Tribunal decisions

The decision

IN THE UPPER TRIBUNAL
IMMIGRATION AND ASYLUM CHAMBER Case No: UI-2026-002066
First-tier Tribunal No:
PA/01796/2023

THE IMMIGRATION ACTS

Decision & Reasons Issued:

13th August 2026

Before

UPPER TRIBUNAL JUDGE RUDDICK

Between

STA
(ANONYMITY DIRECTION MADE)
Appellant
and

SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: M. Allison, instructed by UK Visa Solutions
For the Respondent: M. Parvar, Senior Home Office Presenting Officer

Heard at Field House on 6 July 2026

DECISION AND REASONS
Introduction
1. This appeal involves the family life rights of an appellant who does not have leave to remain in the UK, his British partner, and her British son from a previous relationship.
2. The First-tier Tribunal (“FtT”) made an anonymity order in this appeal, and I have not been asked to lift that order.
3. In a decision promulgated on 2 March 2026, the FtT rejected the appellant’s claim for international protection in the UK, finding that he would not be at real risk of persecution or inhuman and degrading treatment in violation of article 3 of the European Convention on Human Rights (“ECHR”) if he returned to Iraq.
4. It also found that the appellant and his partner, LM, are in a genuine and subsisting relationship and that there was “no prospect” of them living together in Iraq. This was because of LM’s significant disabilities, the presence of her entire family in the UK and the fact that neither she nor her son (whom I will call “C” for “child”) speak Kurdish or have any connection to Iraq. The FtT also accepted the couple’s evidence that LM was pregnant and that the appellant was the father of the child, who was due to be born on 11 August 2026.
5. There has been no challenge to any of these findings.
6. Section 117B(6) of the Nationality, Immigration and Asylum Act 2002 Act provides that it is not in the public interest to remove a person from the UK if they are not liable to deportation, they have a genuine and subsisting parental relationship with a British citizen child and it would not be reasonable to expect the child to leave the United Kingdom. It was common ground, however, that section 117B(6) could not apply to a child who had not yet been born. The FtT did not apply section 117B(6) to the appellant’s relationship with C.
7. Under Appendix FM of the Immigration Rules, a person who is in the UK unlawfully may be eligible for a grant of leave if they are in a genuine and subsisting partnership with a British citizen who is in the UK, and there are insurmountable obstacles to family life with that partner continuing outside the UK. Insurmountable obstacles are defined as “very significant difficulties […] which could not be overcome or would entail very serious hardship for the applicant or their partner”.
8. It may be that the appellant would have been able to show that there were insurmountable obstacles to continuing his family life with LM outside the UK, given the FtT’s findings about why she could not live in Iraq. However, for this rule to apply, a couple must meet the definition of partners set out in Appendix FM. This requires that they are married or in a civil partnership, or have been in a relationship “similar to marriage or civil partnership” for at least two years before the date of application. The appellant and his partner cannot meet this definition, because they are not married or in a civil partnership and they claimed that their relationship only began in May 2024. This was almost five years after the appellant claimed asylum and less than two years before the hearing of his appeal, which took place on 3 February 2026.
9. The FtT therefore considered whether removing the appellant from the UK would be a disproportionate interference with the right to a family life of the appellant, his partner and his partner’s child, as protected by article 8 ECHR. It considered a range of relevant factors and decided that it would not be disproportionate. Among the factors it considered were that it did not accept that the relationship had begun in May 2024. Even if it had, this was a relatively short period of time.
10. It also took into account that the appellant could return to Iraq and apply for entry clearance. It placed no weight on the appellant’s claim that he would be unable to meet the requirements of the Rules for a grant of entry clearance.
11. The appellant has been granted permission to appeal on four grounds:
(i) The FtT may have misapplied the law by not applying section 117B(6), given the findings it made about the relationship between the appellant and C;
(ii) The FtT may have erred by putting no weight on the appellant’s potential inability to meet the requirements of the Rules for a grant of entry clearance;
(iii) The FtT may have given insufficient or irrational reasons for finding that the relationship had not begun in May 2024 as the couple claimed; and
(iv) It may have been unfair that the FtT put little weight on the evidence of one of the couple’s witnesses about the length of their relationship, given that the witness was not cross-examined.
12. For the reasons set out in more detail below, I do not find that any of these grounds are made out.
The birth of the couple’s child
13. On 4 August 2026, after the hearing before me but before I had finalised my decision, LM gave birth to the couple’s daughter. The couple and C have my sincere congratulations.
14. The child is a British citizen pursuant to section 1(1)(a) of the British Nationality Act 1981. It may well be that the appellant currently has a genuine and subsisting parental relationship with his daughter. Given that the FtT found that he is in a genuine and subsisting relationship with her mother, consistently helps care for C and spends three to four nights a week in LM’s home, where the baby presumably lives, I consider this likely to be the case. If so, given the unchallenged finding that LM and C cannot live with the appellant in Iraq, it would appear that section 117B(6) now applies and, in according to the view expressed by Parliament in that legislation, it is no longer in the public interest to require the appellant to leave the UK.
