Tribunal decisions

The decision

IN THE UPPER TRIBUNAL
IMMIGRATION AND ASYLUM CHAMBER Case No: UI-2026-002092
First-tier Tribunal No: HU/62148/2024

THE IMMIGRATION ACTS

Decision & Reasons Issued:

On 3rd of September 2026

Before

UPPER TRIBUNAL JUDGE HIRST

Between

Secretary of State for the Home Department
Appellant
and

Jane Nduku Musau
(NO ANONYMITY ORDER MADE)
Respondent

Representation:
For the Appellant: Ms Khan, Senior Home Office Presenting Officer
For the Respondent: Ms Nwachuku, counsel by direct access

Heard at Field House on 23 July 2026

DECISION AND REASONS
1. The Secretary of State appeals from the decision of the First-tier Tribunal dated 25 March 2026 allowing the Respondent's appeal on human rights grounds.
2. For the reasons set out below, I have decided that there was a material error of law in the First-tier Tribunal’s decision and have set the decision aside. The appeal is remitted to the First-tier Tribunal for rehearing before a different judge.
Background
3. The Respondent is a citizen of Kenya. She entered the UK on 25 April 2022 on a visit visa valid to 25 October 2022 and thereafter overstayed. On 14 May 2024 she applied for leave to remain on Article 8 grounds as the unmarried partner of a British citizen. That application was refused on 10 September 2024 and the Respondent appealed the decision. Prior to the appeal hearing, on 14 July 2025 the Respondent married her partner.
4. The Respondent's appeal came before the First-tier Tribunal on 24 March 2026. Before the First-tier Tribunal it was accepted that the Respondent and her husband were in a genuine and subsisting marriage. The issues for the Tribunal to determine were whether the Respondent met paragraph EX.1(b) of the Immigration Rules and if not, whether Article 8 outside the Rules was satisfied. The First-tier Tribunal found that there were insurmountable obstacles to family life continuing in Kenya and allowed the appeal under the Immigration Rules.
5. The Secretary of State appealed. Permission to appeal was granted by the First-tier Tribunal on 24 April 2026 and the appeal came before me at an error of law hearing on 23 July 2026. Having heard submissions from the parties I reserved my decision.
Grounds of appeal
6. The Appellant relied on a single ground of appeal, namely that the First-tier Tribunal had misdirected itself in allowing the appeal under paragraph EX.1(b) of Appendix FM to the Rules. In particular, the Appellant contends that the First-tier Tribunal erred by:
a. Failing to apply the elevated threshold required when considering whether there were insurmountable obstacles to family life continuing outside the UK;
b. Failing to adequately assess the nature and extent of the sponsor’s caring responsibilities in the UK;
c. Failing to consider whether the Respondent could reasonably return to Kenya and make an application for entry clearance;
d. Failing to carry out a lawful proportionality assessment and to apply the considerations in s117B Nationality, Immigration and Asylum Act 2002.
Summary of submissions
7. On behalf of the Appellant, Ms Khan submitted that the findings made at paragraph 9 of the First-tier Tribunal’s decision pointed to the feasibility of family life continuing outside the UK. The First-tier Tribunal had relied on the sponsor’s caring responsibilities for his father and minor children, but had found at paragraph 11(j) that contact with his family members was neither frequent nor regular. There had been no evidence in respect of the medical conditions or care needs of the sponsor’s father, and the evidence showed that the sponsor’s children lived with his ex-wife. Further, the First-tier Tribunal had materially misdirected itself when assessing proportionality: the sponsor’s relationship with the Respondent had been formed whilst her status was precarious and therefore should have been given little weight, and the First-tier Tribunal had not given any weight to the public interest in immigration control. The judge had not made any finding about whether the Respondent could return to Kenya to make an entry clearance application.
8. During the course of Ms Khan’s submissions, it became apparent that the First-tier Tribunal judge had made conflicting findings about the contact between the sponsor and his children and father. At paragraphs 9(f) and 9(g) of the decision, the judge found that contact between the sponsor and his children and father was regular, but at paragraph 10(j) the judge found that contact was not frequent and not regular. The apparent inconsistency was not explained or resolved elsewhere in the decision.
9. On behalf of the Respondent, Ms Nwachuku accepted that there was an inconsistency in the judge’s findings. However, she submitted that reading the decision as a whole it was clear that the First-tier Tribunal judge had accepted, on the basis of oral evidence, that the sponsor’s relationships with his father and children were sufficiently important that he could not live in Kenya. The Upper Tribunal should be cautious about disturbing a decision where the first instance judge had had the benefit of hearing oral evidence. The judge had not made any finding about the proportionality of returning to Kenya to make an entry clearance application because the judge had found that the Respondent met the requirements of the Immigration Rules.
