Entry Clearance Officer v BB & Ors [2026] EWCA Civ 973

[2026] EWCA Civ 973Case No CA-2025-003020
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE UPPER TRIBUNAL
(IMMIGRATION AND ASYLUM CHAMBER)
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate 31/07/2026
Before
LORD JUSTICE NEWEYLORD JUSTICE SINGHLORD JUSTICE BAKER
Between
ENTRY CLEARANCE OFFICERAppellantBB, CC, DD, EE, FF and GGRespondents
Zane Malik KC (instructed by the Treasury Solicitor) for AppellantDavid Chirico KC and Emma Turnbull (instructed by Birnberg Pierce) for RespondentsHearing Hearing date: 15 July 2026
Approved JudgmentThis judgment was handed down remotely at 10.30am on 31 July 2026 by circulation to the parties or their representatives by e-mail and by release to the National Archives..............................

Introduction

[1]The main issue in this appeal concerns the meaning of “family life” between adults in Article 8 of the European Convention on Human Rights (“ECHR”), particularly in the immigration context. Article 8 is one of the Convention rights set out in Schedule 1 to the Human Rights Act 1998. As the case law on Article 8 demonstrates, the “core” of the right to respect for family life concerns the relationship between a parent and a child in the strict sense, that is a person under the age of 18, but the scope of the right is not limited to that core and may extend, for example, to the relationship between a parent and an adult child or that between adult siblings.[2]The Respondents to this appeal were refused entry clearance to the United Kingdom (“UK”) to join their sponsor, S, as members of his family. Their appeal was dismissed by the First-tier Tribunal (Immigration and Asylum Chamber) (“FTT”), in a decision of FTT Judge Bennett, promulgated on 23 July 2024. In the Upper Tribunal (Immigration and Asylum Chamber) (“UT”), in a decision promulgated on 14 February 2025 (“the error of law decision”), UT Judge Bruce concluded that the FTT had erred in law and set aside that decision. By a further decision of 27 August 2025 (“the remade decision”), the UT allowed the appeals on human rights grounds.[3]The Appellant, the Entry Clearance Officer (“ECO”), who acted in the name of the Secretary of State for the Home Department, appeals to this Court against both of the UT’s decisions, with the permission of Foxton LJ, which was granted on 6 March 2026.[4]The Appellant was represented at the hearing before us by Mr Zane Malik KC and the Respondents were represented by Mr David Chirico KC, who appeared with Ms Emma Turnbull. I express the Court’s gratitude to them all for their written and oral submissions.

Factual background

[5]The Respondents are nationals of Afghanistan who sought permission to enter the UK to join a relative, S, to whom I will refer as “the Sponsor”.[6]The First Respondent, AA, was the Sponsor’s father. Very sadly, AA passed away while this appeal was pending. The Second Respondent, BB, is the Sponsor’s mother. The appeal has therefore been listed in the name of ‘BB and Others’. The Third, Fourth and Fifth Respondents are the Sponsor’s three sisters. The Sixth and Seventh Respondents are the Third Respondent’s son and daughter and are therefore the Sponsor’s nephew and niece: they were born on 5 May 2020 and 19 October 2021.[7]The Sponsor fled Afghanistan in late 2015/early 2016. He arrived in the UK in May 2016 and sought protection. As recorded by the UT, the Sponsor claimed on arrival that he was 15 years old, but was later assessed as being 18. It may be that the UT recorded these ages erroneously, and the correct figures were 16 and 19 respectively, but nothing in this appeal turns on that.[8]The Sponsor was refused protection by the Home Office but successfully appealed to the FTT: Judge Veloso allowed his appeal on 4 June 2018. The basis of his claim was that he had fled forced recruitment by the Taliban. Until the Sponsor’s departure from Afghanistan, he had lived with his parents and sisters in their family home. In Afghanistan, the Sponsor was pressured by a paternal uncle to join the Taliban and, after fleeing to Kabul, was stabbed by his paternal cousins, who had been sent to locate him. The Sponsor’s family arranged for his departure from Afghanistan. The Respondents state that on his journey to the UK the Sponsor depended entirely on an agent, whose directions and instructions he followed.[9]On 23 June 2018 the Sponsor was granted leave to remain in the UK as a refugee until 20 June 2023. On 4 September 2023 he was granted indefinite leave to remain as a refugee.[10]The Sponsor has been diagnosed with post-traumatic stress disorder (“PTSD”), severe depressive disorder and generalised anxiety disorder. He attended therapy sessions with Mr Kevin Perkins (a qualified Child and Adolescent Integrative Psychotherapist, Registered Nurse and Registered Mental Health Nurse) for about six years but subsequently stopped this treatment as he stopped finding it helpful. The Sponsor takes medication for his mental health conditions. He is not currently workingand receives Universal Credit and Personal Independence Payments.[11]The Respondents’ position is that they left Afghanistan under sustained pressure from the Taliban, and in particular from the Sponsor’s uncle, who was pressuring the First Respondent to “give him his daughters” to marry his sons. The Respondents travelled from Afghanistan by foot and car to Iran and then to Turkey. They do not have immigration leave in Turkey and sought to regularise their position in Turkey but were turned away by the authorities.[12]The Sponsor has visited his family in Turkey twice: in September 2020 and December 2022. He cannot travel alone because of his mental health conditions; he was accompanied by Mr Perkins on his first visit and by a friend on his second visit.[13]On 9 May 2022, the Respondents applied from Turkey for entry clearance to the UK under the Immigration Rules, Appendix Family Reunion (Sponsor with Protection). Although this is not material to the present appeal, Appendix Family Reunion was closed to new applications from 4 September 2025, pending a review of the Rules by the Government (Statement of changes to the Immigration Rules: HC 1298, 4 September 2025). The applications were refused on 8 August 2023. In refusing those applications, the ECO considered (in accordance with the Immigration Rules) whether refusal of entry clearance would breach Article 8 of the ECHR and concluded that it would not, as there was no relevant “family life”.[14]The Respondents appealed to the FTT. The FTT dismissed the appeals on the ground that Article 8 was not engaged because family life had not been established between the Sponsor and the Respondents.[15]Permission to appeal against that decision was granted by UT Judge Neville on 29 October 2024.[16]In its error of law decision, dated 14 February 2025, the UT found that the FTT had erred in its approach to what constitutes “family life” under Article 8 of the ECHR, and set that decision aside with a direction that the matter be brought back before the same UT judge.[17]The UT then remade the decision, on 27 August 2025, concluding that Article 8 was engaged and that the ECO’s refusal decision constituted a disproportionate interference with the Article 8 rights engaged. The UT therefore allowed the appeals on human rights grounds.

