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United Kingdom Immigration and Asylum (AIT/IAC) Unreported Judgments


You are here: BAILII >> Databases >> United Kingdom Immigration and Asylum (AIT/IAC) Unreported Judgments >> UI2024002464 & Ors [2025] UKAITUR UI2024002464 (8 May 2025)
URL: http://www.bailii.org/uk/cases/UKAITUR/2025/UI2024002464.html
Cite as: [2025] UKAITUR UI2024002464

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IN THE UPPER TRIBUNAL

IMMIGRATION AND ASYLUM CHAMBER

Case Nos: UI- 2024-002464

UI- 2024-002465 UI-2024-002466

UI-2024-002467 UI-2024-002468

 

First-tier Tribunal Nos:

HU /56317/2023 LH/00029/2024

HU/56313/2023 LH/00031/2024

HU/56318/2023 LH/00050/2024

HU/56312/2023 LH/00030/2024

HU/56311/2023 LH/00032/2024

 

THE IMMIGRATION ACTS

Decision & Reasons Issued:

On 8 th of May 2025

 

Before

 

UPPER TRIBUNAL JUDGE SHERIDAN

 

Between

 

Ramdhan Kazibwe (First Appellant)

Rahia Kazibwe (Second Appellant)

Raudha Kazibwe (Third Appellant)

Raheed Kazibwe (Fourth Appellant)

Abdurahman Kazibwe (Fifth Appellant)

(NO ANONYMITY ORDER MADE)

Appellants

and

 

The Secretary of State for the Home Department

Respondent

Representation :

For the Appellants: Mr M West, Counsel instructed by Titan Solicitors

For the Respondent: Mr K Ojo, Senior Home Office Presenting Officer

 

Heard at Field House on 24 April 2025

 

DECISION AND REASONS

Introduction

1.               The appellants are citizens of Uganda. Their mother ("the sponsor") lives in the UK with limited leave to remain. On 20 January 2023 the appellants applied for entry clearance to join the sponsor in the UK. At the time the application was made all five appellants were under 18. Two of the appellants are now over 18.

2.               On 13 April 2023 the respondent refused the application. The appellants appealed to the First-tier Tribunal where their appeal came before Judge of the First-tier Tribunal Farmer. In a decision dated 3 February 2024 Judge Farmer dismissed the appeal. The appellants appealed against Judge Farmer's decision to the Upper Tribunal. In a decision dated 6 March 2025 (a copy of which is appended to this decision) I set aside the decision of Judge Farmer. I now re-make Judge Farmer's decision.

3.               The appeal is brought under section 82 of the Nationality, Immigration and Asylum Act 2002 (refusal of a human rights claim) on the ground that the decision to refuse the appellants' entry to join the sponsor is unlawful under section 6 of the Human Rights Act 1998 because it is contrary to Article 8 ECHR.

Relevant Law

4.               This case turns on paragraph E-ECC.1.6 of Appendix FM. Paragraph E-ECC.1.6 sets out, inter alia, relationship requirements where applications are made by a child (at the date of application) for entry clearance to join a parent who is in the UK with limited leave to remain. It states:

E-ECC.1.6. One of the applicant's parents must be in the UK with limited leave to enter or remain, or be being granted, or have been granted, entry clearance, as a partner or a parent under this Appendix (referred to in this section as the "applicant's parent"), and

(a) the applicant's parent's partner under Appendix FM is also a parent of the applicant; or

(b) the applicant's parent has had and continues to have sole responsibility for the child's upbringing; or

(c) there are serious and compelling family or other considerations which make exclusion of the child undesirable and suitable arrangements have been made for the child's care .

Issues in Dispute

5.               The parties were in agreement that there were three issues in dispute:

(a)            first, whether the sponsor has had and continues to have sole responsibility for the upbringing of the appellants such that the condition in paragraph E-ECC1.6(b) of Appendix FM is satisfied;

(b)           second, whether there are there are serious and compelling family or other considerations which make exclusion of the appellants undesirable and suitable arrangements have been made for their care such that the condition in paragraph E-ECC1.6(c) of Appendix FM is satisfied; and

(c)            third, whether refusing entry to the appellants would breach Article 8 ECHR because it would represent a disproportionate interference with their family life with the sponsor (and the sponsor's family in the UK).

