Tribunal decisions

The decision

IN THE UPPER TRIBUNAL
IMMIGRATION AND ASYLUM CHAMBER Case No: UI-2026-002899
First-tier Tribunal No: EU/54623/2024

THE IMMIGRATION ACTS

Decision & Reasons Issued:
On 10 September 2026

Before

UPPER TRIBUNAL JUDGE KHAN
UPPER TRIBUNAL JUDGE NEVILLE

Between

MUHAMMAD TALHA
Appellant before the FtT
and

SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent before the FtT

Representation:
For the Appellant: No appearance
For the Respondent: Mr Deller, Senior Home Office Presenting Officer

Heard at Field House on 28 August 2026

DRAFT DECISION AND REASONS

Introduction

1. This is an appeal with permission brought by the Secretary of State for the Home Department (‘SSHD’) against the decision of First-tier Tribunal Judge Young-Harry (‘the judge’) dated 31 March 2026. That decision allowed the appellant’s appeal against the respondent’s refusal to grant the appellant a family permit under Appendix EU of the Immigration Rules.

2. At the conclusion of the hearing, we determined that the First-tier Tribunal decision involved the making of an error of law and would be set aside. We reserved our reasons which we provide now.

3. For the sake of clarity, the parties are referred to in this decision as they were before the First-tier Tribunal.

4. The appellant is a national of Pakistan. He is also a litigant in person in these proceedings. On 16 April 2024, the appellant made an application for an EU Settlement Scheme (EUSS) Family Permit under Appendix EU (family permit) to the Immigration Rules. The appellant made the application on the basis that he was the dependent stepson of a ‘relevant EEA citizen’ namely, the sponsor, Mr Shakeel Mohammad Hussain who the applicant says is married to his mother.

5. The respondent refused the application on 10 June 2024 (‘the decision’) due to the appellant’s failure to provide any evidence to support his claimed relationship. The appellant appealed the respondent’s decision to the First-tier Tribunal. By a decision made on the papers and dated 31 March 2026, the judge allowed the appeal finding that the appellant’s birth certificate was reliable and the relationship to the EEA sponsor had been established.

6. Permission to appeal was granted by First-tier Tribunal Judge Dainty on 8 June 2026.

7. The matter now comes before us to determine whether the judge erred in law, and, if so, whether any such error was material and whether the decision of the First-tier Tribunal should be set aside.

Preliminary Issue – the Appellant’s absence.

8. The appellant and his sponsor failed to attend the hearing. On 13 August 2026, the Upper Tribunal (‘the Tribunal’) had written to the appellant in Pakistan notifying him of the hearing date and that the Tribunal may proceed in his absence. The Tribunal letter was served by email to the appellant’s address on record. On the same date, the Tribunal also wrote to the sponsor in similar terms to his UK address on record. The letter was served by post via Royal Mail. No response was received from either the appellant or the sponsor regarding their attendance at the hearing.

9. On the morning of the hearing, as neither the sponsor nor the appellant were in attendance at Field House and no contact had been made with the Tribunal, the clerk emailed both of them asking whether they would be attending the hearing. Neither replied. The postal and email addresses for service were checked and confirmed as correct based on the details held by the Tribunal.

10. We considered how to proceed with Mr Deller. He confirmed that no messages had been received from the appellant or the sponsor. We determined that notification of the hearing date had been properly effected pursuant to rule 13 of The Tribunal Procedure (Upper Tribunal) Rules 2008 and, taking into account the overriding objective, the hearing should proceed in the absence of the appellant and the sponsor.

11. After the hearing, it was brought to our attention that the Tribunal’s letter notifying the sponsor of the hearing date had been returned by the Royal Mail on 28 August 2028. For the reasons we explain later we do not consider the return of the sponsor’s letter impacts on our earlier decision to hear the appeal in the appellant’s absence.

The Appeal Grounds

12. The SSHD submits two grounds of appeal against the judge:

(i) making a material misdirection by failing to take into account and/or resolve conflicts of facts or opinion on material matters;

(ii) committing or permitting a procedural or other irregularity capable of making a material difference to the outcome or the fairness of the proceedings.

Findings and Reasons

13. We have considered the First-tier Tribunal decision, the documentation that was before the First-tier Tribunal, the grounds of appeal, and the submissions made at the hearing, before coming to a decision in this appeal. It is not necessary to summarise the oral submissions because they are a matter of record, but we will refer to any relevant arguments in the decision.

14. We bear in mind that judicial caution and restraint is required when considering whether to set aside a decision of a specialist tribunal. In particular, judges of a specialist tribunal are best placed to make factual findings: see HA (Iraq) v SSHD [2022] UKSC 22. Appellate courts should not rush to find misdirections simply because they might have reached a different conclusion on the facts or expressed themselves differently: see AH (Sudan) v SSHD [2007] UKHL 49 and KM v SSHD [2021] EWCA Civ 693. Where a relevant point is not expressly mentioned by the tribunal, the court should be slow to infer that it has not been taken into account: see MA (Somalia) v SSHD [2020] UKSC 49. When it comes to the reasons given by the tribunal, the court should exercise judicial restraint and should not assume that the tribunal misdirected itself just because not every step in its reasoning is fully set out: see R (Jones) v FTT (SEC) [2013] UKSC 19.