The FTT’s decision

[18]The Sponsor and Mr Perkins gave oral evidence (including under cross-examination) at the hearing before the FTT. The Sponsor’s evidence is summarised at paras 12-42 of the FTT’s judgment and Mr Perkins’ evidence is summarised at paras 44-55. The FTT also had regard to the psychiatric report of Dr Nuwan Galappathie, a Consultant Forensic Psychiatrist,and the independent social work report prepared by Ms Judith Jones, a Registered Social Worker.[19]At the beginning of the section of the judgment headed ‘Reasons for Decision’, at paras 65-66, the FTT accepted the following: i) The Sponsor is young for his age in some respects. ii) The Sponsor has serious and long-term mental health problems. The FTT accepted the diagnoses of “severe episode of depression, a generalised anxiety disorder and PTSD”. iii) Mr Perkins’ opinion that the Sponsor’s current condition is exacerbated by concerns for the Respondents’ welfare, that reuniting the family would have beneficial consequences for the Sponsor’s recovery, and that the Sponsor’s condition improved markedly during his visit to Turkey in 2020 but that it deteriorated afterwards.[20]The FTT then stated that the first question in the appeals was “whether family life exists between the Sponsor and any of the [Respondents]”: see para 67. In the same paragraph the FTT stated:
“This question is about the nature of the Sponsor’s relationship with the [Respondents] and not about ways of treating the Sponsor’s condition or about ameliorating the [Respondents’] circumstances in Turkey and dealing with the First and Second [Respondents’] health problems. These questions may become relevant at a later stage if family life is established, when proportionality is considered.”
[21]With regard to the applicable test for the existence of “family life”, the FTT said as follows, at paras 68-72: “68. Arden LJ defined the concept of family life in Kugathas [2003] EWCA 31 (at paragraph 25) thus:- ‘25. Because there is no presumption of family life, in my judgment a family life is not established between an adult child and his surviving parent or other siblings unless something more exists than normal emotional ties … Such ties might exist if the Appellant were dependent on his family or vice versa. It is not, however, essential that the members of the family should be in the same country. The Secretary of State accepts that that possibility may exist, although in my judgment it will probably be exceptional.’69. Sedley LJ explained the concept of dependency in paragraph 17 of his judgment in the same case thus:- ‘17. If dependency is read down as meaning “support”, in the personal sense, and if one adds, echoing the Strasbourg jurisprudence, “real” or “committed” or “effective” to the word “support”, then it represents in my view the irreducible minimum of what family life implies.’70. In paragraph 19 of his judgment, Sedley LJ contrasted this with the ordinary emotional ties which exist between adult relatives by saying ‘Neither blood ties nor the concern and affection that ordinarily go with them are, by themselves or together, in my judgment enough to constitute family life. Most of us have close relations of whom we are extremely fond and whom we visit, or who visit us, from time to time; but none of us would say on those grounds alone that we share a family life with them in any sense capable of coming within the meaning and purpose of Article 8.’71. To similar effect, Sir Stanley Burnton said in Singh [2015] EWCA Civ 630 that the existence of family life depends on the facts and that “the love and affection between an adult and his parents or siblings will not of itself justify a finding of a family life. There has to be something more.”72. The question in this part of the appeals is, therefore, whether the [Respondents] can show that there are probably stronger ties between them and the Sponsor than the ordinary emotional ties which exist between adult relatives in terms of love, affection and concern for each other because they provide real, committed or effective support to the Sponsor or the Sponsor provides them with such support. The extent to which such emotional ties manifest themselves is likely to depend on the circumstances because, for example, relatives rally round, often for prolonged periods, when serious illness strikes or other family crises occur.” ‘25. Because there is no presumption of family life, in my judgment a family life is not established between an adult child and his surviving parent or other siblings unless something more exists than normal emotional ties … Such ties might exist if the Appellant were dependent on his family or vice versa. It is not, however, essential that the members of the family should be in the same country. The Secretary of State accepts that that possibility may exist, although in my judgment it will probably be exceptional.’ ‘17. If dependency is read down as meaning “support”, in the personal sense, and if one adds, echoing the Strasbourg jurisprudence, “real” or “committed” or “effective” to the word “support”, then it represents in my view the irreducible minimum of what family life implies.’ ‘Neither blood ties nor the concern and affection that ordinarily go with them are, by themselves or together, in my judgment enough to constitute family life. Most of us have close relations of whom we are extremely fond and whom we visit, or who visit us, from time to time; but none of us would say on those grounds alone that we share a family life with them in any sense capable of coming within the meaning and purpose of Article 8.’