15. This situation was clearly foreseeable at the time of the hearing before me. Both parties agreed, however, that it could not affect my decision about whether the FtT had erred in law when it made its decision based on the facts as they were in February 2026.
The challenged decision
16. The challenged decision is 159 paragraphs long. Paragraphs [5]-[18] and [78]-[119] deal with the appellant’s claims under the Refugee Convention, article 3 ECHR and his claim for humanitarian protection. As noted above, the FtT dismissed the appeal on all of these grounds, and there is no challenge to that aspect of its decision before me. I therefore do not summarise these sections of the decision here.
17. Paragraphs [23]-[40] discuss the documents submitted by the appellant in support of his appeal and events on the morning of the hearing. They detail numerous failures by the appellant’s representatives to comply with directions, including by supplying a link to an appellant’s bundle that did not work ([23]) and by filing a “bewildering array of separate PDF documents ([26]). The FtT criticised the appellant’s documentation as “chaotic” ([33]) and the delay in starting the hearing so that Mr Allison could have a conference with his client as “far from satisfactory”. It is surprising and disappointing that in spite of these comments, the appellant did not comply with the Upper Tribunal’s directions either and did not file his bundle for these proceedings until 23:25 on the evening before the hearing.
18. The first section of the FtT’s determination that is relevant to my decision is entitled “Evidence”. This records, at [50], that the appellant adopted his four witness statements, made between June 2021 and August 2025. At [51]-[55], it records the appellant’s oral evidence. He said that he and LM had found out she was pregnant the day before Christmas, and that although the pregnancy was not planned, they had “decided to proceed to a birth”: [51] The appellant also said that he had not received any information from the Red Cross since they had confirmed his family tracing request, made in March 2024, but that they contacted him “every six months”: [52] He had been fingerprinted in connection with obtaining his CSID (an Iraqi national identity document): [53]. The FtT had asked the appellant about whether he and his partner had made any plans for the event that his protection appeal was unsuccessful and put it to him that it appeared that they were simply choosing to have their family life in the UK rather than in Iraq. The appellant had answered that “if he did not have a problem in Iraq he would return and make an application for entry clearance” but that he could not live in Iraq because he feared being killed: [55]
19. At [56]-[61], the FtT recorded that LM had given evidence in person and her sister MLM had given evidence by video link. No details of their evidence were set out at this stage.
20. At [63]-[70], the FtT recorded that Mr Allison had asked for the appellant to be recalled to answer a further question about his CSID, and that the FtT had permitted this.
21. At [72]-[76], the FtT recorded that the respondent’s Presenting Officer had made short oral submissions, but that Mr Allison had accepted the FtT’s offer to make post-hearing written submissions.
22. As I have noted above, the FtT dealt with the appellant’s protection claims at length from [78] –[117].
23. At [118]-[119], the FtT considered “Article 8 under the rules”. It found that the “family life aspect of this case cannot be brought within the immigration rules because the relationship has not existed for two years” and there were no very significant obstacles to the appellant’s reintegration in Iraq independent of the factual matrix of the appellant’s protection claim (which had been rejected).
24. The FtT then turned to the consideration of “Article 8 outside the rules”. It made the following findings about the couple’s relationship:
(i) “[T]he appellant has family life with LM and her son”: [121] The couple were “in a relationship”: [126]
(ii) The couple were not cohabiting, but they spent “a lot of time together” and the appellant stayed over three or four nights a week. There were no restrictions on the appellant moving in with LM, but that might trigger a reassessment of “any benefit”: [122]-[124]
(iii) The immigration rules recognised that a couple could be in a relationship similar to marriage even if they did not cohabit, but there was still a requirement that the relationship had existed for at least two years prior to the date of any application: [125]
(iv) The FtT was not satisfied that the couple had been in a relationship since May 2024 as they claimed. It set out its reasons at [127]-[134]. They were that: (a) the appellant only disclosed the relationship at the time of an adjourned hearing in July 2025; (b) there was no documentary evidence of the claimed date of the commencement of the relationship; (c) the couple relied on photographs taken in November 2025, and LM and her sister gave “significantly diverging” and “evasive” oral evidence when asked to explain the lack of any earlier photographs; (d) it put little weight on photographs said to be from May 2024, which were of LM’s son alone on a beach, or on an undated selfie of the appellant and the child; (e) there were significant gaps in the WhatsApp messages relied on and they were not in chronological order; there had been “far from full disclosure” in this regard; (f) the appellant had not mentioned the relationship in his July 2024 witness statement; and (g) the appellant claimed that he had gone to meetings with his solicitors together with LM, but the firm had provided no evidence of this, such as attendance notes;
(v) The couple clearly did not “share a language in which they can communicate fluently”, but they could communicate in English “to a degree”: [137];
