UI-2026-001916 & UI-2026-001918

• Status of case: Unreported
• Hearing date: 23 Jun 2026
• Promulgation date: 17 Aug 2026
• Publication date: 03 Sep 2026
• Last updated on: 03 Sep 2026

The decision

IN THE UPPER TRIBUNAL
IMMIGRATION AND ASYLUM CHAMBER Case No: UI-2026-001916
UI-2026-001918
First-tier Tribunal No: HU/52116/2025
HU/52118/2025

THE IMMIGRATION ACTS

Decision & Reasons Issued:

17th August 2026

Before

UPPER TRIBUNAL JUDGE BLUNDELL

Between

HM & MM
(ANONYMITY ORDER MADE)
Appellants
and

ENTRY CLEARANCE OFFICER
Respondent

Representation:
For the Appellant: Victoria Laughton of counsel, instructed by Asylum Aid
For the Respondent: Arifa Ahmed, Senior Presenting Officer

Heard at Field House on 23 June 2026

Order Regarding Anonymity

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


DECISION AND REASONS
1. The appellants appeal with the permission of First-tier Tribunal Judge Mills against the decision of First-tier Tribunal Judge Isaacs, who dismissed their appeals against the Entry Clearance Officer’s refusal of their human rights claims.
2. The appellants were granted anonymity by the First-tier Tribunal (“the FtT”). As they are said to be de facto refugees, it is appropriate that the order should continue in force, since their safety outweighs the demands of open justice. The FtT did not, as I understand it, make an anonymity order in respect of the sponsor, but he is a recognised refugee in the United Kingdom and it is appropriate to extend the protection of anonymity to him for the same reason.
3. The appellants are brothers. They are Eritrean nationals who were born on 14 February 2007 and 20 May 2009. On 12 September 2024, they applied for entry clearance to join their older brother, the sponsor, in the United Kingdom. He is also an Eritrean national who was born on 5 December 2004. He was granted refugee status in the UK on 15 April 2019. He was granted Indefinite Leave to Remain on 27 June 2024.
The Applications for Entry Clearance
4. The applications for entry clearance were made on an “urgent basis with a request that the application is determined as soon as practically possible”. The applications were accompanied by a number of documents including a detailed letter of representations prepared by the applicants’ solicitor, Ruth Budge of Asylum Aid. Other documents which Ms Budge had uploaded to the relevant portal included Tuberculosis test certificates for both appellants, extensive evidence of contact between the appellants and the sponsor, and expert reports from Phil Spencer, an Independent Social Worker (“ISW”), and Teresa Cannon, the Senior Psychotherapist at the Helen Bamber Foundation. Ms Budge’s letter comprised a helpful summary of the evidence and representations in support of the claim that it would be a breach of Article 8 ECHR not to admit the appellants to the United Kingdom.
5. The facts in this case have never been significantly in dispute and it is not necessary for me to rehearse the contents of the evidence which was before the Entry Clearance Officer. It suffices for present purposes to note the following.
6. The first appellant and the sponsor are full siblings. The second appellant and the sponsor are half siblings who share a father but have different mothers. The sponsor fled Eritrea when he was 12 years old, to avoid military service. He had an arduous journey to the UK, during which he experienced detention and exploitation and witnessed horrific events including the raping of women and girls whilst he was travelling across the Sahara. He has Post-Traumatic Stress Disorder (“PTSD”) with anxiety and depression and was suffering greatly because of his concern for his brothers. He had been self-harming and was not sleeping properly or at all. The appellants were at that stage living in Addis Ababa, Ethiopia, where they were denied basic services and were at risk of ill treatment from state and non-state actors. They had endured incidents including attack, arrest and kidnap in Ethiopia. The sponsor was concerned that they might seek to join him by journeying through Libya, which he knew to be extremely dangerous because he had taken that route himself and had suffered appalling ill-treatment during the journey. Their father’s location was unknown. They were raised by the sponsor’s mother. The sponsor has two older siblings who live in Switzerland and Germany. The sponsor and the appellants had an especially close relationship and stated he was like a father figure to them. He had named them in his asylum claim. He supported them financially. He worried about the appellant’s predicament constantly and it was having determinantal impacts on his studies and other aspects of his life.
7. The ECO was invited to consider the reports of Mr Spencer and Ms Canon in detail so as to understand the situation of the appellants and the sponsor. The ECO was also referred to evidence from Ms Billings, a social worker with Islington Social Services who had been the sponsor’s personal advisor since December 2023 who, amongst other things, expressed the view that the situation with his brothers was really holding him back. There were also statements from the sponsor’s foster mother and a service manager in Islington’s Children’s Services who expressed concern about the amount of money which the sponsor was remitting to his brothers and the risk that he would be exposed to exploitation from gangs as a result of his need to do so. It was submitted that the appellants formed part of the sponsor’s pre-flight family unit and that their relationship clearly engaged Article 8 ECHR in its family life aspect as a result of their complete dependence upon him emotionally, practically and financially. Considering the circumstances of the appellants and the sponsor, as documented extensively in the evidence, it was submitted that it would be disproportionate to refuse the applications for entry clearance. At [97] of her letter, Ms Budge summarised the position in this way:
To refuse entry clearance in this case would involve a very harsh outcome for both siblings as it would lead to young refugees who have experienced cumulative trauma and separation and loss from a very young age, to remain separated from one another indefinitely, thereby denying them the opportunity to enjoy a stable, consistent and loving family life. Such an outcome would be wholly incompatible with the best interests of [the appellants], whose development needs are in no way being met in their current situation and would result in [the sponsor]’s current poor mental health, which causes him a high degree of suffering and significantly impairs him in his day-to-day life to persist and potentially worsen, impacting on his future life chances. Considering the vulnerability of all three siblings, such a refusal would not be proportionate or reasonable taking into account all the facts of the case and, as a primary consideration, the best interests of [the appellants] as children.
The Entry Clearance Officer’s Decisions
8. Four months after the applications for entry clearance were made, they were refused by the ECO. There was no reference to the request for expedition. Nor was there any reference to any of the material which had been submitted in support of the applications. It was in fact suggested in both cases that no TB certificate had been provided, which was simply wrong and led to an erroneous refusal under Appendix TB.
9. The decisions were in materially identical terms. The respondent did not accept that the appellants could meet the requirements of Appendix CNP. That was because they were thought not to have an existing and genuine relationship with their sponsor and because they could not be adequately maintained and accommodated in the UK without recourse to public funds. It was not accepted that Article 8 ECHR applied because of the concerns about the relationship. The respondent was in any event not satisfied that there were compassionate circumstances of a compelling nature which warranted granting of entry clearance on an exceptional basis outside the Immigration Rules.
The Appeals to the First-tier Tribunal
10. The appellants appealed to the First-tier Tribunal. The 509 page bundle which was initially prepared for the hearing included the evidence which was uploaded to the VFS Portal in support of the applications, together with a witness statement from Ms Budge confirming that she had uploaded that material and proof that she had done so. There were further reports from Mr Spencer and Ms Cannon, a detailed statement from the sponsor, with exhibits and further witness statements from those who knew him in a personal or professional capacity. There was also an email from Rhiann Holloway, a Protection Associate from the UNHCR in London. She stated that HM was in detention in Libya but that it could advocate for his release if his departure from Libya was confirmed.
11. The appeal bundle was filed with the FtT in September 2025, accompanied by an Appeal Skeleton Argument and a request for expedition. Ms Budge provided another statement in November 2025, updating the position regarding the first appellant’s detention in Libya.
12. In the week preceding the hearing in the FtT, a small amount of further material was provided to the FtT. There was another email from the UNHCR, confirming that the first appellant was being detained in a different location. He had been visited by the UNHCR at the end of November 2025 and was being detained for entering Libya unlawfully. The author, a Senior Protection Associate named Mr Leak, repeated that UNHCR would be able to advocate for release “once departure from Libya is confirmed”. He thought that it might be possible for the UNHCR or the International Organisation for Migration to collect a visa from Tunis and transport it to Libya so as to facilitate his release. There was also an updated skeleton argument, an email from Islington Children’s Services and an email from Ms Cannon in which she explained her role and her ability to provide the psychological diagnoses in her report.
