Tribunal decisions

The decision

IN THE UPPER TRIBUNAL
IMMIGRATION AND ASYLUM CHAMBER Case No’s: UI-2026-002447
UI-2026-002449
UI-2026-002448

First-tier Tribunal No’s: PA/00810/2023
PA/00812/2023
PA/00811/2023

THE IMMIGRATION ACTS

Decision & Reasons Issued:

3rd of September 2026

Before

UPPER TRIBUNAL JUDGE REEDS

Between

H1, H2 and H3
(ANONYMITY ORDERS MADE)
Appellants
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: Mr Badar, Counsel instructed on behalf of the appellants
For the Respondent : Mr Diwnycz, Senior Presenting Officer on behalf of the respondent

Heard at (IAC) on 19 August 2026

DECISION AND REASONS
1. The appellants appeal with permission against the decision of the First-tier Tribunal Judge (hereinafter referred to as the “FtTJ”) who dismissed the appellants protection and human rights appeal in a decision promulgated on the 4 February 2026 .
2. Permission to appeal that decision was sought and a grant of permission was issued by a Judge of the First-tier Tribunal on 1 May 2026.
3. The FtTJ did not make an anonymity order, however UTJ Loughran made an anonymity order on 27 May 2026 on the basis that the first appellant claims to be at risk on return to Pakistan. No application was made to discharge or vary the order and for the purposed of these proceedings to order remains in place. No-one shall publish or reveal any information, including the name or address of the Appellants, likely to lead members of the public to identify the Appellants. Failure to comply with this order could amount to a contempt of court.
Background:
4. The appellants are nationals of Pakistan. The first appellant is the mother of the second and third appellants. In respect of their immigration history, applications for family visit visas for all three family members were submitted to the ECO. The visas were subsequently granted being valid from 26 August 2013 until 26th February 2014. The three appellants entered the United Kingdom on 28 September 2013 in accordance with the terms of their visas. The first appellant was an adult and her two children were aged 12 and 15 years of age when they entered the UK. However, when their visas had expired in February 2014, no applications were made to regularise their immigration status. It is not clear from the FtTJ decision, but from the material set out in the respondent’s review, it appears that the first appellant made an application on human rights grounds to remain in the United Kingdom in or about May 2019 which was refused. It is recorded that on 29 October 2019, they made an application for asylum. Those applications were not determined by the respondent until dates in 2023. There were 3 decision letters issued in respect of each of the appellants - the first appellant’s decision was made on 11 September 2023 which refused her protection and human rights claim. The decision in respect of the second appellant, was made on 19 May 2023 as was the decision made in respect of the third appellant. The respondent therefore refused all three applications.
5. They subsequently appealed the decisions reached which led to a case management review on 8 May 2024. The subsequent litigation history will be referred to in due course.
6. In a decision promulgated on 4 February 2026 , the FtTJ dismissed their appeals. During the assessment of the evidence the FtTJ set out adverse credibility findings made in respect of the first appellant which related to her claim that she was a victim of domestic violence in Pakistan and that “the evidence presented does not support the appellant’s assertion that she suffered domestic violence whilst residing in Pakistan throughout her submissions in interviews she has failed to provide credible or substantiated accounts of abuse, and her narrative regarding threats from her husband lacks plausible motivation and consistency” (see paragraph 31). The FtTJ found that the authorities in Pakistan could provide her with protection. In relation to human rights (Article 8) the FtTJ found that there were no insurmountable obstacles to the appellants returning to Pakistan, that they had not engaged any significant activities or established substantial roots. Nor did the judge find that they will face any unjustifiably harsh consequences as a result of returning to Pakistan as a family unit. Thus, the appeals were dismissed.
The hearing before the Upper Tribunal:
7. The appellants sought permission to appeal the decision on 4 grounds.
8. Permission to appeal was granted by FtTJ Turner on 1 May 2026 for the following reasons:
“The grounds assert that the Judge erred in considering the Appellant’s protection appeal despite the Appellant’s representatives indicating that this aspect of the appeal was no longer pursued on account of the delay. It is further argued that whilst assessing the protection appeal, the IJ went behind the concession made by the Respondent in relation to the history of domestic violence which would have impacted on the overall assessment of the Appellants’ human rights claim and general credibility.