 

6.               It was not in dispute that the appellants' appeal falls to be allowed if either the condition in E-ECC1.6(b) or E-ECC1.6(c) is satisfied. This is because it is accepted by the respondent that all of the other conditions required by Section EC-C "Entry Clearance as a child" of Appendix FM are met and, therefore, if either of these conditions are met, the Rules are satisfied. It was also not disputed that the Article 8 ECHR proportionality balance would fall in the appellants' favour if the Rules are satisfied: see para. 34 of TZ (Pakistan) and PG (India) v SSHD [2018] EWCA Civ 1109 ("where a person satisfies the Rules, whether or not by reference to an article 8 informed requirement, then this will be positively determinative of that person's article 8 appeal, provided their case engages article 8(1), for the very reason that it would then be disproportionate for that person to be removed".)

Preserved Findings

7.               In my decision of 6 March 2025, I stated that the following is preserved from the First-tier Tribunal decision:

(a)            the adverse credibility findings in respect of the sponsor's evidence;

(b)           the finding on sole responsibility, which is that the sponsor did not have sole responsibility because the appellants' father also exercised responsibility; and

(c)            the finding that there is suitable accommodation for the appellants.

Death of the Appellant's Father

8.               The appellants claim that there has been a highly significant change in circumstances since Judge Farmer's decision - the death of their father.

9.               The appellants submitted a death certificate for their father which records his date of death as 2 September 2024. At the hearing, the sponsor showed the Upper Tribunal (with no objection from Mr Ojo) photographs on her phone which she claims were taken at the funeral of the appellant's father.

10.           At the beginning of the hearing I asked the parties whether they considered the father's death to be "a new matter" under Section 85 of the Nationality, Immigration and Asylum Act 2002 such that the respondent would need to consent to it being considered. Both Mr West and Mr Ojo expressed the view that the death was not a new matter requiring the respondent's consent; and in any event Mr Ojo expressed no objection to it being considered. I asked Mr Ojo whether he needed time to investigate the authenticity of the death certificate. His response was that he intended to cross-examine the sponsor about the claimed death of the appellants' father, but did not need an adjournment in order to have time to make further enquiries. In the light of the position adopted by both Mr Ojo and Mr West, I decided to proceed and to consider the death certificate (and claim about the father's death), as part of the proceedings.

Evidence

11.           The sponsor relied on her witness statement of 20 October 2023.

12.           During the course of the hearing she mentioned that she had attended the funeral of the appellants' father and had provided photographs to her solicitors. Unfortunately, these had not been put into evidence. She retrieved the photographs on her phone and these were shown to both me and Mr Ojo.

13.           The sponsor's oral evidence was that she obtained the death certificate (having been advised by her solicitors in the UK of its significance) from a sister of the appellants' father. She claims to have attended the funeral because she happened to be in Uganda at the time visiting her children and a sister of the appellants' father telephoned her to inform her of the death.

Submissions

14.           Mr Ojo's only submission was that he relied on the reasons for refusal letter. He stated he had nothing further to add.

15.           Mr West made a range of arguments. Amongst other things, he submitted that (i) the evidence demonstrates that the appellant's father is now deceased; and (ii) this is highly significant because if he is deceased it follows that he can no longer be sharing responsibility with the sponsor for the upbringing of the appellants.

Analysis

16.           Mr Ojo did not argue that the death certificate of the appellants' father was not genuine or that the photographs on the sponsor's phone were not of his funeral. This documentary evidence is, in my view, amply sufficient to establish that the appellants' father died on 2 September 2024.

17.           Judge Farmer rejected the sponsor's claim to have sole responsibility for the appellants because he was not satisfied that the appellants' father did not also exercise responsibility; and it was the involvement of the father in the appellants' lives which led Judge Farmer to conclude that the sponsor had not established sole responsibility.

 

18.           The situation is now starkly different because the appellants' father is deceased. In circumstances where the sponsor is the only living parent, and where the children live with a non-family member in Uganda, I am satisfied that it is more likely than not that the sponsor currently has - and has had since at least 2 September 2024, when the father died - sole responsibility for the appellants.