13. Judge Isaacs heard the appeals on 15 December 2025. The appellants were represented by Ms Laughton, the respondent by a Presenting Officer. The judge heard oral evidence from the sponsor and the appellant’s former foster brother. She heard submissions from the representatives before reserving her decision.
14. In her reserved decision of 21 December 2025, the judge found that the relationship between the appellants and the sponsor did not engage Article 8 ECHR in its family life aspect. She found in the alternative that the refusal of entry clearance was proportionate. In order to understand the basis on which the judge reached those conclusions, it is necessary to set out her reasoning in a little more detail.
15. At [8], the judge directed herself to apply the test from IA & Ors v SSHD [2025] EWCA Civ 1516; [2026] 2 WLR 1001 and Kumari v The Netherlands (App No 44051/20). She stated at [9] that she had considered “very carefully” all of the evidence, particularly the expert evidence to which I have already referred.
16. From [10]-[18], the judge made findings of fact which underpinned her conclusion that there was no protected family life between the appellants and the sponsor. At [11], she noted that the first appellant and the sponsor were adult siblings, whereas the second appellant was still a minor. They had last lived with the sponsor in November 2017. They had not been in touch whilst he travelled to Europe thereafter. From 2018 to 2023, he had spoken to them every one or two months when he spoke to his mother. He had sent money to the family in Eritrea on three occasions between 2017 and 2023. Contact had increased since the appellants left Eritrea. The appellants also received money from their sister in Switzerland.
17. At [12], the judge recorded Ms Laughton’s submission that the case was distinguishable from IA & Ors. At [13], the judge explained her rejection of that submission; she considered that there were “significant similarities between the two cases”. The appellants had not formed part of the sponsor’s core family unit for eight years. The fact that the second appellant was a minor did not “automatically mean” that there was a family life and it was very significant that they had not cohabited for many years. Contact had previously been slight and it was only since late 2023 that there had been frequent contact or financial support. The judge concluded that these facts were similar to those in IA & Ors.
18. At [14], the judge concluded that the sponsor had sought to downplay the role of the other two siblings. Whilst the sponsor had said that there was no regular contact between the appellants and their brother in Switzerland, it was he who had negotiated with the kidnappers who had taken the second appellant, and it was their sister in Germany who had raised the ransom. She had also paid for the first appellant’s release when he was abducted by traffickers in Libya. The sponsor’s mother had also provided funds for his release. The sponsor had borrowed money from friends in the UK. This showed that all of the family members in Europe had played a supportive role to the two appellants since 2023. It was said by Ms Laughton that the appellants’ sister could not assist because she had a child of her own but the judge noted that the sponsor was in no better position financially because he was in receipt of Universal Credit.
19. At [15], having alighted again on the sponsor’s limited ability to fund the appellants, the judge concluded that when large amounts of money were required the appellants were mainly dependent on their sister and their mother. She did not accept that the appellants were dependent on the sponsor to any significant degree “and certainly the money he has provided does not amount to additional dependency”.
20. The judge recalled at [16] that it had been submitted by Ms Laughton that the psychological impact of estrangement on the sponsor showed how close his emotional ties to his brothers were. At [17], she did not accept that the resurrection of contact and the forging of “some emotional ties” was sufficient to demonstrate additional elements of dependency. The judge continued:
The court in IA stated at paragraph 136 the family life envisaged by article 8(1) is primarily that of the core family, normally cohabiting together. I find that each of the appellants could continue to live where they are. I am under no illusion as to how unpleasant their personal living conditions may be. However, they presumably provided support for each other when they lived together in Ethiopia from 2023 to 2025, when the first appellant decided to leave Ethiopia. There is no reason why they could not have continued to support each other. I accept that the sponsor has sent some money when he can but I do not find on balance of probabilities that the appellants are totally dependent on him currently. It was very clear that the sister in Germany had provided substantial sums to the appellants as had their mother in Eritrea. In addition, despite the sponsor’s suggestion in oral evidence that the older brother was not in the picture, it was clear that in 2023 he was the person that the second appellant had contacted when in difficulty with kidnappers and it was he who had negotiated with the kidnappers for the second appellant's release. It was clear to me that the two appellants continued to receive support from their two oldest siblings living in Germany and Switzerland as well as their mother. I concluded that the evidence suggested on the balance of probabilities that support provided by the two older siblings, in particular the sister, to the two appellants was more practical and substantial then the support provided by the sponsor.
21. The judge therefore found at [18] that family life as envisaged by Article 8(1) did not exist. She then turned to consider the question of proportionality in the alternative. She considered that a number of the public interest factors in s117B of the Nationality, Immigration and Asylum Act 2002 militated against the appellants. They were unable to meet the Immigration Rules. They would not be financially independent on arrival in the UK. Any family life that there was between the appellants and the sponsor was recent and not profound. It was not clear how well they spoke English, which the judge treated as a neutral factor.
22. Against that, the judge balanced factors on the appellants’ side of the equation. At [27], she considered the best interests of the second appellant and concluded that there was “no evidence to suggest that [he] could not continue to live in Ethiopia as he has done since July 2023”. He had been left there by his brother, which suggested that he was capable of living alone. The fact that he might be “better off living in Europe” was not a trump card. His best interests carried some weight but not sufficient to outweigh the public interest concerns.
23. At [28], the judge considered the impact of the appellants’ continued exclusion on the sponsor’s mental health. She considered that the sponsor had suffered serious trauma before he arrived in the UK “so the respondent’s decision is not the cause of the sponsor’s underlying mental health condition”. She noted what was said by Ms Cannon about the likelihood of the sponsor’s mental health continuing to deteriorate unless the appellants came to the UK but she did not consider that to outweigh the considerations on the other side of the balancing exercise. She considered Ms Cannon’s conclusion in that respect to be “highly speculative” and she did not accept that “providing a potential resolution for the sponsor’s medical situation and prognosis outweighs the public interest in maintaining effective immigration controls.”
24. The judge summarised her conclusions at [29]-[30], which bear repeating in full:
[29] I have also considered holistically whether there are ‘exceptional circumstances’ which mean that refusal would give rise to unjustifiably harsh consequences for the appellant or a member of their family such that there would be a breach of Article 8. I have concluded there are not. The sponsor would undoubtedly rather be reunited with his brothers in the United Kingdom. However, I note that the two appellants have separated and are now living independent of each other with the support of all their relatives, including their mother. I also note that they have two older siblings living in Europe. I also note that there was no intention that the sponsor and the appellants should live together in the United Kingdom. I understand that it might be beneficial for the sponsor’s mental health if the appellants were granted leave to enter the United Kingdom, however I do not find that any of these circumstances amount to exceptional circumstances meaning that the respondent’s decision gives rise to unjustifiable harsh consequences for the sponsor or the appellants.
[30] In summary, I do not find that family life exists between the sponsor and the two appellants. If I am wrong in this conclusion, having considered all of the factors I have identified, I find that none of them either singly or cumulatively demonstrates that the respondent’s decision creates unjustifiably harsh consequences for the appellants or the sponsor. I find that the public interest is not outweighed, and that the decision is therefore proportionate and lawful under section 6 of the Human Rights Act 1998.
The Appeal to the Upper Tribunal
25. Ms Laughton settled the grounds of appeal to the Upper Tribunal. There are five:
(1) The FtT misdirected itself as to the appropriate test for determining whether there was family life between the appellants and the sponsor.
(2) The FtT failed to have regard to material matters, and had regard to immaterial matters, in concluding that there was no family life between the appellants and the sponsor.
(3) The FtT erred in its approach to unchallenged expert evidence
(4) The FtT failed to have regard to the witness evidence
(5) The FtT failed to have regard to material matters in considering proportionality.
26. Judge Mills considered each of the grounds to be arguable and granted permission to appeal. The respondent did not provide a response to the grounds of appeal under rule 24. Ms Laughton filed a helpful and comprehensive skeleton argument and bundle of authorities shortly in advance of the hearing. I shall summarise the submissions made by the parties as I consider the grounds of appeal in turn.