Both of these arguments are valid. The IJ makes no reference to the protection claim being withdrawn nor does the IJ address any concession from the Respondent. The Appellant has identified an arguable error of law.
The Appellants also argue that the IJ fails to consider all relevant evidence including the second psychiatric report served. The determination makes reference to a singular psychiatric report rather than two. This may have impacted on the overall human rights assessment.
It is argued that the IJ applied the wrong test when assessing the human rights claim. Whilst the IJ is not required to set out each legal test applied, it needs to be clear which test is applied and why. The determination fails to show which test has been applied to the facts and as such it is argued that insufficient reasons have been given.
The Appellant has identified multiple errors of law and permission to appeal is granted.”
9. In directions sent to the parties, the respondent was directed to file and serve on the Tribunal and the other party a Rule 24 response. This was provided on 17 August 2026 which stated : “The respondent accepts that the First-tier Tribunal has putatively erred , namely, on the treatment by the FTT of the no-longer-extant reliance on the protection claims of the appellants,, and the concessions made by the SofS in the refusal decisions, as detailed in a commendably brief decision by the learned Judge granting permission to the Upper Tribunal. It is submitted that the acknowledgement of putative errors, which if found to be made out by The Upper Tribunal, must render the FTT decision unsustainable.”
10. At the hearing, Mr Badar of Counsel appeared on behalf of the appellants by way of a remote link and Mr Diwnycz appeared on behalf of the respondent at the hearing centre. The second and third appellants were also in attendance at the Tribunal.
11. At the beginning of the hearing, I asked Mr Badar if his instructing solicitors were able to provide a copy of the case management directions made by the FtT which had been set out in the grounds of appeal as relevant to ground 1 and the issue that related to the concession and its withdrawal. The consolidated bundle of documents provided none of the case management orders made nor any note of the proceedings held before the FtT. The CCD (electronic case notes) was not accessible to the Upper Tribunal for this purpose. I also enquired about the second psychiatric report which was the subject of ground 4 and for confirmation as to the circumstances in which that report had been commissioned. Mr Diwnycz was asked if he had any of the case management orders and if the PO notes were available. The appeal was stood down for those enquiries to be made.
12. Following this Mr Badar provided a copy of the Directions given by FtTJ Fisher on 6 June 2025. Mr Diwnycz provided two documents. First, a copy of the note taken by the Presenting Officer at the hearing on 6 June 2025 and a note relating to the hearing on 23 October 2025 (FtT hearing). Mr Badar was not able to assist as to what circumstances led to the commission of the second psychiatric report. Both parties were able to consider those documents and neither advocate sought any further time and Mr Badar did not make raise any issue as to those documents being admitted into the proceedings or seek an adjournment to obtain any further documents. However, for the purposes of this decision, I recognise and take into account that the PO notes are not an agreed note, there may be errors in them and there are no corresponding notes from Counsel. I do not undertake the assessment of factual issues by regard to those notes for those reasons. The order of Judge Fisher however is a matter of record.
13. On resuming the hearing Mr Badar took the Tribunal through the grounds of challenge and by reference to the material in the composite bundle relying on the four grounds of challenge. Mr Diwnycz responded to those grounds in support of the matters raised on behalf of the appellants. I am grateful for the submissions given by the parties and the assistance provided by them. It is not necessary to set out those submissions and they will be referred to as relevant when considering the four grounds of challenge.
Decision on error of law:
14. Dealing with ground 1, Mr Badar relies upon the grounds. He submits that the appellants relied upon a replacement skeleton argument (dated 10/6/25) which made it clear that the appellants no longer relied upon the protection claim that had been made but that they only relied upon Article 8 of the ECHR. He submitted that this was corroborated by the PO note for the hearing and that the appellants were no longer pursuing the asylum claim and was relying on the issue of “very significant obstacles” under the Rules and also very compelling circumstances outside of the Rules. He submits that the FtTJ did not engage with that in the decision and that it was not apparent from the decision the basis upon which the FtTJ addressed the issues. He submits the paragraphs 31 – 36 of the FtTJ decision was geared towards the asylum claim which was no longer being pursued.
