Danny Bazini of No5 Barristers’ Chambers, leading Susana Ferrín of No5 Barristers’ Chambers, successfully acted for the three respondents before the Upper Tribunal (IAC) in the Entry Clearance Officer’s appeal against the decision of the First-tier Tribunal (IAC). Susana Ferrín, acting as sole Counsel, had successfully represented them before the First-tier Tribunal (IAC), where their linked appeals were allowed on human rights grounds under Article 8 outside the rules. They were instructed by Diana Baxter, Partner at Wesley Gryk Solicitors LLP.

Factual background

The Upper Tribunal refers to the respondents as “the appellants” for continuity purposes. Therefore, they are referred as “the appellants” hereinafter. The appellants are Afghan nationals. They are the parents and sister of the sponsor, a British citizen who had been previously recognised as a refugee in the United Kingdom (paragraphs [3] and [10(e)] of the decision).

They belonged to the Hazara Shia minority in Afghanistan. The first appellant was a surgeon, who had worked for a German NGO and had been a member of a community-led organisation promoting Shia minority rights. He had been abducted and tortured by the Taliban in the past. He suffered from PTSD (paragraphs [10(a)], [10(b)] and [10(j)] of the decision).

The second appellant was teacher, who taught young girls when this was prohibited by the Taliban when they first took power in the 1990s, and an advocate for equal rights of women. She suffered from PTSD, panic attacks, anxiety, high blood pressure, and heart arrhythmia (paragraphs [10(c)] and [10(j)] of the decision).

The third appellant had been unable to complete her university studies due to the Taliban’s ascent to power in 2021. She suffered from PTSD and was unable to afford mental health care.

The first and second appellants were entirely reliant on her care, in conjunction with the remittances provided by the sponsor. The sponsor had been in contact with them since their arrival in Russia and had been responsible for their maintenance (paragraphs [10(d)] and [10(j)] of the decision).

The appellants fled Afghanistan in late March 2022 following arrangements being made with the help of the German NGO with whom the first appellant had worked. They travelled to Russia, given that it was the only country with a functioning consulate in Afghanistan, where they were given temporary protection status, which expired in January 2025 (paragraphs [10(f)]- [10(h)] of the decision).

Between the hearings before First-tier Tribunal and Upper Tribunal, the appellants had been forced to leave Russia and had travelled to Iran, where they were forcibly returned to Afghanistan and remained in hiding (paragraph [28] of the decision).

 

Procedural history

On 14 November 2023, they made entry clearance applications based on the adult dependent relatives provisions of the Immigration Rules (contained in Appendix Adult Dependent Relative to those Rules as of 1 June 2023), which were refused on 14 March 2024. Their linked appeals against the refusals were allowed by the First-tier Tribunal on 15 August 2025. The First-tier Tribunal’s decision is described by the Upper Tribunal as “a conscientious piece of work in respect of what was a difficult case” (at paragraph [8] of the decision; see also paragraphs [3]-[4] and [8]).

The decision under appeal

The First-tier Tribunal found that:

  • Within the rules – All the aspects of the Rules were met except for the fact that the appellants were “in limbo”. They were neither “living in” Afghanistan or Russia, where their position was “so precarious and lacking in intent to remain there long-term” (at paragraph [11] of the decision).
  • Article 8 outside the Rules – There was a “shared family history” (at paragraph [14] of the decision) and there was “effective, real or committed support” (at paragraph [14] of the decision) between the appellants and the sponsor. The appellants could not be reunited with the sponsor in Russia or Afghanistan. Ultimately, this was an exceptional case with compelling reasons where the public interest was outweighed (see paragraphs [12]-[16] of the decision).

Proceedings before the Upper Tribunal

The respondent advanced five grounds of permission, for which permission was granted by the First-tier Tribunal without consideration of whether any of the points raised had in fact been argued before the First-tier Tribunal (see paragraphs [17]-[22] and [48] of the decision).