[22]The FTT then reasoned as follows: i) The FTT accepted that family life “probably” existed between the Sponsor and his family before the Sponsor left Afghanistan because(a) they lived together as a family unit in the family home;(b) the Sponsor left before his 19th birthday; and(c) there was no evidence that, by then, he had formed an independent life: see para 73. ii) This probably changed after the Sponsor left Afghanistan at the end of 2015 or early 2016 because (a) the circumstances meant that he was unlikely to return; (b) it seems that he was not aware of any plan for the family to follow him; (c) the Sponsor spoke to his father once during his journey to the UK;(d) the family then lost contact for a period of around two and a half years;(e) there is evidence of the Sponsor starting to make a new life of his own in the UK by living alone, meeting up with a childhood friend, going to college to learn English and having attended therapy with Mr Perkins: see para 74. iii) The question was therefore whether family life had been re-established since the Respondents had made contact with the Sponsor after their arrival in Turkey. iv) The FTT accepted that the Sponsor had not yet formed a relationship or developed a full social life in the UK because of his mental health problems: see para 75. However, it did not follow from this that the Sponsor “has become dependent on his family again or that he is supported by them”. Family life had not become reinstated because of the family’s past experiences or the Sponsor’s mental health problems. v) There was no form of financial dependency, either through the Sponsor supporting the Respondents, or vice versa: see para 76. vi) The Sponsor has been in regular contact with the Respondents since he re-established contact with them in 2019 and he has visited them twice since then: see para 78. Contact involved video calls once or twice a week and exchanging texts and WhatsApp messages between calls. The Sponsor’s mother said that the calls take place when they have money to pay for the internet. vii) The FTT did not accept that this contact amounted to “emotional support”, saying as follows, at para 79: “I do not accept that the extent of this contact probably amounts to emotional support because I do not accept that it is anything more than a manifestation of the ordinary emotional ties which exist between adult relatives. Close adult relatives are often in frequent and, sometimes, lengthy contact with each other, without having family life together. This may continue over a prolonged period especially, for example, where there is illness or where there are other concerns about their wellbeing. The Appellants and the Sponsor both live in difficult circumstances. The Appellants say that they are living illegally in Turkey and that they fear being deported to Afghanistan. The First and Second Appellants have health problems. The Sponsor has serious mental health problems, does not work, has a limited social network and lives on his own.” viii) The FTT commented that, with regard to the evidence of the Sponsor’s visits to Turkey and the evidence from Ms Jones regarding the family’s interactions, this represented ordinary love and affection between close adult relatives: see paras 80-81. ix) The FTT then stated, at paras 83-85, with regard to the evidence and submissions put forward to establish family life: “83. In brief summary, this evidence does little more than establish that the Sponsor is a much-loved member of a close-knit family, that the [Respondents] and the Sponsor derive much pleasure from their contact with each other, which they value greatly, that this contact helps to raise their spirits, and that they feel whole when they are together. They worry a lot about each other. They feel low when they cannot speak to each other because of their worries about each other, which affects their health. They want to be reunited because this will be beneficial for them all. They would like the Sponsor to take over the role of head of the family from his elderly father but he cannot do this effectively at the present because they are separated. The separation affects the Sponsor’s mental health but he will recover if they are reunited. 84. Insofar as this relates to the present, these are all manifestations of the ordinary emotional ties that exist between close relatives. It does not show any real, effective or committed support over and above this. Without being prescriptive about what might evidence such support, it does not, for example, show that any of the [Respondents] supported the Sponsor during his therapy with Mr Perkins by following what Mr Perkins was telling him, helping him to benefit from it and encouraging him during his therapy or supporting him in connection with his decision to terminate it. It similarly does not show that any of the [Respondents] support the Sponsor by helping him to run his life and look after himself. If they are reunited and live together as a family, family life might well be reinstated but their hopes that they will be reunited does not reinstate it. 85. I accept that the evidence about contact, as well as Mr Perkins’ evidence, shows that the [Respondents] and the Sponsor have considerable concerns for each other’s wellbeing. Concern does not of itself amount to support because it is part of the ordinary emotional ties that exist between adult relatives. In view of their circumstances, I do not accept that there is anything unusual about them having considerable concerns for each other. The Sponsor’s concerns may well exacerbate his mental health problems but they do not give rise to family life unless they are accompanied by the required level of support.” x) The evidence did not show that the Sponsor had begun fulfilling the role of “head of the family” in any real sense: see para 86. xi) Mr Perkins had said that it was difficult to give specific examples of mutual support between the Sponsor and the Respondents and the FTT noted that the question was not dealt with in Mr Perkins’ report: see para 87. xii) The FTT concluded, at para 88, that: “Looking at all the evidence in the round, I do not accept that family life has been reestablished between the Sponsor and the [Respondents]. The various aspects of their relationship, including their hope that the Sponsor will take over as head of the family, are all aspects of their love, affection and concern for each other viewed from different perspectives and are not therefore separate considerations which change their complexion when they are viewed cumulatively. In the passage I have quoted from Sedley LJ’s judgment in Kuguthas, Sedley LJ said ‘neither blood ties nor the concern and affection that ordinarily go with them are, by themselves or together, in my judgment enough to constitute family life’. For these reasons, I do not accept that family life exists between the Sponsor and any of the [Respondents].” (Bold in original) xiii) In any event, the FTT did not accept that family life could exist between the Sponsor and the Sixth and Seventh Respondents, who had both been born after the Sponsor left the family home and were cared for by their mother: see para 89.[23]Having concluded that there was no relevant family life within the meaning of Article 8(1), the FTT Judge did not consider it necessary to address the issue of proportionality under Article 8(2) and therefore dismissed the appeals. The UT’s Decisions The error of law decision