15. Whilst it had not been referred to in the grounds he relied upon the decision of MH (Appendix EU; withdrawal of concession) Albania [2025] UKUT 351 and that the FtTJ hearing the substantive appeal did not comply with paragraph 3 of the guidance in the headnote of MH. It was submitted that the PO at the substantive hearing did not raise any preliminary issue as to the concession made or invite the tribunal to make a decision on this issue and that it should have been dealt with.
16. As set out earlier Mr Diwnycz had provided a rule 24 response. It appeared to concede the grounds of challenge including ground one but had done so before he had sight of the order made by FtTJ Fisher. Also, the concession is unclear given that it refers to “to acknowledge putative errors which if found to be made out.” If concessions are to be made in a Rule 24 response they should be clearly made and any concession made should refer to the evidence and any reasoning in support of the concession so made.
17. In oral submissions Mr Diwnycz submitted that there was “an attractive element “relevant to the arguments on the concession point. He referred to the application being made orally by the PO before Judge Fisher to withdraw the concession but that there was no specific mention of this at the hearing before the FtTJ. He submitted that the FtTJ made no ruling on it and did not deal with it at the hearing because there was no reference to it. Thus, he submitted that as there was no finding on the concession and the decision was “left hanging” and that the FtTJ should have dealt with it. It was not necessary to deal with the asylum claim which was what the FtTJ had done.
18. I have therefore considered the submissions made by the parties in light of the grounds and the material provided. To determine ground one, it is necessary to have regard to the litigation history. The grounds at paragraph 7 read alongside the replacement skeleton argument dated 10/6/25 at paragraph 4 give a history of the litigation. There was a case management review hearing conducted on 8 May 2024 which listed the appeal for a substantive hearing on 9 August 2024. There is no order in the bundle of the directions made at that case management review. The respondent’s review postdated this hearing refers to there being no ASA (see p.304CB). The substantive hearing on 9 August was adjourned due to unavailability of a party and the two subsequent hearings were adjourned due to lack of judicial availability. The appeal was eventually listed for a substantive hearing on 6 June 2025. The case management order demonstrates that the parties sought to narrow the issues before the FtTJ at that hearing which was listed as the substantive hearing. It was stated that the appellants no longer pursued their protection appeals but that they relied on human rights grounds (Article 8) only. This was a very late stage seek to change the way in which the case had previously been advanced. However the appeal did not proceed as a substantive hearing and the FtTJ set out in his directions why the hearing was adjourned at paragraph 1 as follows: “ these directions are issued following the adjournment of the substantive hearing of these linked appeals on the above date and upon the tribunal hearing from (Counsel) that the appellants wish to proceed solely on article 8 grounds, and upon (PO) indicating the respondent’s agreement that this would not constitute a new matter, but that she was withdrawing the concession made in respect of the second named appellant that the family had been subject to domestic violence in Pakistan, and upon the tribunal raising the absence of a litigation friend for the third name appellant given that Dr SHK in his psychiatric report of 22 July 2024 indicated that she lacks capacity..” The FtTJ went on to give directions to identify a suitable individual to act as a litigation friend and for the appeal to be heard.
19. Whilst it had been indicated on behalf of the appellants that their protection claims were not being pursued, the factual circumstances relating to events in Pakistan which included the domestic violence from the appellants father and husband was still relied on by the appellants. The replacement skeleton argument, which was filed after the case management review and dated 10 June 2025 set out the matters relating to the assessment of “very significant obstacles to integration” and the factors at paragraph 6 which related to Article 8 of the ECHR which included that domestic violence and gender-based violence being accepted in A2’s decision and also between paragraphs 38 and 39 of the replacement skeleton argument where it was stated, “the respondent has accepted domestic violence and gender-based violence to all three appellants (JA (Nigeria) at headnote is relevant.” At paragraph 41 it is stated that the features of the claim can be viewed through the prism of very significant obstacles “even if the respondent does not accept the wider issues of harm carried out by the