 

19.           To meet the condition in paragraph E-ECC.1.6(b) the sponsor must establish not only that she currently has sole responsibility for the appellants, but that she " has had" sole responsibility. The Immigration Rules do not specify the length of time that must have elapsed for the "has had" condition to be met. However, it is clear from contrasting E-CC1.6 to E-ECC1.2 that it is not necessary for the sponsor to have had sole responsibility when the application was made. This is because E-ECC.1.2 states that " The applicant must be under the age of 18 at the date of application". In contrast, E-ECC1.6 says nothing about the date of application. Give that ECC.1.2 specifically refers to the date of application, if ECC1.6 was intended to be limited in the same way it would have said so.

 

20.           I am not aware of any case law addressing how long a parent must have had sole responsibility for the "has had" condition in paragraph E-ECC.1.6(b) to be met. However, this issue was considered in respect of a similar provision that applies to a parent settled in the UK: paragraph 297(i)(e) of the Immigration Rules. In TD (paragraph 297(i)(e): sole responsibility) [2009] UKAIT 49 it is stated (in paragraph 52(ii)) that sole responsibility " may have been for a short duration in that the present arrangements may have begun quite recently". I see no reason why the phrase "has had" should be given a different meaning in paragraph E-ECC.1.6(b).

 

21.           The sponsor "has had" sole responsibility for the appellants since at least September 2024, which is a period of over six months. In the light of what is said in paragraph 52(ii) of TD, I am satisfied that this is an adequate amount of time to meet the "has had" condition. As the sponsor "has had" and "continues to have" sole responsibility for the appellants, the condition of paragraph E-ECC.1.6(b) is met and therefore the requirements of the Immigration Rules are satisfied. That being the case, it is not necessary to consider paragraph E-ECC.1.6(c) and, for the reasons explained in TZ (see para. 6 above), refusing entry to the appellants would constitute a disproportionate interference with their (and the sponsor's) family life and breach Article 8 ECHR. The appeal is therefore allowed.

Notice of Decision

22.           The decision of the First-tier Tribunal was set aside in a decision issued on 6 March 2025. I now re-make the decision of the First-tier Tribunal and allow the appeal.

 

D. Sheridan

 

Judge of the Upper Tribunal

Immigration and Asylum Chamber

 

 

6 May 2025

 


Error of Law Decision

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IN THE UPPER TRIBUNAL

IMMIGRATION AND ASYLUM CHAMBER

Case Nos: UI- 2024-002464

UI- 2024-002465 UI-2024-002466

UI-2024-002467 UI-2024-002468

 

First-tier Tribunal Nos: HU /56317/2023 LH/00029/2024

HU/56313/2023 LH/00031/2024

HU/56318/2023 LH/00050/2024

HU/56312/2023 LH/00030/2024

HU/56311/2023 LH/00032/2024

 

THE IMMIGRATION ACTS

Decision & Reasons Issued:

 

.......................................

Before

 

UPPER TRIBUNAL JUDGE SHERIDAN

 

Between

 

Ramdhan Kazibwe (First Appellant)

Rahia Kazibwe (Second Appellant)

Raudha Kazibwe (Third Appellant)

Raheed Kazibwe (Fourth Appellant)

Abdurahman Kazibwe (Fifth Appellant)

(NO ANONYMITY ORDER MADE)

Appellants

and

 

Secretary of State of State for the Home Department

Respondent

Representation :

For the Appellants: Mr West, Counsel instructed by Titan Solicitors

For the Respondent: Mr Ojo, Senior Home Office Presenting Officer

 

Heard at Field House on 17 January 2025

DECISION AND REASONS

1.               The anonymity order made by the Upper Tribunal when granting permission is discharged as neither party considered it necessary.

2.               The appellants are citizens of Uganda. Their mother ("the sponsor") lives in the UK with limited leave to remain.

3.               On 20 January 2023 the appellants applied for entry clearance to join the sponsor in the UK. At the time the application was made all five appellants were under 18. The first appellant is now over 18.