The UT’s Decisions

[24]After summarising the FTT’s judgment at paras 62-67, the UT noted that(a) the FTT had approached its task “with care … and appropriately anxious scrutiny; and(b) it could only interfere with that decision if it was “flawed for clear error of law”: see para 68. “Somewhat reluctantly” the UT reached the conclusion both that the FTT had misdirected itself to search for some “exceptionality” in the facts; and that, on those facts, the denial of the existence of family life was irrational.[25]The key passages of the UT’s reasoning are to be found at paras 70-72, which need to be set out in full because the question whether the UT was entitled to set aside the FTT’s decision depends on the soundness of that reasoning:
“70. The real question here is whether the Tribunal misunderstood what the Court of Appeal meant by ‘normal’. In considering the evidence of daily contact the Tribunal writes ‘I do not accept that the extent of this contact probably amounts to emotional support because I do not accept that it is anything more than a manifestation of the ordinary emotional ties which exist between adult relatives’ (emphasis added). One might ask here whether men in their mid-twenties ‘ordinarily’ spend hours a week talking to their sisters and messaging their parents. More revealingly at its §80 the Tribunal dismisses Mr Perkins’ evidence about the intensity of the reunion by saying ‘any close relatives who were reunited in similar circumstances would be overjoyed’. This was a clear error. ‘Normal’ does not mean ‘normal for someone similarly situated’. It just means ‘normal’. It is no doubt true that any ‘normal’ Afghan family separated by war, forced migration, trauma, years and thousands of miles would be similarly overjoyed to see each other, but that does not defeat this claim, since that would not be a family living in ‘normal’ circumstances. That the Tribunal misunderstood the test is further illustrated by its reference to families who are brought closer together by serious illness. Again, that is not a ‘normal’ state of affairs. That is a paradigm situation in which Article 8 may be engaged: for instance, where an adult child has to look after an ailing parent. The Tribunal’s search for some ever more extreme emotional attachment meant it failed to stand back and ask itself the simple question: is there here evidence of real, effective, committed support? 71. The answer to that question must, in my view, be yes. The evidence from the point of view of the [Respondents] was that AA, the father of the family, is elderly and increasingly unfirm. In accordance with his culture he now looks to his son to support his household of women. They are all living under a significant degree of stress, in a foreign environment and in fear of removal to Afghanistan. They have all missed S and worry about him, but at the same time see him as their ‘only hope’. That is the background to their daily contact, and lengthy calls to him. From the point of view of S himself, the evidence is even more powerful. Mr Perkins has known S, and this family, for a number of years. He was able to speak in detail about the extent of the mental health problems suffered by S and how extraordinarily important it is to him to be reunited with his family. Even more stark was the evidence of consultant psychiatrist Dr Galappathie – unchallenged and accepted by the Tribunal – that ‘The Sponsor has complex conditions which prevent him developing his own family life here’ [from the FTTs own summary at its §62]. For this reason his entire family life is with the [Respondents]. I am satisfied that the only answer to the question of whether the members of this family show each other real, effective and committed emotional support is yes. 72. I set the decision of the FTT aside and find as fact that there is a family life at play here. The remaining Razgar questions must be considered and determined following a further hearing before me.”
The reference to the Razgar questions was a reference to whether the interference with the right to respect for family life was justified under Article 8(2), in particular the question of proportionality: see R (Razgar) v Secretary of State for the Home Department [2004] UKHL 27; [2004] 2 AC 368, at para 17 (Lord Bingham of Cornhill).

The remade decision

[26]As it was in effect conducting a rehearing, the UT heard evidence from the Sponsor and Mr Perkins (as the FTT had previously done).[27]After summarising its earlier error of law decision, the UT noted two recent judgments of the European Court of Human Rights on the question of “family life” between adults: Kumari v The Netherlands (44051/20) and Martinez Alvorado v The Netherlands (4470/21). The UT remained satisfied with the conclusions it had reached in the error of law decision about the existence of family life in this case: see para 33.[28]The UT then turned to consider the proportionality issue and concluded, at para 48:
“I have considered all of these factors cumulatively. Having done so, and having given due weight to the public interest, including the strong public interest in the maintenance of immigration control, I am satisfied that on the particular facts of this case the refusals of entry clearance are ‘unjustifiably harsh’. I find that the interference is, in these cases, disproportionate and the appeals must be allowed.”
[29]The appeals were therefore allowed on human rights grounds.[30]Before I turn to the grounds of appeal in the present case, I must briefly consider the key judgments of this Court on the meaning of “family life” in Article 8, because there has been an important development since the UT gave its decisions in this case.