Ground One – Misdirections in Law
Submissions for the appellants
27. Ms Laughton submitted that the judge had erred in applying the “additional elements of dependency” test because that test applied to adult siblings and adult children, whereas the appellants were both minors at the time that their applications for entry clearance were made. The Strasbourg court had an established “aging out” principle which applied in cases in which an application for family reunification was made by a minor who subsequently obtained their majority. In such cases, it assessed the question of whether there was a family life based on the situation which obtained at the date of the application. Whilst that principle had not been brought to the attention of the judge, it applied as a matter of law.
28. Therefore, the appropriate test was merely whether there were “close personal ties” between the appellants and the sponsor. So much was clear, Ms Laughton submitted, from a number of domestic and Strasbourg authorities. There was no decision, domestic or European, that Ms Laughton had been able to find in which the additional elements of dependency test was applied to a relationship between minors and their adult siblings. Ms Laughton accepted that cohabitation was relevant but submitted that it had consistently been held not to be a sine qua non for the existence of a protected family life.
29. Ms Laughton developed further submissions under this head. She submitted that the judge had wrongly attached weight to the sponsor’s decision to leave his brothers in Eritrea. To do so was to overlook what the ECtHR had consistently said about the interruption of family life when a person left to avoid persecution. Mr Laughton also submitted that the judge had erred in applying a test of “total dependency” to the financial relationship between the appellants and the sponsor, and that she had also erred in focusing on the emergency sums which had been sent by the sponsor’s mother and sister, rather than the day-to-day support which he had been able to provide.
Submissions for the respondent
30. Ms Ahmed submitted that the judge had been conscious of the ages of the appellants and the sponsor throughout her assessment. Whilst the circumstances of the appellants naturally evoked sympathy, that was not the test and there was a need to be dispassionate. The judge had been correct to apply IA & Ors. The appellants’ arguments had evolved in the Upper Tribunal, as Ms Laughton had been constrained to accept. There had been no reference to the “aging out” principle before the FtT. Whether that principle applied was fact sensitive. All of the authorities had in any event been considered in IA & Ors. Whilst IA & Ors was predominantly concerned with the relationship between adult siblings, it was notable that it had also considered the best interests of the child. A child did not automatically enjoy a family life with his siblings regardless of the facts. The judge had been entitled to conclude that the appellants did not enjoy a protected family life with the sponsor. The authorities on which Ms Laughton relied were of no assistance to her, since they considered facts which were entirely distinguishable. In this case, the judge had taken account of a range of factors, not least of which was the ongoing role played by the sponsor’s mother and sister in the care of the appellants and the limited contact there had been for many years. It was speculative to assert that they would have lived together if the sponsor had not fled to escape persecution.
Analysis
31. As will be apparent from my short summary of Ms Laughton’s submissions on this ground, she submits that the judge misunderstood the principles she was to apply in determining an appeal of this nature. I will consider those principles, and their application in the instant case, in turn.
32. The first principle is what Ms Laughton labelled the Alvarado or “aging out” principle, from the unreported case of Martinez Alvarado v The Netherlands (App No 4470/21). That was a case in which an adult applicant with serious learning difficulties (an IQ of 65 and a level of intellectual functioning equivalent to an eight year old) sought to remain in the host state with his adult siblings. Whilst no children were involved, the ECtHR recounted the following principle at [45]:
In the context of family reunification, the Court will assess the question whether a relationship between adult family members constituted “family life” within the meaning of Article 8 on the basis of all the facts occurring prior to the date that the decision regarding the request for family reunification became final (see, for instance, T.C.E. v. Germany, no. 58681/12, § 55, 1 March 2018, and Rodrigues da Silva and Hoogkamer v. the Netherlands, no. 50435/99, § 41, ECHR 2006-I). However, when one of the family members was a minor at the time the request for family reunification was lodged, the Court will assess the question on the existence of “family life” based on the situation as it obtained on that date in order to avoid that a child ‘ages out’ pending the proceedings (see, for instance, El-Ghatet v. Switzerland, no. 56971/10, § 51, 8 November 2016, and Tanda-Muzinga v. France, no. 2260/10, § 74 in fine, 10 July 2014). [emphasis added]
33. The first of the cases cited at the end of that paragraph – El-Ghatet v Switzerland – contains no statement of principle in [51], which merely observes that the applicant “was fifteen and a half years old at the time the request for family reunification was lodged”. Similarly, in the second – Tanda-Muzinga v France – the ECtHR did not purport to establish any sort of principle. It merely observed in [74] that the Cameroonian children who sought to join their refugee parents in France were “aged three, six and thirteen at the time the request for family reunification”. I have not been able to find any other Strasbourg authority which contains reference to the “aging out” principle which was apparently considered to be an established principle at the time that the court determined Alvarado at the end of 2024.
34. I asked Ms Ahmed whether the existence of such a principle was accepted by the Secretary of State. She submitted that it all depended on the facts but that cannot be correct; there is either a legal principle or there is not. Whether it applies to a particular applicant will depend on the facts but its existence cannot be so dependent. Ms Ahmed took me to no authorities, domestic or European, which cast doubt on the existence of such a principle in this context. I note the adoption of a similar principle in parts of the Immigration Rules. Paragraph 27 has made similar provision since the introduction of HC395 in May 1994 and paragraph FRP 6.1 (family life requirements for a child applying for family reunion) required a decision maker to consider whether an applicant was under 18 at the date of application. Given that, and given the absence of any reason not to recognise and apply the principle as stated so recently by the ECtHR, I consider that I should follow what was said in Alvarado.
35. Ms Laughton frankly accepted that the judge’s attention was not drawn to this principle, or to the authorities in which it was established. Whilst that means that the judge was not to blame for the principle having been overlooked, it is immaterial to the question of whether she erred in law. In my judgment, the answer to that question is clear; in failing to apply the “aging out” principle, and in treating this as a case in which the older of the two appellants had obtained his majority, the judge erred in law. She should, as a result of authority which was not drawn to her attention, have considered the situation as it obtained at the date of the applications for entry clearance: 12 September 2024. At that date, both appellants were children; the older appellant was seventeen years old, the younger appellant was fifteen.
36. Ms Laughton labelled her second principle the Singh principle, from the decision of the Court of Appeal in Pawandeep Singh v ECO (New Delhi) [2004] EWCA Civ 1075; [2005] QB 608. The appellant in that case was a boy of seven who had been adopted according to the law of India but the adoption was not recognised by the UK, as a result of which he could not meet the domestic Immigration Rules. He sought to submit that the refusal of entry would be in breach of Article 8 ECHR. Dyson LJ and Munby J (as they then were) both gave full judgments allowing the appeal. Chadwick LJ agreed. Dyson LJ noted at [1] that there was a “substantial body of Strasbourg jurisprudence as to the meaning of family life” but no domestic decision on that issue. At [19], he recalled that the core principle as to the existence of family life was concisely stated by the ECtHR at [36] of Lebbink v The Netherlands (App No 45582/99); (2005) 40 EHRR 18:
The existence or non-existence of “family life” for the purposes of Article 8 is essentially a question of fact depending upon the real existence in practice of close personal ties… [emphasis added]
37. Ms Laughton submitted that the appropriate test in this case, in which both appellants were children at the date of application was that test, and not the test stated by the Court of Appeal in IA & Ors, of whether there are “additional elements of dependence involving more than normal emotional ties”. Ms Laughton argued that the additional elements of dependency test, which has been stated consistently since S & S v The United Kingdom (App No 10375/83), applied to relationships between adult siblings and parents and their adult children.
38. Whilst Ms Ahmed made extensive submissions in which she submitted that the additional elements of dependence test did apply to cases such as the present, I found those submissions somewhat difficult to follow. She was unable to draw my attention to a single passage which assisted her argument from IA & Ors or from any of the other authorities in the bundle. I think it likely that Ms Laughton was correct to suggest that there is no authority, domestic or European, in which the additional elements of dependence test has been applied to the relationship between an adult and their minor sibling.