4.               It was common ground that the appellants are (and were when the application for entry clearance was made) attending boarding school in Uganda and living with a friend of the sponsor (in Uganda) when not at school.

5.               On 13 April 2023 the respondent refused their applications. The appellants appealed to the First-tier Tribunal where their appeal came before Judge of the First-tier Tribunal Farmer ("the judge"). In a decision dated 3 February 2024 the judge dismissed the appeal. The appellants are now appealing against this decision.

First-tier Tribunal Decision

6.               The judge found aspects of the sponsor's evidence to lack credibility and did not accept her claim that the appellants' father plays no role in the lives of the appellants. The judge gave multiple reasons for this finding, including that:

(a)            It was not credible that the father abandoned the children as claimed when he cooperated in legal proceedings in Uganda and prepared a witness statement for these proceedings.

(b)           The sponsor was not forthcoming about her family in Uganda.

(c)            It only emerged in oral evidence that the appellants attended boarding school.

(d)           There was inadequate evidence to establish that the sponsor pays the school fees for the appellants.

(e)            The correspondence from the school and doctors does not refer to the appellants being estranged from their father.

(f)             The sponsor's witness statement and oral evidence was inconsistent about how often she speaks to the appellants.

(g)           The court order the sponsor produced from a Ugandan court giving her custody of the appellants was made to bolster the application and little weight was attached to it. In paragraph 25 of the decision, the judge stated:

"I have given careful consideration to the Court order. This was an order obtained by consent and single Counsel was representing both parties. I accept that the court must still be satisfied that the sponsor is a suitable person but there is nothing to suggest that she would not be. There is nothing to indicate a forensic assessment of the facts as they presented them. Rather this was presented as an application to which the father consented and it was done, I find, to bolster this application, as the sponsor herself accepted. I attach little weight to it."

(h)           No breakdown was provided as to how money sent by the sponsor to her friend is used for the appellants.

(i)             A satisfactory explanation was not given as to why the appellant waited to apply for her children to enter the UK until just before the first appellant turned 18.

(j)              The sponsor had exaggerated when saying her friend's house, with whom the appellants resided when not at boarding school, was overcrowded, given she stayed there with her British children when visiting.

7.               With respect to sole responsibility, the judge concluded in paragraph 32:

"I have considered the case of TD (PARAGRAPH 297(i)(e): "SOLE RESPONSIBILITY") YEMEN [2006] UKAIT 00049. In particular paragraph 52 which summaries the questions of sole responsibility under the immigration rules and the approach that should be adopted.

(i) the sponsor does not have sole responsibility for the appellant based on all the evidence.

(ii) I find that she has taken some responsibility for financial support and made some payments to Jameo. She has not established this covers all or even the majority of the children's needs.

(iii) I find that the appellant's father also exercises responsibility. I am satisfied about this as I find he is still involved and the evidence in his witness statement and the consent to the court order are in order to bolster the sponsor's case for sole responsibility.

(iv) I have taken into account paragraph (vii and viii) where it is stated that just because one person is physically present and takes day to day decisions, it does not preclude the absent parent having sole responsibility. I find that the sponsor is involved but does not make all the important decisions about her children's lives, although I accept she makes some and is involved."

8.               After finding that the sponsor does not have sole responsibility for the appellants, the judge addressed whether there were serious and compelling other circumstances to make it undesirable that the appellants are excluded from the UK. The judge's consideration of this question is in a single paragraph (paragraph 33), where she states:

"I have given consideration to serious and compelling circumstances. Based on the facts as I find them this case falls some way short of there being serious and/or compelling circumstances to make their exclusion undesirable. I accept Mr West's submissions that the children say they want to join their mother, and there are 5 of them but there is nothing specific to their personal circumstances, situation or health that is serious and compelling so as to make their exclusion undesirable. Nor are there any other circumstances which make their exclusion undesirable. They can continue at boarding school where there is no suggestion that they are not thriving and be cared for in the holidays as they have for the last 6 years."

9.               The judge then considered whether the appellants would have suitable accommodation in the UK and decided that they would.