appellants father and family.” The reference to JA (human rights claim; serious harm) Nigeria [UKUT 0097 (IAC)N can only be a reference to the context in which the parties seek to rely on issues of serious harm in relation to article 8 issues including “very significant obstacles”. This appears to indicate that whilst the protection claim as to risk on return for the appellants from the first appellants husband and the remaining appellants father and other family relatives was not relied upon as a stand-alone issue that past history relevant to Pakistan was of some relevance. I note that the psychiatric report also referred to past events as part of the factual matrix underlying the medical diagnosis (see second report of Dr K). It was therefore a “live issue “between the parties.
20. I am also satisfied that the order of FtTJ Fisher clearly reflected the position of each of the parties as set out at paragraph 1 of his order. The appellants wished to proceed on Article 8 grounds only and thus the PO indicated that the respondent agreed that it was not a new matter and in that context the PO indicated that the respondent withdrew the concession made in respect of the second appellant that the family had been subject to domestic violence in Pakistan. The stated position of the respondent could not have been made clearer and it was set out in the directions of FtTJ Fisher.
21. Against that background I reject the submission made by Mr Badar that the withdrawal of the concession was not properly given by the PO. The PO clearly set out the respondent’s position. A careful consideration of the three decision letters demonstrates that the part relied upon from the second appellant’s decision letter was inconsistent with the main appellant’s decision letter. The decision made in respect of the first appellant ( for the avoidance of doubt the second and third appellant’s mother) dated 11 September 2023 (P306CB) expressly set out that the respondent rejected the material facts of her claim to have suffered domestic violence at the hands of her husband and set out clear credibility issues in relation to this. In respect of the third appellant, the decision letter dated 19 May 2023, (p557CB) accepted his nationality but did not accept the material facts. The relevant part of the decision letter relied upon in relation to the second appellant and as cited in the grounds, states , I am satisfied that when you live together as a family unit your father did hit you, your mother and your brother. Your account is broadly consistent and supported by your mother’s account in her AIR“.
22. Standing back and considering those decision letters, the basis upon which the concession was made does not appear to be factually correct as the respondent did not accept that the first appellant’s account (their mother’s account). Therefore, whilst it was being said that the case was being advanced on Article 8 grounds only the reference in the revised skeleton argument between paragraphs 38 – 39 did appear to seek to rely on factual circumstances as they related to Pakistan albeit in a different context. The psychiatric evidence relied upon also referred to the historic background (see report of Dr S paragraph 6.7 and 6.11) and also in the second report of Dr K pages 296 and 297CB.
23. There was in my view a clear indication that the concession was being withdrawn by the respondent’s presenting officer which was communicated well before the substantive hearing which took place four months later and therefore prior notice had been given and in accordance with headnote 3(vii) of MH the appellants legal advisors had sufficient opportunity to meet the case as it stood upon the withdrawal of the concession. I make the observation however that it would have been preferable for the directions to explicitly state that permission had been given for the concession as it was stated, for it to be withdrawn so that there was no ambiguity.
24. However, where this becomes problematic is what happened thereafter. There is no reference in the FtTJ’s decision to the earlier order made by FtTJ Fisher which recited the respective position of the parties. There is no reference whatsoever to what issues were to be determined as changed from those previously advanced. Importantly there was no reference to what factual background was being challenged or in what circumstances or how it was relevant to the issues which were in dispute. The decision reads as if the first appellant gave evidence (see paragraph 30) but given the order of Judge Fisher, the appellant was assessed as lacking capacity to give oral evidence and it does not appear that she did give evidence. It also reads as though the asylum claim was still live as the FtTJ refers to sufficiency of protection in Pakistan. Nonetheless it is not possible to ascertain what was in dispute before the FtTJ as the grounds set out at paragraph 11. There was no reference to the withdrawal of the concession either at the outset of the hearing or at any time thereafter and the FtTJ made no reference to this. The grounds set out that the unfairness which resulted was that no submissions had been made on this before the FtTJ.