(vi) The couple were evasive when cross-examined about their plans if the appeal were unsuccessful. It was “wholly unbelievable” that they had not considered this: [138]; and
(vii) LM’s pregnancy was “an indication of the nature of the relationship”: [139]
25. Paragraph [135] is at the heart of one of the appellant’s grounds of appeal, so I set it out in full:
“I give little weight to the evidence of MM […], because he lives in London, has not disclosed his own immigration history nor status and does not explain how he is a “close friend of the appellant and LM”. He also states that he has known the couple “since they first met “, implying that he did not know either of them prior to their meeting which he puts at “approximately a year and ½ ago.” I accept that he came to the hearing prepared to be cross-examined. However, [the respondent’s Presenting Officer] confirmed that she had no questions for this witness and in those circumstances his statement was admitted unchallenged. Perhaps the witness has known the appellant for longer than 18 months, because he makes an assessment of the appellant’s “personal and social life, since the commencement of the relationship”, implying knowledge of the appellant’s personal and social life before the relationship.”
26. Under the heading of “family life”, the FtT also made findings about the appellant’s relationship with C. At [132], in the course of explaining why the two photos of the child did not help establish that the couple’s relationship had begun in May 2024, the FtT said that it had “no doubt that the appellant and [C] have met and that they probably interact with each other in the general way that has been described. The issue is the length, extent and nature of their relationship. In my judgement there has been some exaggeration”: [132].
27. At [136], it found:
“I accept the appellant also has a relationship with LM’s son […] [Born 15 July 2017]. LM’s written evidence is detailed, anecdotal and reads with the ring of truth. The little weight that the written evidence of MM carries does tend to suggest that the appellant has a reasonable relationship with [C].”
28. At [139], it found that, as a matter of law, the couple’s unborn child had “no independent rights nor interests prior to the moment of birth”. Section 55 of the 2009 Act did not apply.
29. The FtT set out is conclusion on family life at [140]:
“weighing all be [sic] evidence in the round and adopting an holistic approach I am prepared to give the appellant and LM the benefit of the doubt and accept on the balance of probabilities that they are engaged in a relationship, amounting to family life.”
30. At [141], the FtT recorded that Mr Allison had conceded that the appellant could not succeed on “any separate private life basis”.
31. At [145]-[150], the FtT directed itself to various legal principles governing its assessment of whether removing the appellant from the UK would be a disproportionate interference with article 8, and regarding the best interests of the child.
32. At [152], the it adopted the familiar “balance sheet” approach, identifying 14 factors weighing in favour of granting the appellant leave to remain and 13 factors weighing in favour of his removal.
33. A number of the factors identified as weighing in favour of granting the appellant leave related to his relationship with LM. They were, in summary, that: the appellant and LM were in a relationship, although the FtT did not accept “the length of the relationship”; LM was pregnant with their child; LM was British by birth and had no connection with Iraq, and there was no prospect of her living in Iraq for various reasons; LM was in receipt of PIP and suffered from a chronic health condition that significantly impacted her mobility and quality of life; she had care needs arising from her disability, but she had managed these prior to her relationship with the appellant and she could approach social services if necessary.
34. The FtT took into account the following facts about C: he was eight years old, had no contact with his biological father, was British by birth, had no connection with Iraq and did not speak Kurdish. There was no prospect of him and his mother living in Iraq. With regard to the son’s relationship with the appellant, the FtT found:
“i) There is some evidence that the appellant is listed as an emergency contact in respect of the child. It is a screenshot, where his name and mobile number appears in the list of emergency contacts [SB 5]. However, it is undated and only produced just before the hearing. There is also a letter from the child’s primary school which confirms that the appellant is listed as an emergency contact and that he has been “present and involved with school”, he drops off and collects the child “to assist mum”. The class teacher has met him, and he is known as the mother’s partner. That letter is undated. It was disclosed on the morning of the appeal.
j) LM maintains that it would be in the best interests of [C] to continue to have the appellant in his life. That argument is supported by MLM and MM. This is the best interests of the child argument. I accept that the appellant has become a presence in the life of the child, has assisted with the school run and childcare and has interacted in a positive way with the child.”
35. The FtT also took into account that the appellant had not had recourse to public funds, but noted (correctly) that as a matter of law that attracted little positive weight. Finally, the FtT noted that the appellant had “been in the asylum system for over 6 years” but found that he was responsible for some of the delay in the progress of his appeal.
36. Weighing against the appellant were the following factors: the public interest in the maintenance of effective immigration control; the appellant’s failure to meet the immigration rules; “public confidence in the immigration rules”; the appellant’s immigration history; section 117B(4), which stipulated that little weight should be put on his relationship with LM because it was formed when he was in the UK unlawfully; and the fact that the relationship had commenced after the refusal of the asylum claim, when the couple knew that the appellant had no legal right to remain.