39. As Ms Laughton continued her references to authority, she recalled that the Strasbourg cases contained reference to a third test, which applies in considering whether there exists a family life relationship between a parent and a minor child. In Joseph Grant v The United Kingdom (App No 10606/07), for example, the court stated that it was “clear from the Court's case-law that children born either to a married couple or to a co-habiting couple are ipso jure part of that family from the moment of birth and that family life exists between the children and their parents”. That principle was attributed to Lebbink v The Netherlands but can be found in array of other Strasbourg decisions. One such decision is Berrehab v The Netherlands (App No 10730/84); (1988) 11 EHRR 322, in which it was recognised, at [21], that subsequent events may break the family life tie between parent and minor child.
40. In my judgment, therefore, the authorities cited before me (not all of which I have mentioned) reflect three established tests. The underlying test is that which Lord Dyson set out in Pawandeep Singh: that the existence of family life is a question of fact which depends upon the real existence of close personal ties. Where the relationship in question is between adult siblings or parents and their adult children, the “additional elements of dependency” test applies, and such people must show that they have more than normal emotional ties. Where the relationship in question is between parents and their minor children, however, family life is presumed to exist but may, depending on the facts, have been extinguished by subsequent events.
41. I do not consider there to be any principled basis for concluding that the additional elements of dependency test applied to the relationship between the appellants and the sponsor. They were both minors at the date of their applications for entry clearance and I must focus on the relationship at that date in accordance with the Alvarado principle. There is no basis in the authorities for applying the higher test. Nor, for that matter, is there any basis in the authorities for applying the lower test which applies to parental relationships. As Ms Laughton submitted, the applicable test is simply that of whether there are “close personal ties” between the appellants and the sponsor. In applying the test from IA & Ors, I conclude that the judge fell into error. She focused on the factual similarities between the cases without appreciating that the key distinction was the ages of these appellants at the date of their applications for entry clearance.
42. Ms Laughton’s labelled her third principle the Tekle principle, from the decision of the ECtHR in Tuquabo-Tekle & Ors v The Netherlands (App No 60665/00); [2006] 1 FLR 798. That was a case in which a young applicant, Mehret, sought to join her refugee parents in The Netherlands. Ms Laughton submits that the relevant statement of principle in that judgment is to be found at [47]:
As regards the question to what extent it is true that Mehret’s settling in the Netherlands would be the most adequate means for the applicants to develop family life together, the Court observes that the present application is very similar to the case of Şen v. the Netherlands (cited above), in which it found a violation of Article 8 of the Convention. That case also concerned parents with settled immigrant status in the Netherlands who chose to leave a daughter (Sinem) behind in the care of relatives in her country of origin (Turkey) for a number of years before they applied to be reunited with her. At this juncture the Court would remark that it is questionable to what extent it can be maintained in the present case, as the Government did, that Mrs Tuquabo-Tekle left Mehret behind of “her own free will”, bearing in mind that she fled Eritrea in the course of a civil war to seek asylum abroad following the death of her husband. Be that as it may, it is in any event the case that Mrs Tuquabo-Tekle and her husband, just like Mr and Mrs Şen, have been lawfully residing in the Netherlands for a number of years, even opting for, and obtaining, Netherlands nationality. In addition, and also just as in the Şen case, two children have been born to the couple in the Netherlands: Tmnit in 1994 and Ablel in 1995. These two children have always lived in the Netherlands and its cultural and linguistic environment, have Netherlands nationality and attend school there. Consequently, they can only have minimal ties, if any, to their parents’ country of origin (see Şen, cited above, § 40). [emphasis added]
43. Ms Laughton noted that similar observations (regarding “the circumstances in which the disruption to family life had occurred”) had been made by the Immigration Appeal Tribunal at [13] of H (Somalia) v SSHD [2004] UKIAT 27. I remarked during her submissions that the Court of Appeal had also held in Jitendra Rai v ECO (New Delhi) [2017] EWCA Civ 320 that the Upper Tribunal had fallen into error in focusing on the choice of migrating ex-Gurkhas to leave their child in Nepal without considering “the practical and financial realities entailed in that decision”: [38], per Lindblom LJ, with whom Henderson and Beatson LJJ agreed. I accept that there is a theme running through the authorities, which is that a decision maker should not only consider the length of any time that the parties to a claimed family life have lived apart; the reasons for such separation, and whether it was voluntary or not, are also relevant.
44. I accept Ms Ahmed’s submission that the judge did not “penalise” the sponsor for leaving Eritrea so as to avoid inhuman military service (MST & Ors (national service – risk categories) Eritrea CG [2016] UKUT 443 (IAC). But Ms Laughton’s infelicitous use of that word at one point in her submissions did not convey the real crux of the challenge. As she made clear, her real complaint was that the judge had attached evident significance to the fact that the “appellants have not formed part of the core cohabiting family of the sponsor for over eight years” without taking into account the fact that the sponsor fled Eritrea in order to avoid likely ill treatment. The judge thought that the length of separation was a common feature between this case and IA & Ors and she was undoubtedly correct from a merely chronological point of view. But the judge failed to recognise an important distinction, which was that the family in IA had separated voluntarily when the sponsor came to the UK to work (as is clear from [15] of the judgment), whereas the siblings in this case were forced apart by the risk of persecution to the sponsor.
45. In these three respects, therefore, I accept that the judge misdirected herself in law in deciding whether there was in existence a protected family life between the appellants and the sponsor.
46. Ms Laughton also submitted under this head that the judge had misdirected herself in applying a test of “total dependency” and in focusing solely on the question of financial dependency to the exclusion of other matters. I do not accept either of those submissions. Whilst the judge made reference to the appellants not being “totally dependent” on the sponsor at [17] of her decision, I accept Ms Ahmed’s submission that a fair reading of the decision makes it quite clear that this was not the test that the judge applied. She applied the IA & Ors test, of additional elements of dependency over and above the normal emotional ties, which was in error for the reasons I have set out above. But she did not apply a test of total dependency; she merely observed as part of her reasoning process that there was not total dependency. In that respect, her reasoning process reflected that of the Court of Appeal, at [135].
47. Nor do I accept that the judge misdirected herself by focusing only on the financial support, to the exclusion of other matters which were relevant to the assessment under Article 8(1). On a fair reading of the judge’s decision, there is nothing to indicate that she approached the case by considering that only financial support was relevant.
Ground Two – Relevant Matters Excluded / Irrelevant Matters Included
Submissions for the appellants
48. As Ms Laughton recognised, there is a degree of overlap between the first ground and the remaining grounds. Under this head, for example, she submitted as she had previously that the judge had left the reasons why the sponsor left Eritrea out of account. She also submitted, however, that the judge had left important evidence out of account in assessing the strength of the relationship between the appellants and the sponsor. She submitted that the judge had overlooked what was said in the expert and other evidence about the impact on the sponsor’s mental health of his concern for the appellants. Ms Laughton also submitted that the judge had overlooked the evidence of contact between the appellants and the sponsor, comprising more than 150 pages of messages in the bundle. Ms Laughton also criticised the judge for observing at [11] and [13] that there had been no financial support sent by the sponsor to the appellants for some years after his arrival, since she had not recognised that the sponsor was a child until December 2022. The judge had also failed, in Ms Laughton’s submission, to appreciate that the provision of financial support from other relatives did not discount the possibility that the appellants continued to enjoy a family life relationship with the sponsor.
Submissions for the respondent
49. Ms Ahmed submitted that the judge was not required to make reference to all of the evidence provided she had taken it into account. It was clear from a fair reading of her decision that she had done so. She had made reference at [16] to the “psychological impact of estrangement. The judge had been aware of the extent of the contact between the appellants and the sponsor because she had made reference at [17] to the fact that the sponsor had “resurrected communication” and forged some emotional ties. It was not necessary, she submitted, to subject the communication between the appellants and the sponsor to any greater scrutiny.
