s case and paragraph 26 of the decision in SG’s case, the FtT Judge writes:
”[EK] left Eritrea in 2013 and has not seen the appellant in person since. He attributes that to lack of time off from his employment and also financial considerations. While I find that there is a genuine family relationship between the appellant and sponsor, there have been opportunities for the sponsor to visit the appellant, he has means to do so, and has not done so.”
30. I am not persuaded that there is any material difference between that finding that there were opportunities for EK to visit the Appellants and he had the means to do so and EK’s evidence (witness statement [16]) that he had to work, was not allowed time off, and decided for financial reasons to prioritise their application to UK rather than visiting them. I am not persuaded that that any additional reasoning was required to explain that finding.
31. However, the appeals succeed on other grounds, for the reasons I have stated above.
Disposal
32. Both Ms Radford and Ms Keerthy both took a neutral stance as to whether the Appellants’ appeals to the FtT should be remitted to the FtT for hearing afresh in the event of the FtT Judge’s decisions being set aside for material error of law. My assessment is that the error of law in the FtT Judge’s decisions is such that none of the findings made by the FtT Judge can be preserved, and therefore I consider it is appropriate that the appeal to the FtT be remitted to the FtT for hearing afresh because I am satisfied that the nature and extent of judicial fact finding that is necessary in order for the decision in the appeal to be re-made is such that, having regard to the overriding objective, it is appropriate to remit the cases to the FtT.

Notice of Decision
The decisions of the FtT involved the making of a material error on a point of law.
The decisions of the FtT are set aside with no findings preserved.
The remaking of the decisions in the appeals is remitted to the FtT, to be remade afresh by any judge other than Judge Dowling.

T Lawrence
Judge Lawrence
Deputy Upper Tribunal Judge
Immigration and Asylum Chamber
DATED: 4 September 2026