37. The factors that weighed against a grant of leave included the following findings about LM’s son:
“x) There is no real suggestion that LM was unable to care for her child, before meeting the appellant. She has the support of close family members, including her sister, her own parents and grandparents.
y) The best interests of DG are a primary consideration. However, they are not a trump card. No other consideration [such as immigration control] can rank higher than the best interests of the child. See Zoumbas. In my judgement there are competing factors, namely immigration control, which tip the proportionality balancing exercise in the respondent’s favour, weighing all the circumstances in the round. [C] has been bought up by his mother as a single mother for the vast majority of his life. Even accepting that the relationship has lasted more than 18 months [which I doubt], that is a relatively short period of time. The appellant’s involvement in the life of [C] has been relatively short. The child is well connected to his mother’s extended family.
z) There are no concerns in connection with [C]’s health and welfare.”
38. The FtT also listed the following considerations about the possibility of applying for entry clearance as among the factors weighing against the appellant:
“t) Younas (section 117B(6)(b); Chikwamba; Zambrano) [2020] UKUT 129 (IAC) establishes: “An appellant in an Article 8 human rights appeal who argues that there is no public interest in removal because after leaving the UK he or she will be granted entry clearance must, in all cases, address the relevant considerations in Part 5A of the Nationality, Immigration and Asylum Act 2002 (‘the 2002 Act’) including section 117B(1), which stipulates that "the maintenance of effective immigration controls is in the public interest”. […]
aa) I take judicial notice of the publicised relationship visa processing time of 12 weeks for applications abroad [https://www.gov.uk/uk-family-visa/partner-spouse]. Mr Allison submitted that the immigration rules imposed a mandatory 12 month ban on the appellant because he had entered the UK illegally. He also argued that there may be other difficulties in connection with the immigration rules. In my judgement an inability to meet the requirements of the immigration rules, is not a factor that carries any weight in the appellant’s favour in all the circumstances of this appeal.”
39. At [153]-[155], the FtT announced its conclusion on the proportionality question. This was that the cumulative factors on the appellant’s side failed to establish that there were exceptional circumstances that would result in unjustifiably harsh consequences for the appellant, LM or C, and that balancing exercise was resolved in the respondent’s favour. At [156]-[158], the FtT dismissed the appeal on all grounds.
The grounds of appeal and the respondent’s response
40. The appellant raises three grounds of appeal.
Ground One: Misdirection in law by failing to apply s.117B(6) of the 2002 Act.
41. Under this ground, the appellant submits that the FtT was required to apply section 117B(6) because it had accepted at [121], [136] and [152](j) that the appellant had family life with C and “[t]he only basis for such family life could be through a parental relationship as they are not related”. Given the finding that there was no prospect of C living in Iraq, if the FtT had applied section 117B(6), this would have resolved the article 8 assessment in the appellant’s favour.
42. In her Rule 24 response, the respondent argues that the FtT had not, in fact, found that the appellant had a parental relationship with C. She cited RK, R (on the application of) v SSHD (s.117B(6); “parental relationship” [2016] UKUT 31 (IAC) for the principle that if there was no parental relationship, section 117B(6) did not apply.
Ground Two: Failure to give any or adequate reasons for finding that A’s inability to meet the Immigration Rules carried no weight
43. The appellant submits that at the hearing, the FtT “canvassed the question” of whether dismissal of the appeal would result in the couple’s permanent separation.
44. The appellant relies on his post-hearing submissions, which were attached to the grounds of appeal. These establish that the appellant’s argument was that the prospects of an application for entry clearance succeeding were low because, although the couple might meet the financial requirements of the rules based on LM’s receipt of PIP, the “definition of partner cannot be met now” (as they did not claim to have lived together for two years) and it would be “difficult to prove a relationship similar to marriage following [the appellant’s] removal”. Moreover, the appellant would be subject to a mandatory 12-month ban on returning to the UK under the new suitability rules, due to his illegal entry. The submissions on this issue concluded:
“The best-case scenario is separation and uncertainty for substantially more than a year, taking into account visa processing times, at a point when [LM] is most in need of support (i.e. early stages of pregnancy). The worst-case scenario is that she and the child she is expecting are prevented from having any meaningful relationship with A [the appellant].”
45. The appellant submits that the FtT was required to give reasons as to why his “inability” to return to the UK should carry no weight, given the “consequences of permanent separation”.
46. In her rule 24 response, the respondent submits that the FtT’s finding on this issue was open to it, when all of the factors listed at [152] were taken into account.
Ground Three: Failure to provide adequate reasons and/or reaching an irrational conclusion regarding finding that Appellant’s relationship with his partner did not commence around May 2024 as asserted