Analysis
50. It is necessary when evaluating a ground of this nature to recall what has been said consistently by the Court of Appeal and the Supreme Court about the need for an appellate judge to exercise caution and restraint before finding fault with a trial judge’s findings of fact. It is the trial judge who is immersed in the sea of evidence and an appellate body must avoid “island hopping” around that evidence. The relevant principles were very recently restated, in the context of findings of fact on matters of foreign law, at [18]-[24] of Kerish International Motors Agency v Opel Automobile GMBH [2026] EWCA Civ 865.
51. Applying that cautious and necessarily restrained approach, I agree with Ms Ahmed in much of what she said on this ground. The judge took account of the sponsor’s mental health and the evidence of contact. She was not required to note that there were more than 150 pages of messages between the appellants and the sponsor. Nor was she required to set out in any detail the contents of the ISW and psychotherapist reports; what mattered was that they should be taken into account by the judge. Paragraphs [16] and [17] of the judge’s decision show that they were.
52. I am concerned, however, by the judge’s observations at [11] and [13] that the sponsor had sent money to the appellants on “only” three occasions between 2017 and 2023. I accept Ms Laughton’s submission that the judge overlooked a material matter in making that observation. The sponsor was born in December 2004 and he arrived in the United Kingdom as an Unaccompanied Asylum-Seeking Child in July 2018. He only attained majority in December 2022 and that was necessarily a relevant consideration when assessing the extent of any financial support which passed between the sponsor and the appellants before that date. In leaving the sponsor’s age at the relevant time out of account when making the observations at [11]-[13], I am satisfied that the judge erred.
53. That error goes hand-in-hand with the error that the judge made in relation in relation to the Tekle principle, as discussed above. She left out of account the fact that the sponsor only left the appellants in Eritrea because he was in fear of persecution and she left out of account the fact that he was a minor until 2022. The sponsor was not, in other words, a young man who had decided to leave his brothers in Eritrea and not to support them for many years; he was a young man who had been forced to leave his brothers and who had been unable to support them until he attained his majority. In viewing the case in the former way, I am satisfied that the judge erred in law.
Ground Three – Errors of Approach in Relation to the Expert Evidence
Submissions for the appellants
54. Ms Laughton submitted that the judge had failed to engage with the expert evidence, or that she had failed to give any legally adequate reasons for rejecting it. She drew attention to the conclusions reached by Mr Spencer, the Independent Social Worker, who had stated in his two reports that there was a strong and genuine relationship between the appellants and the sponsor, which was characterised by emotional, practical and financial dependency. He had also concluded that it was in the best interests of the appellants to be reunited with the sponsor as soon as possible. Ms Laughton submitted that the judge had failed to engage with those conclusions in any meaningful way and that the judge’s statements at [9] and [28] that she had read and considered the ISW’s reports were insufficient.
55. Ms Laughton noted that the judge had dismissed Ms Cannon’s conclusions about the likely impact of a refusal of entry clearance on the sponsor’s mental health as “highly speculative”. In circumstances in which there was no challenge to the expert evidence on the part of the respondent, she submitted that this was impermissible as a matter of law. Ms Cannon had concluded that the sponsor was suffering from PTSD, anxiety and depression, and that his mental health was significantly deteriorating due to his separation from his siblings and his concern for them. The second report had noted a significant increase in those difficulties, including weight loss and regular self-harm on the part of the sponsor.
Submissions for the respondent
56. Ms Ahmed recalled that it was not necessary for the judge to describe every item of evidence in her decision; what mattered was that it had been considered. In this case, she submitted that it was quite clear that the judge had taken account of the expert evidence. She drew my attention to [9] of the judge’s decision, in which she had stated that she had considered all of the evidence “very carefully” and had made specific reference to the expert evidence immediately thereafter. Ms Ahmed submitted that the judge evidently been aware of the import of the expert evidence, and that this was clear beyond peradventure from [28] of the decision, in which the judge had given specific consideration to the opinions expressed by Ms Cannon. Ms Ahmed submitted that the judge was not required to place the appellants on notice of her concern that the opinion expressed by Ms Cannon was speculative.
Analysis
57. Ms Ahmed is obviously correct in her submission that a judge of the FtT does not have to record and deal with every piece of evidence: Zoumbas v SSHD [2013] UKSC 74; [2013] 1 WLR 3690, at [23]. Whilst that was said by the Supreme Court in the context of a decision made by the Secretary of State, the Court of Appeal has said similar things in relation to the task of the FtT, at [32] of UT (Sri Lanka) v SSHD [2019] EWCA Civ 1095 and, more recently, at [32] of AM & Anor v SSHD [2026] EWCA Civ 159; [2026] 4 WLR 46.
58. I consider those dicta to be of limited assistance to Ms Ahmed in defending against this specific criticism, however. As Ms Laughton submitted, the question raised by this ground is not simply whether the judge considered the expert evidence; it is whether she gave legally adequate reasons for rejecting that evidence. Had the challenge been expressed in only the former way, I envisage that [9] and [28] of the judge’s decision might well have sufficed to show that the four expert reports had been considered, and the Upper Tribunal would have been bound, in any event, to assume (unless the contrary was established) that the judge had considered all of the evidence before her.
59. Different principles apply to the evidence of an expert, however, since that person is entitled to express their opinion on matters which are in issue between the parties. They are entitled to do so because, through specialist training, study or experience, they are able to provide a court or tribunal with relevant scientific, technical or professional information which is likely to be beyond the experience of the lawyers or the judge: H (Children: Expertise of Witness) [2026] EWCA Civ 249, at [11]. That is why Keene LJ said of expert evidence, at [12] of AA (Sudan) v SSHD [2007] EWCA Civ 95, that “some pieces of evidence are more important than others”. When provided with the evidence of a person who is appropriately qualified to provide expert evidence, the tribunal is not obliged to accept such evidence but it is obliged to examine the analysis and reasoning in the report, and to reach its own conclusions: MS (Zimbabwe) v SSHD [2021] EWCA Civ 941, at [61]. At [21] of SS (Sri Lanka) v SSHD [2012] EWCA Civ 155, Stanley Burnton LJ referred to a tribunal of fact having two obligations when considering the report of an accepted expert: the judge must approach that evidence “with appropriate care” and must then give “good reasons” for reaching a contrary view to that of the expert. The other dicta cited at [19] of Ms Laughton’s excellent skeleton argument are to similar effect.
60. I accept Ms Laughton’s submission that the judge failed to engage adequately with Mr Spencer’s report, and that she failed to give any legally adequate reasons for rejecting it. No challenge was made to his evidence by the respondent. As an Independent Social Worker, Mr Spencer was eminently well qualified to express a view on the strength of the relationship between the appellants and the sponsor, and as to the best interests of the child appellant. Mr Spencer had interviewed both appellants and he was at an advantage to the judge in that respect, since she was unable to do so. But the judge did not at any point in her decision make reference to Mr Spencer’s conclusions. Nor did she give any reasons for rejecting those conclusions. It might have been enough for the judge to state that the facts as she had found them to be were not as they had been presented to Mr Spencer, for example, but that was not her conclusion and the decision leaves the appellants without any clear indication of the reasons for the judge’s apparent rejection of his conclusions. I accept, therefore, that the judge erred in law in her treatment of Mr Spencer’s evidence by giving legally insufficient reasons for rejecting his conclusions.
61. In relation to the evidence of Ms Cannon, the position is rather different. As Ms Ahmed submitted, the decision evidently shows that the judge read and considered that evidence in some detail and there can be no doubt that the judge engaged with her two reports. It was for that reason that Ms Laughton focused her attack on the judge’s finding, at [28] of her decision, that the expert had reached a “highly speculative” conclusion about the likely deterioration in the sponsor’s mental health in the event that the appellants were not granted entry clearance. Ms Laughton contended that the reasoning for that conclusion was legally inadequate and that the decision was also procedurally unfair, since the respondent had not expressed any challenge to the evidence and the judge had given no notice of her concern.