10.           The judge considered Article 8 outside the Rules and concluded that refusing entry to the appellants would not be unjustifiably harsh. In respect of their best interests, the judge stated in paragraph 39:

" I have considered section 55 and the best interests of the children. I am not satisfied that they are not being well cared for and thriving in their current environment. I am not satisfied that they have no contact with their father or their maternal family who live in Uganda. Their aunts (the sponsor's sisters) have their own family and so there are cousins and an extended family network in Uganda."

Grounds of Appeal

11.           The appellants advanced two grounds of appeal. The first ground concerned the judge's consideration of whether there were serious and compelling circumstances rendering the appellants' exclusion undesirable. It is argued that the judge erred because (a) she failed to assess the best interests of the children; and (b) she failed to take into consideration that the appellants are living with a friend of the sponsor and not a parent or relative. The grounds refer to case law ( Mundeba (s.55 and para 297(i)(f)) [2013] UKUT 88 (IAC) and Azimi-Moayed (decisions affecting children; onward appeals) [2013] UKUT 197 (IAC)) where it is emphasised that the best interests of a child are usually served by being with a parent. It is argued that the judge failed to take this into consideration in the decision.

12.           The second ground concerned the judge's assessment of sole responsibility. It is submitted that the judge misinterpreted the Ugandan Court order, which gives full custody and responsibility of the appellants to the sponsor; and made a finding about the court order being made to bolster the case that was based on a mistaken understanding of the sponsor's evidence. It is also argued in ground 2 that the judge elevated the standard of proof, by in effect requiring certainty rather than deciding the case on the balance of probabilities.

Submissions

13.           I am grateful for the helpful submissions from both Mr West and Mr Ojo. I have not set these out but I have reflected on them and they are incorporated into my analysis.

Discussion

Ground 1: Best Interests in the Assessment of whether there were Serious and Compelling Family or Other Considerations

14.           Under paragraph EC-C 1.6 of Appendix FM, one of the routes available to the appellants was to establish that there were serious and compelling family or other considerations which made their exclusion undesirable. In order to determine this, a consideration of their best interests was required. This is made clear in Mundeba, where sections (iii) and (iv) of the headnote states:

"iii) Although the statutory duty under s.55 UK Borders Act 2009 only applies to children within the UK, the broader duty doubtless explains why the Secretary of State's IDI invites Entry Clearance Officers to consider the statutory guidance issued under s.55.

iv) Family considerations require an evaluation of the child's welfare including emotional needs. 'Other considerations' come in to play where there are other aspects of a child's life that are serious and compelling for example where an applicant is living in an unacceptable social and economic environment. The focus needs to be on the circumstances of the child in the light of his or her age, social backgrounds and developmental history and will involve inquiry as to whether:-

a. there is evidence of neglect or abuse;

b. there are unmet needs that should be catered for;

c. there are stable arrangements for the child's physical care;

The assessment involves consideration as to whether the combination of circumstances are sufficiently serious and compelling to require admission."

15.           I am not persuaded by Mr West's argument that the judge failed to consider the appellants' best interests. This is because, although their best interests are not mentioned in paragraph 33 (which is the only paragraph addressing serious and compelling considerations), a finding is made, in the context of considering Article 8 outside the Rules (in paragraph 39 of the decision) as to their best interests. The analysis in paragraph 33 appears to be based on the finding in paragraph 39 and I am satisfied that the judge had the best interests of the appellants in mind when assessing if there were serious and compelling circumstances.

16.           However, I am persuaded by Mr West's second argument in respect of best interests, which is that the judge failed to appreciate, or have regard to, the significance of his finding that the children were not living with a parent or another family member.

17.           Sub-paragraph (v) of the headnote to Mundeba states:

"As a starting point the best interests of a child are usually best served by being with both or at least one of their parents."

18.           A similar point is made in Azimi-Moayed where paragraph 1(i) of the headnote states:

" As a starting point it is in the best interests of children to be with both their parents and if both parents ..."