47. The appellant submits that the appellant had adduced WhatsApp messages from three dates in May 2024, two dates in June 2024 and one date in July 2024, and that the content of these messages was consistent with the couple being “in the early stages of a relationship”. He points to the use of terms of endearment such as “honey”, “darling” and “sweetheart” and submits that it was irrational to conclude that the relationship began “substantially later than May 2024”, given the messages’ “tone and content”. It was highly implausible that the couple would have exchanged “contrived” messages, as submitted by the Presenting Officer below, at a time when they were not yet in a relationship, but that they then entered into a genuine relationship at a later date.
48. The respondent replies that the decision must be read as a whole, and that when this is done, the reasons for finding that the relationship did not begin in May 2024 as claimed were rational and adequate.
Ground Four: Procedural unfairness arising from attachment of ‘little weight’ to the evidence of a witness who was not required to give oral evidence by the Respondent
49. The appellant relies on TUI v Griffiths [2023] UKSC 48 to argue that it was procedurally unfair for the FtT to have put little weight on MM’s statement, given that he was not cross-examined.
50. The respondent replies that the FTT was entitled to put little weight on the statement based on an assessment of its unchallenged contents.
Legal Framework
51. It is not my role to decide whether the appellant’s removal would be a disproportionate interference with his family life. It is my role to decide whether the FtT erred in law when it found that it would not be. In exercising that role, I must bear in mind the principles reiterated in numerous cases, most recently in ECO v BB & Ors [2026] EWCA Civ 97 at [56]:
(i) The FTT is a specialist fact-finding tribunal. The UT should not rush to find an error of law simply because it might have reached a different conclusion on the facts or expressed themselves differently;
(ii) Where a relevant point was not expressly mentioned by the FTT, the UT should be slow to infer that it had not been taken into account;
(iii) When it comes to the reasons given by the FTT, the UT should exercise judicial restraint and not assume that the FTT misdirected itself just because not every step in its reasoning was fully set out;
(iv) The issues for decision and the basis upon which the FTT reaches its decision on those issues may be set out directly or by inference;
(v) Judges sitting in the FTT are to be taken to be aware of the relevant authorities and to be seeking to apply them. There is no need for them to be referred to specifically, unless it was clear from their language that they had failed to do so;
(vi) Reasons will always be capable of having been better expressed. An appeal court should not subject a judgment to narrow textual analysis. Nor should it be picked over or construed as though it was a piece of legislation or a contract. : Volpi & Anor v Volpi [2022] EWCA Civ 464 at [2](6); and
(vii) An appellate court should avoid “island-hopping”. Fage v Chobani [2014] EWCA Civ 5.
52. On the specific issue of whether the appellant has a parental relationship with C, both parties rely on RK, R (on the application of) v SSHD (s.117B(6); “parental relationship” (IJR) [2016] UKUT 31 (IAC). This sets out:
“42. Whether a person is in a "parental relationship" with a child must, necessarily, depend on the individual circumstances. Those circumstances will include what role they actually play in caring for and making decisions in relation to the child. That is likely to be a most significant factor. […] What is important is that the individual can establish that they have taken on the role that a “parent” usually plays in the life of their child.
43. […] in effect, an individual must “step into the shoes of a parent” in order to establish a “parental relationship”. If the role they play, whether as a relative or friend of the family, is as a caring relative or friend but not so as to take on the role of a parent then it cannot be said that they have a “parental relationship” with the child. It is perhaps obvious to state that “carers” are not per se “parents.” A child may have carers who do not step into the shoes of their parents but look after the child for specific periods of time […] [there may be] an element of dependency between the child and his or her carers. However, that alone would not, in my judgment, give rise to a “parental relationship.”
44. If a non-biological parent ("third party") caring for a child claims such a relationship, its existence will depend upon all the circumstances including whether or not there are others (usually the biologically parents) who have such a relationship with the child also. […]”
53. The appellant also relies on SR (subsisting parental relationship - s117B(6)) Pakistan [2018] UKUT 334 (IAC) at [35] and [40] and SSHD v AB (Jamaica) [2019] EWCA Civ 661 at [86]-[98]. The former endorses the fact-sensitive approach of RK and clarifies that a parent may have a genuine and subsisting parental relationship with their child even if their contact is limited and they are not involved in making the important decisions in a child’s life. The latter endorses both RK and SR and confirms that the assessment must be fact-sensitive and that there is no requirement that there be an element of “direct parental care”.
54. With regard to the FtT’s treatment of MM’s evidence, I begin with what is said in Abdi & Ors v ECO [2023] EWCA Civ 1455 [29], which post-dated TUI and took it into account. In Abdi, Popplewell LJ, with whom Arnold LJ and King LJ agreed, summarised and endorsed the principles of procedural fairness “in the context of immigration cases” that had been articulated by Lord Reed in HA v SSHD (No 2) [2010] SC 457 [2010] CSIH 28. These are:
(i) “What fairness requires is essentially an intuitive judgment which is dependent on the context of the decision”; whether there has been unfairness is therefore fact-sensitive;