62. I accept the first of those submissions. In my judgment, the judge gave inadequate reasons for rejecting Ms Cannon’s most important conclusion. Ms Cannon had, during the course of her two written opinions, charted the decline in the sponsor’s mental health as the appellants’ situation worsened. She considered that he suffered from PTSD, anxiety and depression and she concluded in her first report that his mental health was deteriorating significantly on account of his separation from his siblings. The second report was undertaken after the refusal of entry clearance and it recounted that the sponsor’s mental health had deteriorated still further, including daily incidents of self-harm and notable weight loss. She made reference to “trauma reactivation and vicarious traumatisation” and expressed concern about “a trajectory toward psychological decompensation that requires clinical attention”. At [99] of her second report, she referred to the sponsor being in a state of “acute psychological emergency”. At [101], she expressed concern about there being a “significant risk of serious self-harm and suicidal behaviour”.
63. Whilst I have taken account of the whole of [28] of the judge’s decision, and have set that passage within the context of the decision as a whole, I do not consider the judge to have given adequate reasons for rejecting Ms Cannon’s key opinion, which was (in summary) that the absence of reunification would be likely to cause a significant decline in the sponsor’s already poor mental health. Ms Cannon was aware that the sponsor had experienced trauma en route to the UK and that he had been further traumatised in the UK when he was stabbed by another Eritrean national. It was nevertheless her opinion that it was the ongoing refusal to reunite the appellants with the sponsor which was likely to bring about very serious consequences. The reasoning behind Ms Cannon’s conclusion was quite clear, and could not properly be described as impermissibly speculative in the sense that there were too many links in the chain of causation: SSHD v OSB [2026] EWCA Civ 647, at [31].
64. In my judgment, therefore, the judge erred in her treatment of the medical evidence in the manners contended by Ms Laughton.
Ground Four – failure to take witness evidence into account
Submissions for the appellants
65. Ms Laughton submitted orally and in writing that the judge had failed to take account of evidence which had been given by various witnesses. There was no reference to the evidence of the sponsor’s former foster brother, who had given oral evidence before the judge. There was also written evidence from the sponsor’s former social worker, his Housing Manager, his former foster parent, his solicitor and three of his friends. As Ms Laughton summarised at [36] of her skeleton argument, this evidence “corroborated inter alia the unusually strong relationship between the sponsor and the Appellants, the responsibility that the sponsor had undertaken for their wellbeing, the heavy emotional burden and the worries and the guilt that the sponsor carried, the money he had been sending through to support the Appellants and the impact of the separation and the refusal of entry clearance had had upon him.” The sponsor’s personal adviser at Islington Children’s Services expressed a concern that the sponsor was sending so much money to his siblings that he was not leaving himself with sufficient for food. Ms Laughton submitted that the judge had erred in failing to take account of this evidence, much of which was from professional or semi-professional sources.
Submissions for the respondent
66. Ms Ahmed submitted that the judge had stated in her decision that she had taken account of all of the evidence and that she was not required to deal with every twist and turn of it. It was quite clear that she had not found the bonds between the appellants and the sponsor not to be as close as was claimed and she had provided adequate reasons for that conclusion.
Analysis
67. I accept Ms Laughton’s submissions on this ground. The judge stated at [5] that she had heard evidence from “the sponsor and a witness” but she did not identify that witness or give any indication in her decision that she was aware of what he had said in his statement or his oral evidence. The judge stated at [9] that she had considered all of the witness statements “particularly carefully” but, again, the decision gives no indication of what was said in the statements described above. At no point in her decision did the judge state what she had made of the witnesses’ written or oral evidence.
68. I recall again that the judge was not required to record and deal with every piece of evidence. There is no need for me to rehearse once more then principles I have set out above. I also recall that there is a need for restraint on the part of appellate judges when scrutinising reasons given by judges at first instance. The relevant principles were drawn together by the former Senior President of Tribunals in his Practice Direction of June 4 2024: Reasons for Decisions. Here, however, evidence was given orally and in writing by people who knew the sponsor in a personal or professional capacity and who spoke to the closeness of the relationship between him and the appellants and the ongoing effect on him of their separation. It was in my judgment incumbent on the judge to state, however shortly, what she made of that evidence. She failed to do so, and she erred in that respect too.
Ground Five – material matters left out of account in the assessment of proportionality
69. The judge’s principal conclusion was that there was no protected family life between the appellants and the sponsor but she quite properly went on at [19] et seq of her decision to consider, in the alternative, whether the refusal of entry clearance was a proportionate decision under Article 8(2) ECHR. Ms Laughton submits that she erred in that alternative analysis for the following reasons.
Submissions for the appellants
70. Firstly, Ms Laughton submitted that the judge had erred in her observation at [27] that there was “no evidence to suggest that the second appellant could not continue to live in Ethiopia as he has done since July 2023”. Ms Laughton submitted that this observation failed to take account of the unchallenged evidence before the FtT that Eritreans in Ethiopia could not register as refugees and were at risk of refoulement to Eritrea where they faced persecutory military service. She pointed in support of this submission to the schedule of country information which was before the FtT, which cited sources from the United State Department of State and the United Nations, amongst others.
71. Secondly, Ms Laughton submitted that the judge had overlooked the fact that the first appellant is in detention in Libya when she observed at [29] that he could live independently with the support of his relatives. The judge had failed to make any reference to what had been said by the UNHCR about the possibility of securing his release if he was to be granted a visa for the United Kingdom.
72. Thirdly, Ms Laughton submitted that the judge had overlooked the sponsor’s second witness statement when she observed that the sponsor did not intend to live with the appellants in the UK. He had said there that he did wish to live with them. Subject to an assessment, Islington Children Services had confirmed that they were “very supportive of the reunification of this sibling group”.
Submissions for the respondent
73. Ms Ahmed submitted that the judge had not fallen into error in any of the respects contended for by Ms Laughton. She submitted that the judge’s attention had not been drawn to the difficulties faced by Eritreans in Ethiopia and that it was for the parties to identify the issues for the judge: Lata [2023] UKUT 163 (IAC); [2023] Imm AR 4 and AL v SSHD [2026] EWCA Civ 370. It was not clear that the country guidance decision was of any application.
74. Ms Ahmed accepted that the judge had not mentioned the first appellant’s detention in Libya but she submitted that this was not a material omission because of what was said at [155] and [159] of IA & Ors. She submitted that “a foreign national being in prison in another country was not the problem of the UK” and that the judge had been correct in her decision not to consider that aspect of the case.
75. Ms Ahmed submitted that it was irrelevant whether the sponsor and the applicants wished to live together; the real point (as the judge had appreciated) was that the appellants’ admission would present the public purse with a significant extra burden, and that militated strongly against them in the scales of proportionality.
Analysis
76. It is clear to me that the judge failed to take into account a number of relevant facts in considering the proportionality of the respondent’s decision. Of course, as Ms Ahmed submitted with reference to IA & Ors, the risks faced by the appellants do not justify their admission to the UK but they were a relevant issue: [157] and [160] of the Court of Appeal’s judgment refers.
77. The judge did fail, as Ms Laughton contended, to consider the precarious situation of Eritreans in Ethiopia. The country guidance decision in MST was brought to the judge’s attention at [26] of the skeleton argument and the schedule of country information made clear reference to credible sources of information in this respect. Lata is of no assistance to Ms Ahmed in those circumstances; the appellants’ circumstances in Libya were legally relevant and were signposted clearly to the judge. This is not a case in which the parties’ agreement as to the issues meant that it was unnecessary for the judge to consider that point.
78. The judge also failed to consider the point that the first appellant is in detention in Libya. Again, whilst Ms Ahmed is correct to submit that this was not a weighty point in the scales of proportionality, it was nevertheless relevant for the reasons stated above. Although the judge made reference to the respondent’s acceptance of this fact at the start of her decision, she failed to consider it when she came to weigh the competing considerations in the Article 8(2) balance sheet.
79. The judge also erred in stating that the sponsor did not intend to live with the appellants in the event that they were permitted to enter the United Kingdom. He had made his intention quite clear in his second witness statement, which the judge seemingly overlooked. That was relevant to the strength of the relationship and to the proportionality of the decision even if, as Ms Ahmed submitted, the appellants would represent a significant burden on the public purse.