25. In the circumstances I am satisfied that ground 1 is made out and accept the oral submission made by Mr Diwnycz where he conceded a material error of law.
26. As to grounds 2 and 4 I am also satisfied that those grounds are, in part, made out. Those grounds relate to the issue of the Article 8 assessment and in particular the issue of delay (see ground 2). This was not a straightforward issue to determine. It is unclear to me whether they made any claim on human rights grounds prior to the asylum claim but there was delay in seeking to make any claim between 2014 and a date in 2019. However equally the respondent did not issue decisions in respect of their claims until 2023. The issue of delay was a matter raised as relevant to the assessment of Article 8 and clearly pleaded in the revised skeleton argument between paragraphs 20 – 25. Whilst the FtTJ referred to the delay of the first appellant in making her claim between paragraphs 35 – 36, no assessment was made for the issue of delay as it related to the unexplained position of the respondent. It is therefore not known what weight or what assessment was made of that factor in the overall assessment of proportionality and strength of the private life claim in respect of each of the three appellants. In the circumstances, there was an error of law which was material to the Article 8 assessment as the grounds set out.
27. Whilst the grounds also refer to the third appellant and his ability to meet PL 4.1 of Appendix private life (see grounds between paragraphs 28 – 31) it had been expressly conceded in the revised skeleton argument at paragraph 30 that the third appellant could not meet the Rules at the date of the application and that he “narrowly missed out” on qualifying. Whether the failure to consider that was a material error of law in light of the decision of the decision of Stanley Burton LJ in Miah & Ors v Secretary of State for the Home Department [2012] EWCA Civ 261 at paragraphs 25-26, and that the requirements of immigration control is not weakened by the degree of non-compliance with the rules, it was a relevant factor for the FtTJ to take account of when assessing the strength of an article 8 claim. There is no reference to that issue by the FtTJ in the assessment of the third appellant’s private life and as relevant to proportionality or any reasoning as to why, if the appellants argument on a “ near miss” was to be rejected why that was so.
28. In so far as grounds 4 seeks to challenge the article 8 assessment on the basis that the FtTJ was in error by stating that article 8 was not engaged, the paragraph identified in the grounds on that issue relates to paragraph 43. On a careful reading of that paragraph the decision related to the issue of family life with other relatives residing in the UK. As the FtTJ set out whilst it was acknowledged that the appellant had relatives residing in the UK, there was no evidence from those relatives either in the form of witness statements or otherwise as to their relationships with the appellant. The grounds failed to identify evidence in this regard. The FtTJ did consider, albeit in the alternative at paragraph 46 that in respect of each appellant that they had established a private life in the United Kingdom (see paragraphs 46 onwards). As set out earlier, this assessment did not consider the effect of delay in the Article 8 claim and therefore did not take account of material factors.
29. It is also established that the FtTJ fell into legal error where the FtTJ referred to “insurmountable obstacles” when assessing the claim. This was not the issue raised on behalf of the appellants and the FtTJ did not apply the correct test of whether there were very significant obstacle to integration (see paragraph 41). I accept the submission that they are different tests and it was incumbent on the FtTJ to address and assess the correct test by reference to the factual evidence.
30. Dealing with ground 3, Mr Badar relies on the grounds and submits that there were 2 psychiatric reports before the FtTJ but that the FtTJ only referred to one report in her assessment of the evidence thereby failing to take account of material evidence.
31. Mr Diwnycz in his oral submissions outlined the position on behalf the respondent and that whilst the second report may not have complied with the requirements necessary for an expert report, the doctor set out a summary of his relevant qualifications and background and therefore it could not be said that the author of the report was not suitably qualified and thus was able to give an opinion. That being the case the FtTJ’s failure to have regard to the report was an error of law because the FtTJ failed to reach any conclusion on that evidence and it was not known what weight if any was attached to that report. Mr Diwnycz’s submissions supported the grounds and the oral submissions made by Mr Badar.