Key judgments of the Court of Appeal on “family life”

[31]In the present case both the FTT and the UT understandably proceeded on the basis of the test as it had been developed in this Court, in particular the dicta of Sedley LJ in Kugathas v Secretary of State for the Home Department [2003] EWCA Civ 31; [2003] INLR 170, at para 17. As was explained to us at the hearing before this Court, those dicta had been consistently followed in the tribunals at least since the decision of this Court in Rai v Entry Clearance Officer, New Delhi [2017] EWCA Civ 320. But those dicta have now been disapproved by this Court: see IA and others v Secretary of State for the Home Department [2025] EWCA Civ 1516; [2026] 2 WLR 1001. The judgment of the Court was given by Sir Geoffrey Vos MR, Sir James Dingemans SPT and Elisabeth Laing LJ.[32]As the Court said by way of summary at para 10, the consistent jurisprudence of the European Court of Human Rights has been that “family life” for the purpose of Article 8 is normally limited to the “core” family and there will be no family life between parents and adult children or between adult siblings unless they can demonstrate additional elements of dependence, involving more than the normal emotional ties. In IA the FTT and UT had applied the wrong test, that is the “real, effective or committed support” test. This Court held that that test is lower than the additional elements of dependence test, which is the correct test.[33]As the Court explained, at para 121, “exclusive or complete dependency is not required.” Nevertheless, as the Court said at para 125, it obviously requires some dependence, and “dependence is more than the existence of support, even if that support is qualified by the adjectives real, committed or effective.” Whilst one person being completely dependent on another “might normally satisfy the additional elements of dependency test, it is not the only way that the test can be satisfied…”[34]Finally for relevant purposes, the Court said at para 128:
“… dependency is different from support. Establishing real, committed or effective support by itself may or may not be sufficient to establish additional elements of dependency for the existence of family life between adult siblings.”

Grounds of Appeal

[35]Before this Court the ECO advances three grounds of appeal: i) Ground 1: It was not open to the UT to interfere with the FTT’s conclusion that Article 8 was not engaged, nor to set aside its decision dismissing the Respondents’ appeals. ii) Ground 2: In any event, the UT erred in law in concluding that Article 8 was engaged and that this was the only rational conclusion to be drawn from the facts. iii) Ground 3: The UT’s assessment of proportionality was legally flawed.[36]In support of Ground 1, Mr Malik submits that the UT was not entitled to interfere with the FTT’s decision and therefore erred in law in setting it aside. In summary, he submits as follows: i) The FTT carefully considered the evidence and concluded that, while family life probably existed between the Sponsor before the Sponsor’s departure from Afghanistan in 2015/2016, the Respondents had failed to establish the existence of family life for the purpose of engaging Article 8 at the time of the appeal. ii) The UT subjected the FTT’s judgment to an overly textual analysis. iii) The UT was not entitled to interfere with the FTT’s decision. iv) Nor was the FTT’s decision perverse.[37]On Ground 2, Mr Malik submits that the UT’s own conclusion that Article 8 was engaged on the facts of this case itself involved an error of law. In summary, he submits that: i) The relevant principles have now been clarified by the Court of Appeal in IA. In particular:(a) What is required is dependence and that is more than the existence of support. Whether there is real, committed and effective support is not the test in itself.(b) Dependence involving more than the normal emotional ties is a fact-sensitive exercise.(c) Financial dependency and dependency created by disability play a part in the evaluation.(d) It is harder for adults to demonstrate the necessary dependency because family life is normally limited to the core cohabiting family. ii) The UT applied the wrong test because it asked whether the Sponsor and Respondents show each other “real, effective and committed support”, which this Court has held is not the correct test for assessing whether there is family life between adults.[38]On Ground 3, Mr Malik submits that the UT’s assessment of proportionality was “legally flawed”. It is unnecessary for present purposes to set out Mr Malik’s submissions on this ground in detail, because, as will become apparent, I do not think that it arises given the conclusion I have reached on Ground 1.