Discussion and decision
10. Paragraph EX.1(b) applies where
“the applicant has a genuine and subsisting relationship with a partner who is in the UK and is a British Citizen, settled in the UK or in the UK with refugee leave or humanitarian protection, and there are insurmountable obstacles to family life with that partner continuing outside the UK”
11. Paragraph EX.2 provides:
“For the purposes of paragraph EX.1(b)
‘insurmountable obstacles’ means the very significant difficulties which would be faced by the applicant or their partner in continuing their family life together outside the UK and which could not be overcome or would entail very serious hardship for the applicant or their partner.”
12. The question of whether there are obstacles to family life continuing outside the UK, and whether those obstacles can properly be described as “insurmountable”, is highly fact-sensitive and requires a careful consideration of the circumstances of the individual case.
13. In this appeal, the Respondent’s case was that family life with her husband could not continue outside the UK because her husband had caring responsibilities in the UK for (i) his five children from his previous marriage, who were aged between 14 and 24, and (ii) his father, who had dementia and was living in a care home in Yorkshire.
14. The First-tier Tribunal judge set out his findings on the evidence at paragraph 9 of the decision. He found that the sponsor had “regular telephone and internet contact with each of his children” and residential contact with the three youngest children. He had last had residential contact with his children in October 2025 (five months before the First-tier Tribunal hearing). The two oldest children were independent and lived with their partners; the three youngest children were teenagers and lived with their mother. One of the younger children had a diagnosis of autism; the other two had been diagnosed with ADHD and were undergoing assessment for autism. The judge found that the sponsor was in “regular contact with his father” although he had last visited his father one year ago. He found that the sponsor was committed to his relationship with each of his five children and with his father.
15. At paragraph 10 of the decision, the First-tier Tribunal set out its reasoning as to whether paragraph EX.1(b) applied. At 10(i) the judge described the written evidence as “thin” and noted that it was the oral evidence which had enabled him to make findings of fact. Whilst at paragraphs 9(f) and 9(g) of the decision the judge described the contact between the sponsor and his father and children as “regular”, at paragraph 10(j) the judge stated that “The appellant’s husband’s contact with his father and his children is not frequent and it is not regular, but the quality of the contact is impressive.”
16. The judge’s reasoning discloses several errors. First, the judge’s findings as to the quality of the contact between the sponsor and his father and children were inconsistent. Reading the judgment as a whole, it is not possible to tell whether the judge found that contact was regular (as described in paragraph 9) or not regular (as described in paragraph 10). Because the contact between the sponsor and his family members was a central plank of the Respondent's case, it was incumbent on the First-tier Tribunal to make clear findings about the quality of that contact.
17. Second, the nature of the contact between the sponsor and his family members was not such that the judge could properly conclude that it constituted an insurmountable obstacle to the sponsor moving to Kenya with the Respondent. On the findings made by the judge at paragraph 9, the sponsor had not had face-to-face contact with his children in five months and had not visited his father for a year. The judge did not identify any evidence which explained why telephone and internet contact between the sponsor and his family members could not continue from Kenya, or why apparently infrequent face-to-face contact could not be carried out via visits to the UK.
18. The judge’s conclusion at paragraph 10(k) that the sponsor’s existing family commitments prevented him from leaving the UK, and that there was therefore an insurmountable obstacle to family life continuing in Kenya, was therefore materially flawed.
19. Although the Appellant’s grounds of appeal and submissions also addressed the lack of reasoning in relation to s117B Nationality, Immigration and Asylum Act 2002, the conclusion that the Immigration Rules were satisfied was determinative of the appeal and the judge was not required to consider Article 8 outside the Rules. However, the material errors in the judge’s consideration of paragraph EX.1(b) mean that the First-tier Tribunal decision must be set aside and the appeal reheard.
20. Having regard to paragraph 7 of the Practice Statement and the guidance in AEB [2022] EWCA Civ 1512, I consider that the appeal should be remitted to the First-tier Tribunal for rehearing de novo before a different judge.
Notice of Decision
The decision of the First-tier Tribunal involved the making of a material error of law and is set aside.
The appeal is remitted to the First-tier Tribunal for rehearing before a different judge with no findings preserved.

L Hirst
Judge of the Upper Tribunal
Immigration and Asylum Chamber

25 August 2026