32. There is no dispute that there were two medical reports before the FtTJ - one from Dr S dated 21 July 2024 (p274CB) and one from Dr K dated 22 July 2024 (p293CB). If it is also not in dispute that the FtTJ only undertook an assessment of the first report set out between paragraphs 37 – 40 of her decision. There is no reference at all to the second report. The FtTJ attached no weight to the first report for the reasons set out between paragraphs 37 – 43. The challenge made in the grounds is on the basis that the omission of any reference to the second report infects the FtTJ’s assessment of the first report.
33. What is wholly unusual is that there were two reports made by two different psychiatrists after assessing the appellant on the same day namely 19 July 2024. It is not said which psychiatrist saw the first appellant first. Dr S recorded that the appellant was interviewed by Skype on 19 July 2024 (p276CB) and the second report of Dr K recorded that he saw the appellant at the local clinic on 19 July 2024. Mr Badar was not able to confirm the basis upon which the second report was commissioned and there is no letter of instruction available in respect of that report. The first appellant was therefore assessed by different psychiatrists on the same day with one psychiatrist forming the opinion that the appellant was unresponsive and mute and was unable to take a decision for herself and therefore lacked capacity, when the other psychiatrist formed a different view. It is not possible for me to reach a view on this issue. What seems to be clear is that the FtTJ made no reference to the second report and the decision is entirely silent as to what was made of this report. The paragraphs in the decision refer to the evidence refer to the report in the singular and refers to the contents of the first report ( see reference at paragraph 39 which refers to the report being a skype report). If the second report was considered to deal with the issue of capacity only, that should have been addressed in the decision by the FtTJ. Mr Badar and Mr Diwnycz agreed in their respective submissions that the second report did in some respects support the diagnosis made in the second report. Therefore, in the light of the submissions maintained by both advocates , that the FtTJ did not make any assessment of the second report relied upon, or provide any reasoning in relation to that report, either concerning its contents or the weight attached to it, and thus as relevant to the weight attached to the first report, ground three is made out.
34. In summary whilst Mr Badar relied upon a number of points which related to each of the four grounds, having heard those submissions and considered them in the light of the material and the decision of the FtTJ, I am not satisfied that all the points relied upon have been established. However, whilst not all of the points raised in the grounds are established, there are sufficient grounds identified above and in the light of the concessions on material errors of law made on behalf of the respondent they are of sufficient materiality to set aside the decision.
35. Both parties have invited the Upper Tribunal to set aside the decision and in view of the fact finding that is necessary on all parts of the claim they submit that the appeals should properly be heard afresh. Both submit that the appeals should be remitted to the First-tier Tribunal.
36. I have given careful consideration to the Joint Practice Statement of the First-tier Tribunal and Upper Tribunal concerning the disposal of appeals in this Tribunal. I have considered the issues in the light of the practice statement recited and the recent decision of the Court of Appeal in AEB v SSHD [2022] EWCA Civ 1512 and the decision in Begum [2023] UKUT 46 (IAC). As to the remaking of the decision, I am satisfied that in light of the errors of law identified and the fact findings which will be necessary, the appeals fall within paragraphs 7.2 (b) of the practice statement. I therefore remit the appeals to the First-tier Tribunal for that hearing to take place.
37. Accordingly, I am satisfied that it would in all circumstances be appropriate to set aside the decision in its entirety and for it to be remitted to the First-tier Tribunal to be heard afresh with no findings of fact preserved.
38. Whilst the directions are for the FtT to consider, I invite the parties to liaise promptly to deal with the matters set out below as this might enable there to be a more efficient listing and hearing at the First-tier Tribunal. Counsel’s availability should be provided and any witnesses who will be giving evidence and agreed draft directions including the issues in dispute and filing and service of any updated evidence (if so relied upon). The issue of capacity will also need to be addressed.
Decision
39. The decision of the First.-tier Tribunal involved the making of an error on a point of law; the decision is set aside and shall be remitted to the First-tier Tribunal to be heard afresh with no findings of fact preserved.

Upper Tribunal Judge Reeds
Upper Tribunal Judge Reeds

24 August 2026