80. For these reasons, therefore, I consider that this ground of appeal is also made out.
Conclusions and Disposal
81. I accept that the judge erred in law in each of the respects contended for by Ms Laughton. She misdirected herself in law in applying the “additional elements of dependency” test from IA & Ors because the appropriate test in a case such as this was merely whether there were close personal ties. She overlooked relevant evidence and wrongly discounted expert evidence in assessing the relationship between the appellants. And she left material matters out of account in assessing the proportionality of the respondent’s decision. There are therefore errors of law in the judge’s assessment under Article 8(1) and 8(2) ECHR.
82. I must therefore consider whether to set aside the decision of the First-tier Tribunal. Section 12(2)(a) of the Tribunals, Courts and Enforcement Act 2007 provides that the Upper Tribunal “may (but need not) set aside the decision of the First-tier Tribunal” if it finds that the FtT’s decision involved the making of an error on a point of law.
83. At [34] of JD (Congo) v SSHD [2012] EWCA Civ 327; [2012] 1 WLR 3273, the Court of Appeal noted that the subsection conferred a broad discretion upon the UT if it decides that there is an error of law in the FTT’s decision. In Degorce v HMRC [2017] EWCA Civ 1427; [2018] 4 WLR 79, Henderson LJ (with whom Thirlwall and Longmore LJJ agreed) noted at [95] that the TCEA had set up a new structure but concluded that “a test of materiality will still have a crucial, and usually decisive, role to play in the decision of the Upper Tribunal whether or not to set aside the decision of the FTT”. In SSHD v AJ (Angola) [2014] EWCA Civ 1636, Sales LJ (with whom Sullivan LJ and Newey J agreed) said, at [49], that there are
two categories of case in which an identified error of law by the FTT or the Upper Tribunal might be said to be immaterial: if it is clear that on the materials before the tribunal any rational tribunal must have come to the same conclusion or if it is clear that, despite its failure to refer to the relevant legal instruments, the tribunal has in fact applied the test which it was supposed to apply according to those instruments.
84. The ongoing application of that guidance was more recently endorsed at [43] of ASO (Iraq) v SSHD [2023] EWCA Civ 1282.
85. Whilst I have accepted that the decision of the FtT involved the making of a number of errors of law, I have decided in the exercise of the broad discretion conferred by s12(2) not to set it aside. I have reached that conclusion because, in my judgment, any rational tribunal properly directing itself as to the law in light of IA & Ors would dismiss the appeal. There is therefore no injustice to the appellants (or the sponsor) in allowing the decision of the FtT to stand (Degorce v HMRC refers, at [95]). My reasons for so deciding are as follows.
86. Noting the Alvarado principle, and applying the correct test for the existence of family life between one adult and two minor siblings to the facts of this case, I incline to the view that there is a protected family life between the appellants and the sponsor, despite the length of their separation and the role played by other family members in supporting the appellants. Taking proper account of the views expressed by Mr Spencer, and considering the extent of the sponsor’s concern for the appellants, as described by Ms Cannon, I would be minded to accept Ms Laughton’s submission that these are close siblings riven apart by circumstances in Eritrea, who have done what they can to remain in touch and to support one another despite their geographical separation. The sponsor’s relationship to them was described in Mr Spencer’s report as being more akin to a parental one because their mother was often hospitalised and their father was in the military, as also described at [12] of the sponsor’s original statement.
87. I note also the views expressed by professionals including Ms Rahman of Children’s Active Involvement Service in Islington, who described in her statement for the ECO the way in which the appellants had always been at the forefront of the sponsor’s mind during her work with him. The evidence as a whole seems to point clearly to the existence of close personal ties even if (as the FtT thought) it falls short of satisfying the higher test in IA & Ors. I would be minded, therefore, to accept that Article 8 is engaged in its family life aspect on the particular facts of this case, which differ markedly, in my view, from those in IA & Ors. Considering the matters set out at [151] of IA & Ors (the circumstances in which the family life came into existence, the type of family life in question, the length of time it had existed, and its likely future development) it seems to me that the family life between these young men is and always has been strong and is not in reality diluted, with respect, by anything said by the FtT.
88. I do not consider it necessary for there to be any further findings of fact on that issue, however, because the only lawful outcome of a holistic proportionality assessment would be that the public interest in the appellants’ exclusion from the United Kingdom outweighs all that they rely upon on their side of the proportionality analysis. For the avoidance of doubt, I consider that to be the inevitable outcome in this case when the facts are taken at their highest. I therefore proceed on the basis the facts set out in Ms Laughton’s submissions are established, and in particular that:
(i) The first appellant left Ethiopia because he was concerned about being rounded up by the police and returned to Eritrea; the sponsor is concerned that he might have been influenced by traffickers to leave: [4] and [7] of the sponsor’s second statement refers. The first appellant was held by the traffickers for the purposes of extortion, and the second appellant reported to Mr Spencer that he had heard a voice message in which his brother was screaming whilst being beaten with a whip. Ms Budge described in the statement she made before the FtT that she had heard the recording for herself. As Mr Spencer noted, and as confirmed by the appellants’ country evidence schedule before the FtT, such treatment is unfortunately commonplace when individuals place themselves in the hands of the traffickers who operate in this area. HM was only released after a sizeable ransom was raised by the sponsor and his sister.
(ii) Having been released, the first appellant was arrested and is now in detention in Libya, where he is detained for entering the country illegally. He faces ongoing detention with significant attendant risks to his physical and mental health, about which the UNHCR has expressed concern after having visited him on 25 November 2025. HM has described the conditions to the sponsor as being like “chickens in a hutch”. The photograph of the first appellant in the bundle shows that he has lost weight and is weak and suffering from a scalp condition. Evidence from Médecins Sans Frontiers and other credible bodies confirms that conditions of detention in Libya are inhuman and degrading. The UNHCR reported in June 2025 that dozens of bodies had been discovered at unofficial detention centres, along with instruments of torture. As confirmed by evidence from the UN Security Council set out in the country evidence schedule, there is also a high risk that HM might be returned to Eritrea, where he would face persecutory ill-treatment in the form of military service or punishment for the evasion of the same. He could be released from detention if he was granted a visa to the United Kingdom, failing which the risks just described will subsist. It is obviously in his best interests that he should be permitted to reunite with the sponsor. Counsel was entitled in her first skeleton argument to submit that the dismissal of the appeal would result in “catastrophic, potentially life-threatening consequences” for the first appellant.
(iii) The second appellant is living illegally in Ethiopia as a child of 17. He survives, albeit in poor and unsanitary living conditions, with the assistance of support from family members, particularly the sponsor. Mr Spencer recorded in his addendum report that the cost of living in Eritrea is rising; that tensions with neighbours remain; that water is scarce; and that MM is less able to feed himself than before. The second appellant’s educational needs are unmet. He was kidnapped, ill-treated and held for ransom in 2023. Later that year, he was arrested, detained and ill-treated by the Ethiopian authorities for more than two months. Background evidence from the UNHCR which was before the FtT confirms that the Ethiopian government stopped granting prima facie (refugee status) recognition to Eritrean nationals in 2020. There are credible reports of the Ethiopian authorities deporting Eritreans in their hundreds, as described in the country evidence schedule before the FtT. The second appellant is therefore at risk of arrest and detention and refoulement to Eritrea, entailing the same risks I have described above, and he attempts to stay inside as much as possible to avoid the regular raids undertaken by the authorities. There is likely to be an impact on the second appellant’s physical and mental health as a result of his precarious existence and his circumstances in Ethiopia. There is also a risk that he might attempt to leave Ethiopia and make his way to the United Kingdom unlawfully, entailing significant risks to his health and wellbeing, including the risk of trafficking and exploitation which the sponsor experienced when he made that journey. It is obviously in his best interests that he should be permitted to reunite with the sponsor. Counsel was entitled in her first skeleton argument to submit that the dismissal of the appeal would give rise to grave consequences for the second appellant.
