Tribunal decisions

The decision

IN THE UPPER TRIBUNAL
IMMIGRATION AND ASYLUM CHAMBER Case No: UI-2026-003362
First-tier Tribunal No: HU/53747/2024
LH/01122/2025

THE IMMIGRATION ACTS

Decision & Reasons Issued:
On 9th of October 2026

Before

DEPUTY UPPER TRIBUNAL JUDGE LAY

Between

AK Afghanistan
(Anonymity Order made)
Appellant
v

SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: Mr M Osmani, Times PBS
For the Respondent: Ms A Everett, Senior Home Office Presenting Officer

Heard at Field House on 2 October 2026

Order Regarding Anonymity

Pursuant to rule 14 of the Tribunal Procedure (Upper Tribunal) Rules 2008, the anonymity of the Appellant is maintained.

No one shall publish or reveal any information, including the name or address of the appellant, likely to lead members of the public to identify the appellant. Failure to comply with this order could amount to a contempt of court.

DECISION AND REASONS
1. The Appellant is a 34-year-old national of Afghanistan who applied for entry clearance on 6 September 2023 to join his mother (and other family members) in the UK. The Respondent refused the application on 1 March 2024 and he exercised his right of appeal. That appeal was dismissed by FTJ Balroop in a determination dated 19 November 2025 following a hearing on 17 November 2025, at which the Appellant’s mother and brother gave evidence.
2. The Appellant sought permission to appeal. Permission was refused by FTJ Dixon on 20 May 2006. Following a renewed application, permission was granted on all pleaded grounds by UTJ Loughran.
3. In accordance with Directions, there was a Composite Bundle (872 pages) served ahead of the error of law hearing – page references in this determination are in the form [CB: XX], denoting [Composite Bundle: PDF page finder]. There was a Rule 24 reply dated 10 August 2026 and a Rule 25, in turn, dated 22 September 2026.
Conclusions
4. The grant of permission focused on whether or not FTJ Balroop had applied the correct test when considering whether Article 8(1) could be said to be engaged. Certainly, this is a live issue in many other cases, ever since promulgation of IA & Ors v Secretary of State for the Home Department [2025] EWCA Civ 1516 (26 November 2025) which clarified the need for “additional elements of dependency” between individuals in order to establish “family life” under Article 8(1) ECHR in an entry clearance case. However, in this instance, a FTT case which was heard and promulgated just before IA, FTJ Balroop – whether proleptically or accidentally or by close consideration of the old dicta in Kugathas – did happen to apply a test consistent with IA. He looked to whether there was family life by reference not only to “real and effective support” (which is now understood to be insufficient on its own) but also to elements of “dependence” (which he, on the evidence he considered, found to be lacking).
5. Mr Osmani agreed that the core issue was whether the FTJ had rationally applied himself to the actual evidence of elements of dependency; in particular, the exceptional needs of the Appellant as an adult with severe autism whose parents were said to need to continue to play a key role in his care and life more generally. These arguments crystallised within the pleaded Ground 2, albeit that ground also, in a quite diffuse way, also sought to problematise other aspects of the evaluation of engagement of Article 8(1). But this issue also dovetailed with Ground 5 which criticised the failure to consider the medical evidence in concert with all other evidence in the round.
6. My focus in this error of law determination therefore is on the FTJ’s approach to the medical evidence and then, in turn, the application of that evidence to the threshold test of engagement. I am concerned, in particular, that there was no rational assessment of central strands of the medical evidence provided by Dr Durrani [CB: 143-145] nor adequate reasoning for rejecting that evidence (if it was indeed rejected in so far as it pertained to the parental role). There is no doubt that the FTJ was aware of Dr Durrani’s evidence since he states, at paragraph 36 that “further, the medical evidence does not corroborate the Sponsor’s assertions. While there is reference to autism in the letter dated 30 August 2024 from Dr Durrani, the evidence does not describe the care needs or requirements of the Appellant”.
7. As the Respondent argued in the Rule 24: “the medical evidence [ …] does not support the assertion of the high level of care that the appellant requires”.
8. But, when turning to the evidence of Dr Durrani, the letter provides a detailed appraisal of the Appellant’s social functioning, “meltdowns and echolalia” and “heightened sensitivity to sensory stimuli”. Then, in a section under “family support”, it recommends that there be development of “strategies for handling behavioural challenges at home” and that it is “critically required” that these mitigating mechanisms be channelled via a “family member who the patient is comfortable with (parents)”.
9. The letter continues [CB: 145] in an addendum (both sides agreed it was part of the FTT bundle) which stressed the degree of intensive support the Appellant requires and the role of family members. By any reasonable measure, Dr Durrani was describing a man with profound and “diverse” needs: cognitive, behavioural, mental and physical (“heightened sensitivity to sensory stimuli”). And, further, he was emphasising the particular role of the parents in calming, assuaging and managing their vulnerable son; and charting a decline in the Appellant’s condition over time, consistent with the family’s written evidence that the Appellant had struggled badly since the loss of his mother.
10. This last element mattered, in my view, not least because a key (and unusual) feature of the Appellant’s case was that his father, who was long ago granted entry clearance to the UK to be with his wife and other British family, in fact has returned to Afghanistan rather than reside in the UK. This was detailed in the Appellant’s father’s witness statement [CB: 22]. He says that, rather than live in the UK with his refugee wife on a route to settlement, he has been compelled to return to Afghanistan because his son (the Appellant) needs him. The FTJ, at paragraph 39, finds that “I am not satisfied that the evidence shows that the Appellant’s father has to remain in Afghanistan with the Appellant” and elsewhere takes issue with a short period (one month) when the Appellant’s father was initially in the UK and the Appellant was therefore in receipt of care by a neighbour.