(ii) There is no general obligation on the tribunal to give notice to the parties during the hearing of all the matters on which it may rely in reaching its decision;
(iii) The First-tier Tribunal is “an expert body”, and it is entitled to reject evidence that has not been challenged before it;
(iv) Where an appellant can generally be expected to be aware that the tribunal will have to assess their credibility, there will generally be no unfairness if the tribunal fails to draw the appellant’s attention to a point which they could reasonably expect to be plainly relevant to that assessment;
(v) However, if the tribunal identifies an issue that has not been raised by the parties, it will ordinarily be unfair for it to base its decision on its view of this issue without giving the parties an opportunity to address it upon the matter.
55. In TUI, the Supreme Court endorsed the general principle that “a party is required to challenge in cross-examination the evidence of any witness of the opposing party if he wishes to submit to the court that the evidence should not be accepted on that point”.: [42] This was described as a requirement of fairness ([43]) and “fair play” [45] (citing Browne v Dunn (1893) 6 R 67):
“it will not do to impeach the credibility of a witness upon a matter on which he has not had any opportunity of giving an explanation by reason of there having been no suggestion whatever in the course of the case that his story is not accepted.” (citing Browne)
56. It was also a question of “the integrity of the court process itself in enabling the judge to reach a sound conclusion” that witnesses be cross-examined before their evidence was rejected. This allowed a judge to see how a witness responded to the criticisms of their evidence and decide if they were persuaded by their answer: TUI at [54]-[55] (citing Tullow Uganda Ltd v Heritage Oil and Gas Ltd [2013] EWHC 1656).
57. This not a rigid or inflexible rule, however, and at [61]-[68], the Court set out a number of circumstances in which it may not apply. These were articulated in the context of the key issue in TUI, which was whether the trial judge was entitled to reject the opinion of an expert witness, when the expert had not been cross-examined. These include:
(i) If the matter on which the witness’ evidence is challenged is “collateral or insignificant”;
(ii) If there is no challenge to the witness’ character or competence;
(iii) If the evidence is manifestly incredible;
(iv) If the witness’ evidence is a “bare ipse dixit”, that is, an assertion of opinion without any reasoning to support it;
(v) If there is an obvious mistake in the evidence, such as a clear lack of logic or inherent inconsistency;
(vi) If the witness’ evidence of facts is contrary to the basis on which the expert expressed their expert opinion; and
(vii) If the expert had already been given a fair opportunity to respond to criticisms of their opinion, such as in response to written questions.
58. Although it does not appear in this list, I consider it clear – as reiterated in Abdi – that there is another exception, which is where the witness knows that their credibility is not accepted and the credibility point eventually taken against them is an obvious one. See TUI at [46] (citing Lord Hershell in Browne v Dunn as saying that “there was no need to waste time by cross-examining a witness where it is perfectly clear that he had prior notice that the opposing party intended to impeach the credibility of the story which he was telling.”)
59. Since this appeal was heard, the Court of Appeal considered this issue again in MR (Pakistan) v SSHD [2026] EWCA Civ 473. Laing LJ held at [76] that the list of exceptions to the requirement to cross-examine set out at [61]-[68] of TUI was not exhaustive. She further held, at [78], that:
“the rule is not a rule that (subject to exceptions) a party to litigation may not make submissions impugning the credibility or reliability of the evidence of a witness unless the witness has been cross-examined about those points. The rule […] is narrower than that. It is based on fairness, and on the principle […] that litigation should not be conducted by ambush. The rule does not apply if the witness already knows, because the questions have been articulated earlier in the litigation, that his evidence is disputed, and, he is not, therefore, taken by surprise. The rule, rather, is that if he does not know in advance about the disputed matters, and has not been cross-examined about them, submissions cannot be made impugning his credibility (unless an exception to the rule applies).”
60. Snowden LJ agreed that the appeal should be dismissed and emphasised that the rule requiring cross-examination reflects the unfairness of taking a point against a witness when they have not had prior notice of it or an opportunity to deal with it: [93]-[94]
61. Asplin LJ agreed with both of these opinions.
The Hearing
62. At the hearing before me, I had sight of:
(i) The FtT’s determination of 2 March 2026;
(ii) The appellant’s grounds of appeal, dated 16 March 2026;
(iii) The appellant’s post-hearing submissions to the FtT, dated 10 February 2026;
(iv) The grant of permission to appeal, dated 20 April 2026;
(v) The respondent’s Rule 24 response, dated 5 May 2026; and
(vi) 21 separate documents identified on CE File as the FtT bundle.
63. The appellant’s Upper Tribunal bundle was not processed until the morning of the hearing, and I informed Mr Allison that I had not had time to consider it. Once the parties assisted me in locating MM’s statement, I was satisfied that I had had sight of all of the documents necessary for my decision.
64. I heard submissions from both parties, for which I am grateful and which I have taken into account in making my decision. I will refer to them where relevant in the discussion below.
Discussion
Ground One