19.           I need to be cautious before relying on Azimi-Moayed and Mundeba. Azimi-Moayed is a case that concerned removal of a family, as a unit, from the UK, and therefore relates to very different issues. And Mundeba, as emphasised by Mr Ojo, concerned very different factual circumstances. I am nonetheless satisfied that these cases highlight an important point that has long been recognised in this jurisdiction, which is that it will frequently, but not always, be the case that it will be in the best interests of a child to live with a parent rather than a non-family member and that it should therefore be a starting point, when assessing a child's best interests, that his or her best interests will usually be served by being with a parent.

20.           The judge's assessment of the appellants' best interests is in paragraph 39. The judge does not appear to have treated as a significant consideration that a consequence of refusing entry will be that the children will reside (when not in school) with a friend of the sponsor rather than a parent (or other family member). Moreover, there is nothing in paragraph 39 to indicate that the judge took as a starting point that the usual position is that it is in children's best interests to be with a parent. In my view, this error renders the judge's findings on serious and compelling circumstances (as well as article 8 outside the Rules) unsafe.

Ground 2: Consideration of the Ugandan Court Order and the standard of proof applied when assessing sole responsibility

21.           The Ugandan Court Order was important evidence, and the judge treated it as such. This is clear from the first sentence of paragraph 25 where the judge stated that she gave careful consideration to the Court Order. The judge was correct to identify that the Order was made on the basis of consent and not following a forensic assessment of the facts. It was also open to the judge to take into account when the Order was obtained and consider this as indicative that the purpose was to support the application in the UK. Given these findings, as well as the multiple negative credibility findings (as summarised above in paragraph 6), it was well within the range of reasonable responses to this evidence to give the Order little weight, and to find that it was obtained to bolster the application.

22.           I am also not persuaded that an elevated standard of proof threshold was applied. The judge identified the correct standard of proof (in paragraph 11) and made numerous adverse credibility findings which, considered together, clearly support the conclusion reached on sole responsibility. There is nothing in the decision that, in my view, indicates the judge applied the wrong standard of proof. In reaching this conclusion, I remind myself that the Court of Appeal has made clear that first instance decisions should be respected unless it is quite clear there has been a misdirection of law and it is probable that in understanding and applying the law in their specialised field the tribunal will have got it right. See paragraph 50 of Yalcin v Secretary of State for the Home Department [2024] EWCA Civ 74.

Conclusion

23.           The judge materially erred by carrying out an inadequate best interests assessment. This undermines the judge's findings on serious and compelling conditions, as well as on article 8 ECHR outside the Rules. These aspects of the decision will need to be considered afresh. The error does not, however, undermine the judge's consideration of sole responsibility. Accordingly, this aspect of the decision stands, as do the findings on credibility that lead to the conclusion on sole responsibility.

 

24.           The findings in paragraphs 12 - 32 (concerning credibility and the issue of sole responsibility) and in paragraphs 34 - 35 (where the unchallenged findings on suitably of accommodation are made) are preserved. No other findings are preserved.

Disposal

25.           The general principle is that cases will be retained in the Upper Tribunal for remaking. However, there are exceptions to this, as set out in paragraphs 7.2(a) and (b) of the Practice Statement. Neither exception applies, as (i) given the extent of preserved findings, judicial fact finding is unlikely to be extensive; and (b) neither party was deprived of a fair hearing in the First-tier Tribunal. I recognise that by retaining the matter in the Upper Tribunal the parties will lose the benefit of the two-tiered decision-making process, the significance of which was highlighted in Begum (Remaking or remittal) Bangladesh [2023] UKUT 46 (IAC)). However, as this case does not fall within the exceptions set out in paragraph 7.2, retaining the matter in the Upper Tribunal is the appropriate course of action.

Notice of Decision

26.           The decision of the First-tier Tribunal involved the making of an error of law and is set aside.

27.           The decision will be remade at a resumed hearing in the Upper Tribunal.

28.           The findings in paragraphs 12 - 32 (concerning the issue of sole responsibility) and in paragraphs 34 - 35 (where the unchallenged findings on suitably of accommodation are made) are preserved.

Directions

29.           The parties have permission to rely on evidence that was not before the First-tier Tribunal. Any such evidence must be filed and served at least fourteen days before the resumed hearing.

 

 

D. Sheridan

 

Judge of the Upper Tribunal

Immigration and Asylum Chamber

 

23 February 2025

 

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