A detailed Rule 24 response was provided on behalf of the appellants. The respondent failed to comply with the Upper Tribunal’s directions, and in order to avoid “the real possibility of an adjournment, and to her real credit, Ms Baxter of the appellants’ solicitors provided a comprehensive error of law bundle” (at paragraph [26] of the decision), including updating evidence in the event that the case went on to the re-making stage. At the hearing, the Upper Tribunal issued oral directions in respect of the issue of costs, noting that the advanced reason of “an administrative error” for the respondent’s non-compliance with directions was “quite frankly, inadequate” (at paragraph [30] of the decision; see also paragraphs [23]-[27]).

At the hearing, the Upper Tribunal first established that the arguments raised in the grounds had not been advanced before the First-tier Tribunal. The respondent relied on the grounds of appeal and did not make further submissions or replied to the submissions made on behalf of the appellants. At the conclusion of the hearing, the Upper Tribunal announced that the respondent’s appeal was dismissed, with reasons to follow in writing (see paragraphs [32]-[39] of the decision).

The Upper Tribunal written decision is detailed and comprehensive (see paragraphs [40]-[64] of the decision). First, the Upper Tribunal dismisses the appeal on the basis that the arguments advanced had not been raised before the First-tier Tribunal Judge except for one authority cited, Arshad v Secretary of State for the Home Department [2025] EWCA Civ 355, which would not have made a material difference to the outcome (at paragraph [50]). In the reasoning, the Upper Tribunal articulated: “That the grounds of appeal do not reflect the case which had been put to the judge by the respondent is anathema to the approach required by the First-tier Tribunal’s Practice Statement, the authoritative guidance from the Upper Tribunal, and the impermissibility of treating first instance hearings as dress rehearsals.” (at paragraph [46] of the decision).

Second, in the event that the above conclusion was wrong, the Upper Tribunal considered the individual merits of each of the grounds of appeal advanced by the respondent  (see paragraphs [53]-[62] of the decision) noting that: (i) They were not argued before the First-tier Tribunal Judge, (ii) They were not developed in oral submissions; and (iii) The findings of fact had not been challenged (paragraphs [51]-[52] of the decision). Practitioners are encouraged to read it in full.

Salient points in the assessment of family life between adults include:

  • A fact-sensitive assessment is required. There is no test of exceptionality: Rai v Entry Clearance Officer [2017] EWCA Civ 320 (at paragraph [53] of the decision).
  • “Clearly, the refusal of entry clearance would maintain the status quo in any given case: the separation of family members necessarily continues. However, that status quo can be a disproportionate interference with family life (if such family life has been found to exist, as here) where there are exceptional circumstances (…)” (at paragraph [54] of the decision).
  • Jeunesse v The Netherlands (2015) 60 EHRR 17 and Konstantinov v The Netherlands App No. 16351/03 “simply confirm that the boundaries of where a positive obligation may arise do not lend themselves to precise definition; in other words, cases are fact-sensitive” (at paragraph [54] of the decision).
  • Article 8 does not simply allow individuals to circumvent the Rules, and the considerations in section 117B of the 2002 Act must be considered in striking the balance between individual rights and the public interest (paragraph [55] of the decision).
  • “Precariousness is a consideration which fixes to relationships between family members who are together in this country and where one or more of them is here unlawfully or otherwise with limited status” (at paragraph [56] of the decision).
  • “It must be the case that the absence of a statement of policy within the Rules is the corollary of the existence of the Rules: they do not amount to separate considerations, each liable to the attribution of considerable weight against an individual’s case” (at paragraph [58] of the decision).
  • Had the judge “thought that the whole case amounted to little more than a contrived attempt to obtain resettlement through the back door, it might have been open to her to find that family life did not in fact exist at all” (at paragraph [59] of the decision).
  • The finding of family life was the “jurisdictional peg” which allowed the First-tier Tribunal to consider the appellants’ circumstances: Secretary of State for the Home Department v Abbas [2017] EWCA Civ 1393 (at paragraph [61] of the decision).

In dismissing the appeal, the Upper Tribunal strongly urged the respondent to implement the decision expeditiously subject to any onward appeal given that “on any view, the appellants are in a dangerous position in Afghanistan” (at paragraph [64] of the decision). Whilst an Upper Tribunal’s recommendation is not binding, it may be helpful. Since the decision and having overcome additional practical barriers, the family has been reunited.

The decision of the Upper Tribunal (IAC) can be found here:

https://tribunalsdecisions.service.gov.uk/utiac/ui-2025-002298-ors