The Respondent’s Submissions

[39]The Respondents submit that the UT did not make a material error of law or, alternatively, invite the Court to uphold the UT’s orders for alternative or additional reasons.[40]On Ground 1, in summary, Mr Chirico submits that: i) The UT’s conclusion that the FTT had misdirected itself to search for “exceptionality” in the facts, was plainly correct and sustainable. The UT was correct to find that the FTT wrongly compared the relationship between the Respondents and the Sponsor with others reunited in similar circumstances and therefore applied too onerous a threshold for the existence of family life. ii) The UT did not engage in a “narrow textual analysis”; rather, it was evaluating the core issue of the substance of the FTT’s reasons for holding that the “additional elements of dependence” test was not met. iii) The UT’s irrationality finding was both reasonable and right on the evidence before the FTT, including the evidence of Dr Galappathie and Mr Perkins.On the evidence accepted by the FTT, no rational tribunal, applying the correct test, could have concluded that family life was not engaged.[41]On Grounds 2 and 3, in summary, Mr Chirico makes the following points: i) The Respondents’ primary submission is that, reading its two decisions fairly and as a whole, the UT in substance applied the correct legal test for the engagement of family life. It is plain from each decision that the UT was aware of the “additional elements of dependence” test and its decisions contained all of the components necessary to show it found the test to be met. ii) In the remade decision, the UT continued to refer to the “something more than emotional ties” formulation and referred to the need for “additional elements of dependence”. The Respondents submit that it is clear from its findings on the evidence the UT approached dependence as something more than the existence of support. iii) The Respondents submit, in the alternative, that even if the UT erred in respect of the legal test, this is immaterial because, any rational tribunal, applying the correct test, would have reached the same conclusion.[42]Further, as set out in the Respondent’s Notice, the Respondents invite the Court to uphold the UT decisions for the following alternative or additional reasons:(a) First, the UT should also have set aside the FTT’s decision on the express and additional basis that the FTT had misdirected itself in its approach to the question whether there are “additional elements of dependence involving more than the normal emotional ties”, and/or that the FTT had reached a perverse conclusion in answer to that question (because the only rational answer to that question, on the evidence before it, was “yes”).(b) Second, the UT should also have explicitly made the finding in the remade decision that there were “additional elements of dependence involving more than the normal emotional ties” between the Sponsor and the Respondents.[43]Overall, Mr Chirico submits that there was an exceptionally strong evidential basis, particularly having regard to the medical evidence, for the UT’s conclusion that refusal of entry clearance would lead to unjustifiably harsh consequences and the UT identified the exceptional quality and breadth of the expert and professional evidence about the Sponsor.[44]In developing his submissions at the hearing before us, Mr Chirico emphasised what has been said at the highest level about the nature and essence of family life in Article 8. In particular, he drew our attention to the opinion of Lord Bingham in EM (Lebanon) v Secretary of State for the Home Department [2008] UKHL 64; [2009] 1 AC 1198, at para 36. In that passage Lord Bingham quoted an earlier decision of the House of Lords, M v Secretary of State for Work and Pensions [2006] UKHL 11; [2006] 2 AC 91, at para 5, where reference was made to “the love, trust, confidence, mutual dependence and unconstrained social intercourse which are the essence of family life”.[45]Lord Bingham also quoted what had been said by the House of Lords in Huang v Secretary of State for the Home Department [2007] UKHL 11; [2007] 2 AC 167, at para 18:
“Human beings are social animals. They depend on others. Their family, or extended family, is the group on which many people most heavily depend, socially, emotionally and often financially. There comes a point at which, for some, prolonged and unavoidable separation from this group seriously inhibits their ability to live full and fulfilling lives.”
[46]Mr Chirico also emphasised two other passages in the opinion of Lord Bingham in EM (Lebanon). At para 37, Lord Bingham said:
“Families differ widely, in their composition and in the mutual relations which exist between the members, and marked changes are likely to occur over time within the same family. Thus there is no pre-determined model of family or family life to which article 8 must be applied. The article requires respect to be shown for the right to such family life as is or may be enjoyed by the particular applicant or applicants before the court, always bearing in mind (since any family must have at least two members, and may have many more) the participation of other members who share in the life of that family. In this context, as in most Convention contexts, the facts of the particular case are crucial.”
[47]At para 40, Lord Bingham said:
“It is no doubt a feature of their family life together that the appellant renders for AF the sort of services which a mother ordinarily does render for a growing adolescent. But it would be wrong to regard the relationship between the appellant and AF as simply one in which the mother renders services for the son. The evidence makes plain that the bond between the two is one of deep love and mutual dependence. It cannot be replaced by a new relationship between AF and a father who has inflicted physical violence and psychological injury on the mother, who has been sent to prison for failing to support him, whom he has never consciously seen and towards whom AF understandably feels strongly antagonistic. Nor can it be replaced by a new relationship with an unknown member or members of the father’s family.”
[48]I do not find those citations to be of material assistance in the present case. They are entitled to the greatest respect but they were general observations as to the nature and importance of the right to respect for family life in Article 8. It is notable that, on its facts, EM (Lebanon) concerned the “core” relationship between a mother and her young child. The specific issue which has arisen in a number of cases, including Kuguthas and IA, is the extent to which there is relevant family life in the case of a relationship between adults.[49]Mr Chirico also emphasised what was said by McCombe LJ in AP (India) v Secretary of State for the Home Department [2015] EWCA Civ 89, at para 45:
“It seems to me that adult children (male or female) who are young students, from most backgrounds, usually continue to form an important part of the family in which they have grown up. They attend their courses and gravitate to their homes during the holidays, and upon graduation, while (as the FTT put it) they seek to ‘make their own way’ in the world. Such a child is very much part of the on-going family unit and, until such a child does fly the nest, his or her belonging to the family is as strong as ever. The proportionality of interference with the family rights of the various family members should receive, I think, careful consideration in individual cases where this type of issue arises.”
[50]Although that citation does concern the relationship between parents and an adult child, I do not find it to be of material assistance in the present case, because, as the authorities such as IA establish, whether there is family life in a particular case calls for a fact-sensitive inquiry. Further, the sort of scenario that McCombe LJ had in mind in AP (India), which describes the gradual process by which adult children start to leave the family home while they are students but have not yet “flown the nest”, is very different from the sort of situation which arises in the present case, where there was, on any view, a traumatic rupture of family life when the Sponsor was forced to leave his home in Afghanistan.[51]Mr Chirico also drew our attention to what was said by the European Court of Human Rights in Tuquabo-Tekle and others v The Netherlands [2006] 1 FLR 798. At para 45, the Court noted that it had previously held that parents who leave children behind while they settle abroad cannot be assumed to have irrevocably decided that those children are to remain in the country of the origin permanently and to have abandoned any idea of a future family reunion: see Şen v The Netherlands [2003] 36 EHRR 7, at para 40.[52]At para 47 of Tuquabo-Tekle, the Court remarked that it was questionable to what extent it could be maintained in that case, as the government did in its submissions, that the applicant had left her child behind “of her own free will”, bearing in mind that she had fled Eritrea in the course of a civil war to seek asylum abroad following the death of her husband. Be that as it may, the Court said, it was, in any event, the case that she and her husband had been lawfully resident in the Netherlands for a number of years, and had obtained Dutch nationality. Their two children had been born in the Netherlands, had Dutch nationality and attended school there. Consequently, they had only minimal ties, if any, to their parents’ country of origin.[53]Again I do not find that judgment of the European Court of Human Rights to be of material assistance in the present context. It was not concerned with the sort of relationship between adults which is an issue in the present case.[54]Ultimately, despite Mr Chirico’s valiant efforts to persuade us otherwise by reference to authority, this case, like so many in this area, turns on its own particular facts. I turn to my analysis of this particular case against that background.