15. Turning to address the first ground of appeal, the respondent’s position is that the judge manifestly failed to have regard to the documentary evidence submitted within the stitched bundle because had he done so, he would have identified that the appellant had provided two contradictory birth certificates and two contradictory marriage certificates which do not establish that the sponsor is married to the appellant’s mother, nor establish that the appellant is the son of Kousar Khatoon as he claims.

16. We have carefully reviewed the documents submitted in the hearing bundle. We note that although the birth certificates are identical in several respects, such as the tracking ID, the CRMS and CNIC numbers, the names of the appellant’s father and grandfather and his date of birth, they also name different people as the appellant’s mother. One birth certificate names Kousar Khatoon and the other birth certificate names Saleem Kousar.

17. Likewise, the marriage certificates also demonstrate contradictory information. One marriage certificate shows the bride as Kousar Khatoon with a date of birth of 05.02.1985. The other marriage certificate shows the bride’s named as Saleem Kousar with a date of birth of 11.02.1980.

18. We have also identified further contradictory information. In the appellant’s Visa Application Form (‘VAF’) the appellant states that his mother is Kousar Khatoon and her date of birth is 05.01.1983. This date contradicts the marriage certificate date of birth of 05.02.1985.

19. In the appellant’s witness statement dated 02.09.2025, he states that his mother is Saleem Kousar and that she married his stepfather, Mr Shakeel Hussain on 29.12.2019. The appellant’s statement contradicts his VAF regarding who is his mother. The marriage certificates both show that the appellant’ stepfather married Kousar Khatoon and Saleem Kousar on the same date of 29.12.2019.

20. Finally, the sponsor’s statement (undated) is also contradictory. He states that he married the appellant’s mother, Saleem Kousar in 2020, and from that marriage the appellant became his stepson.

21. At [4] the judge refers to the stitched bundle and states that he has carefully considered all the documents. At [6]-[10] the judge sets out the briefest of findings. He refers to only one birth certificate and states ‘I am satisfied the document names the appellant’s mother and is consistent with the sponsor’s marriage certificate.’

22. It is clear to us that the judge manifestly failed to identify the contradictory documentation that was before him and as a result was oblivious to the obvious conflicts of fact regarding the identity of the appellant’s mother and her relationship to the sponsor, and, in turn, the appellant’s relationship to the sponsor. The failure to take into account material matters and to resolve the obvious conflicts of fact amounts to a clear error of law.

23. This brings us to ground two which concerns whether the judge committed or permitted a procedural or other irregularity capable of making a material difference to the outcome of the fairness of the proceedings by considering whether an oral hearing would have been a more appropriate forum for the appeal, which would have enabled the sponsor to address the contradictory evidence.

24. In considering ground two, we take account of the guidance provided in the decision in Ghira (R 25 -AIP -Fairness) [2025] UKUT 00350 (IAC) and SSGA (Disposal without considering merits: R 25) Iraq [2023] UKUT 00012 IAC. These cases, in essence, require the First-tier Tribunal to consider whether an appeal can be fairly and justly disposed of without a fair hearing, in accordance with the overriding objective and common law fairness, especially when credibility is disputed on any material issue or fact.

25. In the instant case, the appellant requested that the First-tier Tribunal consider the appeal without a hearing which was agreed to by the judge. However, the judge was nonetheless under an independent obligation to properly consider the documentation, which had he done so, would have revealed various contradictions which on any proper view could only have been fairly resolved by converting the appeal to an oral hearing to enable the sponsor to address the contradictory evidence. This approach would unarguably have been the most appropriate and fairest way to resolve the conflicts of fact in the appellant’s submitted documentation.

26. The original error in failing to properly take into account material matters was unarguably compounded by the judge permitting a procedural or other irregularity capable of making a material difference to the outcome or the fairness of the proceedings.

27. It follows that the decision of First-tier Tribunal Judge Young-Harry involved the making of a material error of law and must be set aside. Mr Deller agreed that in view of our finding of a material error of law that the case should be remitted to the First-tier Tribunal for a full rehearing. That is our view also. Given the critical nature of the procedural unfairness involved in the case no part of the determination can be preserved. Recalling the sponsor’s returned Notice of Hearing, we do not consider that this decision in any way prejudices the appellant or the sponsor as a result of proceeding in their absence.

Notice of decision
The decision of First-tier Tribunal Judge Young-Harry of 31 March 2026 did involve the making of an error of law and is set aside. The matter is remitted to the First-tier Tribunal for rehearing before a differently constituted tribunal with no findings of fact preserved.

K. A. Khan
Judge of the Upper Tribunal
Immigration and Asylum Chamber

09 September 2026