65. As expressed in the written grounds of appeal, ground one is that the FtT had made a finding that the there was a genuine and subsisting parental relationship between the appellant and C and that therefore it erred by not applying section 117B(6). At the hearing before me, Mr Allison argued that, in the alternative, if the FtT did not find that there was a parental relationship between the appellant and C, then it had erred by failing to make a finding on that key issue.
66. I find that this ground is not made out, in either formulation.
67. I have set out the FtT’s findings about the relationship between the appellant and C above. They were that they had a “reasonable relationship”, but there had been some exaggeration about its “length, extent and nature”. The appellant was “a presence in the life of the child, has assisted with the school run and childcare and has interacted in a positive way with the child”, but the period of his involvement in C’s life was “relatively short”.
68. None of these specific findings were challenged, but Mr Allison relied heavily on the finding at [121] that “the appellant has family life with LM and her son”. He submitted that this could not mean anything other than family as a parent, because there was no other type of family life that could be in issue.
69. I am required by the guidance I have quoted above at [47] to engage with the substance of the FtT’s reasoning, rather than the precise form of words used, and to consider the determination as a whole, rather than taking single comments out of context. Having done so, I consider it clear that the FtT did not intend to make a finding at [121] that there was a parental relationship between the appellant and C. In the first place, the comment was made at the beginning of a section of the decision that was devoted primarily to the question of whether the appellant and LM were in a genuine and subsisting partnership, and that is the main point of the sentence quoted. Secondly, given that the appellant is not C’s biological father, finding that there was family life between them did not necessarily imply, as a matter either of law or of logic, that it was a parental relationship. It is trite law that family life may take many forms and that whether it exists is a matter of fact, rather than of the particular legal label applied to the relationship. In other words, there is no inconsistency or irrationality in finding, first, that there was family life between the appellant and C and later, that their relationship was not that of a parent and child.
70. Secondly, looking at the substance of the FtT’s reasoning, I consider it clear that it contains a finding that the relationship fell far short of a parental one. That is the obvious implication of the description of the relationship as I have summarised at [67] of my decision above. It might have been helpful in avoiding an onward appeal if the FtT had spelt out that the “reasonable relationship” formed during the short period of time that the appellant had been a “presence” in C’s life, “interacted in a positive way” with him and assisted his mother with childcare was not a parental relationship, but I consider the implication to be an obvious one. There was no legal error in not spelling it out more explicitly.
71. Because the FtT did not find that there was a parental relationship between the appellant and C, it was under no legal obligation to take section 117B(6) into consideration.
Ground Two
72. I find that ground two also relies on reading the challenged finding in isolation, rather than in the context of the decision and a whole. The challenged finding was the last of 27 specific findings. Moreover, the FTT incorporated those previous findings by reference when it said that “an inability to meet the requirements of the immigration rules, is not a factor that carries any weight in the appellant’s favour in all the circumstances of this appeal”. Those findings included that: little weight could be put on the couple’s relationship in accordance with section 117B(4); they had entered into the relationship knowing that the appellant was in the UK unlawfully; they had not been honest in their evidence about their plans in the event that the appeal was unsuccessful; their relationship was of short duration, as was the appellant’s relationship with C; LM had the support of close family members and potentially of social services; and she had managed both her own lifelong disability and caring for C as a lone parent prior to her relationship with the appellant. All of these findings were made without reference to the length of any future separation of the couple and there is nothing to suggest that they were made only with reference to a short rather than a permanent separation. The FtT had also found that there were multiple reasons that it weighed against the appellant that he did not meet the immigration rules, which would be inconsistent with weighing his failure to meet them in a future application in his favour.
73. For these reasons, I find that when the decision is read as a whole, as it must be, the FtT gave sufficient reasons for treating the fact that the appellant might not be able to meet the entry clearance rules as a factor that weighed in his favour.
Ground Three
74. Ground three depends even more on taking a single finding out of context than do grounds one and two. The FtT gave multiple reasons for finding that the couple had not established that their relationship had begun in May 2024 as claimed, and the appellant challenges only one of them in his grounds. The FtT also gave specific reasons for putting little weight on the WhatsApp messages. This included that there had been “far from full disclosure” of the messages. That was a rational finding to make, given that even on Mr Allison’s count the appellant had disclosed only six messages exchanged between May and July 2024. The FtT did not, moreover, find that the messages were “contrived” as submitted by the respondent below, and therefore Mr Allison’s submission that this is implausible is irrelevant.