Analysis

[55]It is well established, and common ground before us, that a party aggrieved by a decision by the UT to set aside a decision of the FTT can only appeal against that decision after the UT has concluded the overall proceedings, in the present case by remaking the decision. Nevertheless, importantly, the first question which needs to be resolved is whether the UT was entitled to set aside the decision of the FTT at all. If it was not, then it should have never embarked upon remaking the decision.[56]The principles which govern the jurisdiction of the UT in the context of an appeal from the FTT are well established and were helpfully summarised by Green LJ in Ullah v Secretary of State for the Home Department [2024] EWCA Civ 201; [2024] 1 WLR 4055, at para 26:
“Sections 11 and 12 TCEA [Tribunals, Courts and Enforcement Act] 2007 restrict the UT’s jurisdiction to errors of law. It is settled that: (i) the FTT is a specialist fact-finding tribunal. The UT should not rush to find an error of law simply because it might have reached a different conclusion on the facts or expressed themselves differently: see AH (Sudan) v Secretary of State for the Home Department [2008] AC 678 at para 30; (ii) Where a relevant point was not expressly mentioned by the FTT, the UT should be slow to infer that it had not been taken into account: e g MA (Somalia) v Secretary of State for the Home Department [2011] 2 All ER 65 at para 45; (iii) When it comes to the reasons given by the FTT, the UT should exercise judicial restraint and not assume that the FTT misdirected itself just because not every step in its reasoning was fully set out: see R (Jones) v First Tier Tribunal (Social Entitlement Chamber) [2013] 2 AC 48 at para 25; (iv) The issues for decision and the basis upon which the FTT reaches its decision on those issues may be set out directly or by inference: see UT (Sri Lanka) v The Secretary of State for the Home Department [2019] EWCA Civ 1095 at [27]; (v) Judges sitting in the FTT are to be taken to be aware of the relevant authorities and to be seeking to apply them. There is no need for them to be referred to specifically, unless it was clear from their language that they had failed to do so: see AA (Nigeria) v Secretary of State for the Home Department [2020] 4 WLR 145 at para 34; (vi) It is of the nature of assessment that different tribunals, without illegality or irrationality, may reach different conclusions on the same case. The mere fact that one tribunal has reached what might appear to be an unusually generous view of the facts does not mean that it has made an error of law: see MM (Lebanon) v Secretary of State for the Home Department [2017] 1 WLR 771 at para 107.”
[57]In the present case, the critical part of the UT’s reasoning as to why it found the FTT to have erred in law is to be found at para 70 of the error of law decision, which I have quoted in full above. I respectfully disagree with the UT that the FTT failed “to stand back and ask itself the simple question: Is there here evidence of real, effective, committed support?” In my judgment, that is precisely what the FTT did do, in detail and at length in its reasoning at paras 65-90. It is also important to read the entirety of that reasoning fairly and as a whole. As this Court has frequently observed, an appellate tribunal should not adopt a “nit-picking” approach or take a passage in isolation and out of context.[58]Nor, in my judgment, did the FTT fall into the error identified in para 70 of the UT decision: the FTT did not impose a stricter test of what is meant by “normal” family circumstances. The FTT did not impose a test of “exceptionality” in this case. It was simply applying the legal direction which it had given itself to the particular facts of this case and then reached a conclusion of fact which was reasonably open to it on the evidence before it, which included oral evidence from the Sponsor and Mr Perkins. In order to explain this, I need to go back to the judgment of the FTT and emphasise again that it must be read fairly and as a whole.[59]The reasons for the FTT decision were set out at length at paras 65-90, which I have summarised in detail above but bear some repetition here. At para 67, the FTT directed itself (correctly) that “the first question in these appeals is whether family life exists between the Sponsor and any of the [Respondents].” As the FTT observed, that question is about the nature of the Sponsor’s relationship with the Respondents and not about ways of treating his condition or about ameliorating their circumstances in Turkey and dealing with the First and Second Respondent’s health problems. Those questions might become relevant at the stage of proportionality, if that stage were reached, but, first, the question is whether family life has been established at all.[60]Having considered what were then the leading authorities of Kugathas and Singh, the FTT directed itself as follows, at para 72:
“The question in this part of the appeals is, therefore, whether the Appellants can show that there are probably stronger ties between them and the sponsor than the ordinary emotional ties which exist between adult relatives in terms of love, affection and concern for each other because they provide real, committed or effective support to the sponsor or the sponsor provides them with such support.”
The FTT continued:
“The extent to which such emotional ties manifest themselves is likely to depend on the circumstances because, for example, relatives rally round, often for prolonged periods, when serious illness strikes or other family crises occur.”