11. No doubt there could be other reasons for an Afghan national not to seek to take advantage of a precious grant of entry clearance to reside permanently in the UK (albeit it is hard to conjure what those reasons might be) but the FTJ had written and oral evidence from the family of the father’s actual reasons for returning so soon after achieving entry and, significantly, medical evidence of the importance of (specifically) parental care for the Appellant in Afghanistan. This was at least logically capable of being corroborative but there is no indication in the determination that the FTJ has opened his mind to that possibility nor is any reasoning given for rejecting that element of the evidence of Dr Durrani and, indeed, the written evidence of the father in a signed statement. Instead, at paragraph 35, the FTJ takes the fact that the father left Afghanistan at all as undermining of the family’s contention that his son was in need (the converse being that the father has, on his own account, been unable to return to the UK due to his son’s claimed needs). Also, the FTJ nowhere considered the evidence (in the family witness statements, consistent with Dr Durrani) that the Appellant had declined since his mother left [CB: 83], which was relevant to considering the credibility of the father’s account of having felt able to depart Afghanistan initially before returning.
12. There was no deprecation by the FTJ of Dr Durrani’s bona fides nor his supervisory role in the Appellant’s care. Rather, the FTJ (at paragraph 36) deemed it a significant lacuna in the letter/medical evidence that there was no description of the daily care needs (“eating, dressing, washing, toileting and maintaining personal hygiene”) with which the Appellant was said to require assistance. In other words, he focused on what was not in the letter rather than what was in the letter. Of course, it is for an Appellant to satisfy a Judge (in this instance, on balance of probabilities) of their factual case but an FTJ is still obliged to show by his reasoning that critical evidence and arguments have been considered and, if rejected, have been laid aside rationally. In any event, in the evaluation of dependency for the purposes of the engagement of Article 8(1), “daily care needs” of the kind considered at paragraph 36 are not a sine qua non. This was not an Adult Dependent Relative application under the rules. The FTJ needed to consider dependency (physical, emotional, in all its facets) and then evaluate whether the relationship between the Appellant and his mother therefore went beyond “normal emotional ties”.
13. I accept Ms Everett’s submission that there were other reasons expressed by the FTJ for being unsatisfied by parts of the evidence: the issue of the mother’s oral evidence, the dispute over degree of education, the possibility of “staged” photos etc. Having regard to Volpi & Anor v Volpi [2022] EWCA Civ 464 [at 2], a Court or Tribunal considering error of law should be circumspect in interfering with primary fact-finding conducted below:
i) An appeal court should not interfere with the trial judge's conclusions on primary facts unless it is satisfied that he was plainly wrong.
ii) The adverb "plainly" does not refer to the degree of confidence felt by the appeal court that it would not have reached the same conclusion as the trial judge. It does not matter, with whatever degree of certainty, that the appeal court considers that it would have reached a different conclusion. What matters is whether the decision under appeal is one that no reasonable judge could have reached.
iii) An appeal court is bound, unless there is compelling reason to the contrary, to assume that the trial judge has taken the whole of the evidence into his consideration. The mere fact that a judge does not mention a specific piece of evidence does not mean that he overlooked it.
iv) The validity of the findings of fact made by a trial judge is not aptly tested by considering whether the judgment presents a balanced account of the evidence. The trial judge must of course consider all the material evidence (although it need not all be discussed in his judgment). The weight which he gives to it is however pre-eminently a matter for him.
v) An appeal court can therefore set aside a judgment on the basis that the judge failed to give the evidence a balanced consideration only if the judge's conclusion was rationally insupportable.
vi) Reasons for judgment 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.
14. I also bear in mind that a “reasons” challenge has to surmount a relatively high bar. It is worth noting the Senior President’s Practice Direction, “Reasons for decisions”, dated 4 June 2024, which reminds the IAC that “adequate reasons for a substantive decision may often be short. In some cases a few succinct paragraphs will suffice… a challenge based on the adequacy of reasons should only succeed when the appellate body cannot understand the Tribunal’s thought process in making material findings.”
15. Having read the determination carefully, and exercising appropriate restraint, I concluded that the determination did not adequately deal with the elements of the medical evidence pertaining to the intensity of the Appellant’s symptomatology and the supportive role of his parents, which in turn taints the approach taken to the elements of dependency overall (engagement of the protected right) and the proportionality assessment (which appears to have been undertaken de bene esse and proceeded on the basis of findings of fact which I have found to be flawed). This was at least capable of leading to a different outcome on the issue of both engagement and then proportionality.
16. In light of my conclusions, I do not consider it necessary to give full reasons on the other grounds.
Disposal
17. I invited, on a provisional basis, submissions from the representatives on whether the appeal should be retained in the Upper Tribunal or remitted to the First-tier Tribunal, and what, if anything, should be preserved from the determination.
18. Mr Osmani’s position was that, in the event of error, the appeal should be remitted de novo to the FTT. Ms Everett was, on balance, neutral on venue.
19. I have had regard to Section 7 of the “Senior President’s Practice Statements of the Immigration and Asylum Chambers of the First-tier Tribunal and the Upper Tribunal” (SPT Ryder, 11 June 2018), Begum (Remaking or remittal) Bangladesh [2023] UKUT 46 (IAC), AEB v Secretary of State for the Home Department [2022] EWCA Civ 1512 and Majera v Secretary of State for the Home Department [2025] EWCA Civ 1597.
20. I did consider retaining the appeal in the UT but it is appropriate in the circumstances of this appeal that it be remitted.

Notice of Decision
I have found a material error of law; the appeal is remitted to the First-tier Tribunal (IAC) for reconsideration de novo.

Taimour Lay

Deputy Judge of the Upper Tribunal
Immigration and Asylum Chamber

7 October 2026