75. It is also important to recognise that the question the FtT was deciding here was when the couple’s relationship as partners began, not when they first met or started dating. In his written grounds, Mr Allison that the messages “Morning honey”, “I’m good darling thanks” and “Thanks my sweetheart” were “consistent” with the couple being “in the early stages of a relationship”. That may be. But it does not make it irrational to find that they had not yet become partners, particularly given the lack of any other evidence of this and the inconsistencies and evasiveness in the explanations for the lack of evidence.
76. The threshold for a finding or irrationality is a high one. The appellant has fallen far short of meeting it here.
Ground Four
77. I do not consider that there was any procedural unfairness in the FtT putting little weight on MM’s statement when it found that the couple had not established that their relationship began in May 2024.
78. The appellant’s relationship was a “new matter”, because it had not been considered by the respondent in the decision refusing the appellant’s protection claim. The respondent nonetheless consented to it being considered in the appeal, and on 14 October 2025, she conducted a review of her position in light of it. It does not appear that MM’s statement was before her, even though it is dated 29 August 2025. The review refers to a 23-page bundle of evidence filed on 1 September 2025, and the only 23-page bundle in the documents before me does not contain MM’s statement. Nor does the consolidated bundle filed at just before midnight on the night before the hearing assist with this question.
79. The respondent’s review therefore could not have put the appellant on notice that MM’s statement, specifically, was worthy of little weight. However, the review did put the appellant on notice that the genuineness of his relationship with LM was not accepted, due to the limitations of his evidence. The respondent noted in the review that the partner’s statement lacked details of their relationship, there was a lack of photographic evidence, there was no explanation of how they met and the text messages they had submitted did not have “any depth”.
80. According the Practice Direction of the Immigration and Asylum Chamber of the First-tier Tribunal of 1 November 2024,
“8.1. If an appellant seeks to rely on testimonial evidence, witness statement(s) from any such witness(es) must be provided. Witness statements should be included in bundles as set out above.
8.2. A witness statement should be capable of standing as the totality of the evidence-in-chief of the person giving that statement.
8.3. A witness statement may be added to by the provision of a supplementary statement provided that the supplementary statement is produced and served in accordance with any directions given in the appeal.
8.4. Only where there is good reason and with the permission of the judge, will a witness be permitted to provide additional evidence-in-chief.”
81. The appellant was represented during the proceedings before the FtT, as detailed at [19]-[22] of the FtT’s determination. His representatives will have known of the Practice Direction, and that MM’s statement needed to be capable of standing as the totality of his evidence. The appellant and his representatives were on notice that the respondent intended to challenge the genuineness of his relationship with LM based on the limitations and vagueness of the evidence they had adduced. They were therefore aware of the requirement to produce witness statements that added significant detail to their account. Given what is said in the Practice Statement, they cannot have expected that their witnesses would be provided with an opportunity to expand on their witness statements in cross-examination.
82. In the grounds of appeal, the appellant complains that MM was “denied an opportunity to clarify the matters identified” by the FtT because the respondent decided not to cross-examine him “in circumstances where the factual matters within the statement remained in dispute.”
83. At the hearing before me, Mr Parvar submitted that the FtT put little weight on MM’s statement because of the gaps in his evidence. I agree. The FtT says that it put little weight on MM’s statement not because he rejected MM’s general credibility, but because the statement was vague about multiple issues that the FtT considered relevant. These included MM’s own immigration history, how he was a “close friend” of the couple (especially given that he lived in London and they did not) and how long he had known them.
84. Mr Parvar further submitted that there is a general expectation that appellants will address any gaps in their evidence of their own motion, rather than relying on cross-examination by the respondent.
85. Mr Allison responded that “it is the respondent’s responsibility to cross-examine” and that as the appellant’s representative, it would have been difficult for him to seek to elicit evidence that was not in the witness statement.
86. I agree with Mr Parvar. The appellant’s representatives knew that the evidence of their client’s relationship with his partner was considered limited and vague. They then supplied a witness statement from one of the appellant’s friends that the FtT put little weight on because of its gaps and vagueness. They knew that the Practice Direction required that witness statement to be “capable of standing as the totality of the evidence-in-chief”. There was no unfairness in the FtT not requiring the respondent to cross-examine the witness in order to provide the witness with an opportunity to expand on his evidence. I consider the situation analogous to the exception to the requirement to cross-examine an expert before rejecting a bare assertion.
87. For these reasons, I find that the decision of the FtT did not contain any material error of law.
Notice of Decision
The First-tier Tribunal’s determination of 2 March 2026 is upheld. The appellant’s appeal is dismissed.

E. Ruddick

Judge of the Upper Tribunal
Immigration and Asylum Chamber

6 August 2026