[61]Having concluded that family life had ended in the two and a half years after the sponsor left Afghanistan, when he lost contact with his family completely, at para 74, the FTT considered, at para 75, that the question was therefore whether family life had been re-established since contact was made after the appellant’s arrival in Turkey.[62]The FTT then carefully considered whether there was any form of financial dependency and concluded that there was not. It noted that there were practical limitations to what the Respondents could do to support the Sponsor as they live in different countries. There were also practical limitations on what the Sponsor could do to support the Respondents because he is not in Turkey.[63]The FTT accepted that the Sponsor had been in regular contact with the Respondents since 2019 and had visited them twice: see para 78. But, at para 79, the FTT did not accept that the extent of that contact probably amounts to emotional support because the FTT did not accept that “it is anything more than a manifestation of the ordinary emotional ties which exist between adult relatives.” It was in this context that the FTT continued:
“close adult relatives are often in frequent and, sometimes, lengthy contact with each other, without having family life together. This may continue over a prolonged period especially, for example, where there is illness or where there are other concerns about their wellbeing.”
This is also the context for what the FTT said at para 80:
“I accept Mr Perkins’ evidence that the visit to Turkey was a highly emotional event with the sponsor, his parents and his sisters. However, I do not accept that this joy establishes that family life probably exists because any close relatives who are reunited in similar circumstances would be overjoyed, irrespective of whether family life existed.”
[64]Similarly, at para 81, the FTT accepted the evidence from Ms Jones about the way in which the Sponsor, the Second, Fourth and Fifth Respondents had interacted when she interviewed them. But, the FTT continued:
“As with the joy at being physically reunited, I do not accept that this establishes that family life has been reestablished because it is symptomatic of the ordinary love and affection that adult close relatives have for each other.”
[65]The FTT then turned to the evidence about the contact between the Sponsor and the Respondents, at paras 82-83. The FTT concluded, at para 84, that:
“These are all manifestations of the ordinary emotional ties that exist between close relatives. It does not show any real, effective or committed support over and above this.”
Importantly, the FTT finished para 84 as follows:
“If they are reunited and live together as a family, family life might well be reinstated but their hopes that they will be reunited does not reinstate it.”
[66]After considering the concerns that the Respondents and the Sponsor have for each other, and taking into account that the Respondents and the Sponsor come from a patriarchal society where there is an expectation that the men will look after the women, the FTT concluded, at para 88:
“Looking at all the evidence in the round, I do not accept that family life has been reestablished between the sponsor and the [Respondents].”
[67]At para 89, the FTT also concluded that, in any event, it was not satisfied that family life could exist between the Sponsor and the Sixth and Seventh Respondents because those respondents are young children who were born after he had left the family home, and they are looked after by their mother. There was no evidence that they had any ties with the Sponsor over and above ordinary emotional ties.[68]In my judgment, in those detailed and lengthy reasons, when they are read fairly and as a whole, the FTT did not fall into error as a matter of law. The FTT did not misdirect itself, save in so far as it applied a legal test (set out in the dicta of Sedley LJ in Kugathas which have now been disapproved by this Court in IA) which was in the Respondents’ favour rather than in favour of the Secretary of State. As this Court has now made clear in IA, the test is one of dependency and not simply one of effective, real or committed support.[69]In my judgment, the UT also fell into error in concluding that there was only one reasonable answer available to the question before the FTT. Applying the judicial restraint which is incumbent on an appellate tribunal in this context (see Ullah) the UT should have resisted the temptation simply to interfere with the conclusion of fact and evaluation which was for the FTT to make in this case. In that context, I would emphasise that the FTT referred in its judgment to all the medical and other evidence which was before it, and had the advantage of hearing oral evidence from the Sponsor and Mr Perkins.[70]For similar reasons, I would reject the grounds in the Respondent’s Notice, which have been advanced on behalf of the respondents as an additional or alternative way of supporting the UT decision to set aside the FTT decision.[71]In the present case, the FTT and the UT applied a test which was more generous to the Respondents than the correct test, as has now been clarified by the judgment of this Court in IA. In so far as the FTT fell into error, therefore, it was not a material one, since it did not prejudice the Respondents. To the contrary, in so far as there was prejudice, it was to the ECO.[72]In those circumstances, I would allow this appeal by the ECO on Ground 1. It is unnecessary to consider Ground 2, save to note that the correct legal test has now been explained by this Court in IA.[73]It follows that, since, in my view, the UT was not entitled to set aside the decision of the FTT, the correctness or otherwise of the UT decision when it remade that decision does not and cannot arise. The simple fact is that the UT should never have embarked on the exercise of remaking the FTT decision. In those circumstances, it is unnecessary to address Ground 3 on this appeal.

Conclusion

[74]For the reasons I have given I would allow this appeal by the ECO against the UT’s error of law decision and reinstate the decision of the FTT.[75]I agree.[76]I also agree.