(iv) The sponsor is a refugee who endured an appalling journey to the UK. He is a former looked after child who suffers from recognised mental health problems including PTSD, anxiety and severe depression. He was stabbed in the back by a fellow Eritrean national whilst in the UK, in 2023. He is desperately worried about the appellants and that worry is causing a serious decline in his mental health, such that he has lost weight and taken to regular self-harm. He said in his second statement that he has felt “really crazy” since he heard that HM had gone to Libya, and states that he worries about his brothers constantly, which prevents him sleeping. The professionals involved in his care have expressed significant concerns about his wellbeing, including the risk that he is vulnerable to exploitation because he is remitting such a significant proportion of his modest income to the appellants: [17] of Ms Rahman’s statement to the ECO refers. He has failed in the past to repay money which he has borrowed from friends to send to the appellants.
(v) In the event that the appellants are not permitted to enter the UK, the sponsor is at “significant risk of serious self-harm and suicidal behaviour”: Ms Cannon’s latest opinion refers. Ms Laughton justifiably referred to the sponsor’s mental health “rapidly deteriorating” in her original skeleton argument. Ms Budge was so concerned about his mental health that she took steps to ensure that he was safe. The current state of the sponsor’s health has affected his ability to follow his vocational course (in plumbing) and that is likely to persist in the event that the appeal is dismissed. Whilst he has the support of the NHS and of Islington Children Services, the effects on his mental health might be ameliorated to some extent but will not resolve the root cause of that deterioration and would be insufficient for that reason. Reunification, on the other hand, would be likely to improve the sponsor’s mental health in the ways, and for the reasons, given at [144]-[146] of Ms Cannon’s first report (and 6.7 of Mr Spencer’s first report.) It would finally bring an end to the sponsor’s feeling that he is “not really living”, as he put it at [96] of his original statement. Ms Billings, another social worker for Islington, spoke at [14] of her statement about the “huge burden” which would be lifted from the appellant’s shoulders by reunification.
(vi) There is no other safe country in which the appellants and the sponsor could legally reside. They would each be at risk in their country of nationality for the reasons set out in the country guidance decision of MST and they do not have permission to reside in any other country. It was not suggested to the FtT that they could relocate to Germany or Switzerland where their older siblings live. In the event that they are able to do so, it seems likely that both appellants will seek to join the sponsor in the UK by unlawful means, entailing significant risk to their life and liberty for the reasons set out above and in the section of the country evidence schedule entitled “Risks of onward migration by the Appellants”.
89. I have set out the consequences for the appellants and the sponsor in some detail but it is necessary to recall what was said in IA & Ors about the weight which can properly be attached to the appellants’ circumstances. The UT in that case had plainly attached considerable weight to the fact that the appellants were “at a high risk of death or serious injury on a daily basis”: [153] of the Court of Appeal’s judgment refers. Ms Ahmed submitted before me that the UK was “simply not responsible for the risks faced by persons in a foreign war zone, and in doing so she echoed the submissions made by the Secretary of State to the Court of Appeal: [151] refers. As Ms Laughton rightly noted in her response to that submission, the Court of Appeal did not ultimately endorse the Secretary of State’s stance. At [157], however, it did accept that the children’s best interests were treated as paramount, and therefore as a trump card. The court accepted in the same paragraph that they were relevant but that “in focusing so closely on the effects of the war [the UT] distorted the balance that had to be undertaken under article 8(2)…” It went on, at [172], to attach weight to “the interests of the family in wanting to leave Gaza and to abate the risks and the humanitarian crisis the family face there”. It also attached weight, but not paramount weight, to the best interests of the child appellants, the risk to the adult appellant and to the anxiety and PTSD of the sponsor, which had been “triggered by the risk to the family” [19] also refers. I adopt the same approach in this case.
90. Against all of those duly weighted consequences for the appellants and the sponsor, however, I must weigh the public interest, as calibrated in IA & Ors. I note all that was said by the Court of Appeal as regards proportionality was obiter, since the conclusion that Article 8(1) was not engaged in its family life aspect was dispositive of the appeal. But it was not argued before the First-tier Tribunal or before me that the obiter dicta of a Court of Appeal comprising the Master of the Rolls, the Senior President of Tribunals and Lady Justice Laing, after full argument from counsel teams including four leading silks, were deserving of anything less than the greatest of respect. Indeed, it was no part of Ms Laughton’s argument that I should not follow what was said in IA & Ors in relation to Article 8(2).
91. I remind myself that the person who enjoys the right to respect for family life in a case such as the present is the sponsor but that the family life is the unitary family life between the sponsor and the appellants. Article 8 ECHR might in those circumstances impose a positive obligation to admit the appellants: IA & Ors, at [100] and [141]-[143]. In deciding whether the United Kingdom has such an obligation in the instant case, it is necessary to consider whether very exceptional or compelling circumstances have been shown: IA & Ors at [145] and [169], for example. That entails a balancing exercise. I have set out the matters which appear on one side of the balance sheet above. The matters which appear on the other side are as follows.
92. Firstly, there are the immigration control policies of the Secretary of State and the UK Government, as reflected in the Rules, which express what is necessary in the interests of the economic well-being of the UK and for the rights and protections of the citizens of the UK: IA & Ors at [110], [160] and [167], citing Lord Reed’s instruction at [47] of R (Agyarko) v SSHD that appellate bodies must “take the Secretary of State’s policy into account and […] attach considerable weight to it at a general level.” In this case, as in IA & Ors, there is no Immigration Rule under which the appellants can hope to qualify and there is no resettlement policy concerning Eritrea. As the court put it at [166], the UT had in that case given “the wrong weight to the SSHD’s policies as reflected in the Rules, which did not allow families from this war zone to join family members settled in the UK”. That is a matter to which considerable weight must be given: [173] of IA & Ors also refers.
93. Secondly, it is necessary as a result of s117B(2) of the Nationality, Immigration and Asylum Act 2002, to take account of the accepted fact that the appellants do not speak English. That does not put decision makers in a straitjacket which constrains them to determine claims under article 8 inconsistently with the article itself but it might help to justify the interference with their family life: Rhuppiah v SSHD [2018] UKSC 58; [2018] 1 WLR 5536 at [49] and [57]
94. Thirdly, it is necessary as a result of s117B(3), to take account of the economic wellbeing of the United Kingdom and to do so in the way prescribed by Rhuppiah v SSHD. In this case, the appellants find themselves in an appreciably worse situation than the appellants in IA & Ors. In IA & Ors, applying the income support yardstick, the sponsor was broadly able to support the family beyond the short term, and was committed to doing so: [20]. In this case, and this is obviously not a criticism, the sponsor is dependent on Universal Credit and is in no position to maintain and accommodate the appellants. Like the sponsor, the appellants are young people who have suffered enormously in their recent lives and it seems unlikely that they will represent anything other than a significant burden on the public purse from the date of any admission to the United Kingdom. That is also a matter which I am required by statute to take into account.
95. Standing back and weighing these competing considerations, I feel bound to conclude that the only rational conclusion is, as it was in IA & Ors, that the proper balance comes down heavily in favour of refusing entry clearance. The appellants’ circumstances are appalling and their best interests weigh in favour of their admission, but it would distort the balance to focus too heavily on their circumstances for the reasons I have given. Their family life with the sponsor is a strong one which is neither recent nor tenuous for the reasons above and I give weight to that. I also give significant weight to the consequences for the sponsor, which I have sought to set out in some detail. I was troubled by what was said by those involved in his care and I take seriously the deterioration in his mental health. Ultimately, however, I may not be driven by my natural human reaction to the circumstances of the appellants and the sponsor and I must give proper weight to the government’s immigration policies, including the sponsor’s inability to maintain the appellants and their inability to speak English. Having done so, I conclude that the only permissible outcome in this appeal was for the appeal to be dismissed. The FtT having reached the correct conclusion, albeit by the wrong route, I decline to set its decision aside.
Notice of Decision
The decision of the First-tier Tribunal involved the making of errors on points of law but it is not set aside. The decision to dismiss the appeals therefore stands.


Mark Blundell

Judge of the Upper Tribunal
Immigration and Asylum Chamber


4 August 2026