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

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IN THE UPPER TRIBUNAL

IMMIGRATION AND ASYLUM CHAMBER

 

Case No: UI-2024-002736, UI-2024-002737

First-tier Tribunal No: HU/53372/2023, HU/53427/2023

 

THE IMMIGRATION ACTS

 

Decision and Reasons Issued:

On 2 ^nd of April 2025

 

Before

 

DEPUTY UPPER TRIBUNAL JUDGE MALIK KC

 

Between

 

FATMA ELMETWALY IBRAHIM ELSAADNY

HAGAR Abdelmonem Abdelmoaty MA HELAL

(ANONYMITY DIRECTION NOT made)

Appellants

and

 

ENTRY CLEARANCE OFFICER

Respondent

 

Representation

 

For the Appellant: Mr Paul Draycott, Counsel, instructed by Pristine Law Solicitors

For the Respondent: Mr Peter Lawson, Senior Presenting Officer

Heard at Field House on 19 February 2025

DECISION AND REASONS

Introduction

1.              This is an appeal against the decision of First-tier Tribunal Judge Clarkson ("the Judge"), promulgated on 18 September 2023. In that decision, the Judge dismissed the appeals brought by Fatima Elsaadny ("Mrs Elsaadny") and Hagar Helal ("Hagar") against the refusals of their applications for entry clearance to the United Kingdom.

Factual background

2.              Mrs Elsaadny is a citizen of Egypt, born on 29 February 1980. She married Abdelmonem Helal ("Mr Helal"), who is a British citizen present and settled in the United Kingdom, on 9 February 2003. They have three children, namely, Ali Helal ("Ali"), born on 22 December 2003, Hanan Helal ("Hanan"), born on 1 February 2006, and Hagar, born on 1 December 2011. While Ali and Hanan are British citizens, Hagar remains a citizen of Egypt. Mr Helal, Ali, and Hanan reside in the United Kingdom, while Mrs Elsaadny and Hagar reside in Egypt. Mrs Elsaadny and Hagar applied for entry clearance to the United Kingdom to join Mr Helal, Ali, and Hanan on 29 September 2022. The Entry Clearance Officer ("ECO") refused their applications on 28 January 2023 on the grounds that Mrs Elsaadny did not meet the financial and English language requirements in Appendix FM to the Immigration Rules. The Judge heard their appeals from the ECO's decision on 8 September 2023. The Judge found that while the financial requirement was satisfied, the English language requirement was not. The Judge accepted that Article 8 (the right to respect for family life) was engaged but held that the ECO's decisions were justified and proportionate. The Judge accordingly dismissed the appeals by a decision promulgated on 18 September 2023. Permission to appeal was granted on 22 August 2024.

Grounds of appeal

3.              The grounds of appeal raise four overlapping points. First, the Judge failed to recognise her full jurisdiction to determine the appeals. Second, the Judge failed to recognise that Hagar satisfied all relevant requirements in Appendix FM to the Immigration Rules and her appeal should have been allowed. Third, the Judge erred in law as to the welfare of the children. Fourth, the Judge erred in finding that there were no exceptional circumstances as to the English language requirement.

Submissions

4.              I am grateful to Mr Paul Draycott, representing the Appellant, and Mr Peter Lawson, representing the ECO, for their assistance and clear submissions. Mr Draycott expanded on the pleaded grounds in his oral submissions. He invited me to allow the appeal and set aside the Judge's decision. Mr Lawson resisted the appeal and submitted that the Judge made no material error of law. He invited me to dismiss the appeal and uphold the Judge's decision.

Discussion

5.              The Judge's decision contains two unfortunate errors. At [27], the Judge referred to "Mr Hussaini" and suggested that there was a genuine and subsisting relationship between him and Mrs Elsaadny. No such person exists. Mrs Elsaadny's genuine and subsisting relationship is with Mr Helal. At [2], the Judge incorrectly stated that Mr Helal resides in the United Kingdom with his "sons". Ali is his only son, while Hanan and Hagar are his daughters. However, the fundamental flaw in the Judge's analysis is her approach to the welfare of the children. In my judgment, this is unsustainable in law.

6.              The Judge addressed proportionality under Article 8 at paragraphs [28]-[31]. The Judge cited various authorities and facts before concluding at [31]:

"I am satisfied that the Respondent's refusal of entry clearance in this case does not amount to a disproportionate interference with the Article 8 rights of the Appellants and the Sponsor and that the factors raised by the Appellant's do not outweigh the public interest."

7.              Having concluded that the interference with Article 8 was proportionate, the Judge then considered Hagar's welfare. She addressed this separately at [32].

8.              It is well-settled, as endorsed by the Supreme Court in Zoumbas v Secretary of State for the Home Department [2013] UKSC 74, [2013] WLR 3690, at [10], that the best interests of a child are an integral part of the proportionality assessment under Article 8. In making that assessment, the best interests of a child must be a primary consideration. Although these interests can be outweighed by the cumulative effect of other considerations, no other factor can be treated as inherently more significant. It is important to have a clear idea of a child's circumstances and of what is in a child's best interest before one asks oneself whether that interest is outweighed by the force of other considerations. In Kaur (children's best interests / public interest interface) [2017] UKUT 14 (IAC), at [3], the Upper Tribunal, applying these principles, held that the best interests assessment should normally be carried out at the beginning of the balancing exercise.

9.              In the present case, the Judge did not treat the best interests of Hagar as an integral part of the proportionality assessment. As noted above, the Judge first concluded that the ECO's decisions were proportionate before turning her attention to the best interests of Hagar. The Judge considered Hagar's welfare separately from the proportionality assessment.

10.          The Judge also erred in her approach to the best interests of Hanan. The evidence before the Judge included a witness statement from Hanan. In her statement, Hanan explained her need to be reunited with her mother. She carefully expressed her feelings and outlined how the separation from her mother has impacted her life. The Judge did not properly engage with this evidence. There is no indication that the Judge treated Hanan's best interests as a primary consideration in the proportionality assessment. The Judge's reasoning fails to demonstrate that she understood the children's circumstances or what is in their best interests.

11.          It follows that the Judge's assessment of proportionality is vitiated by an error of law and cannot stand.

12.          There is no merit in the submission that the Judge failed to recognise she had full jurisdiction to determine the appeals. At [20], the Judge stated she had "no jurisdiction to hear an appeal against the substantive decision". This sentence, taken in isolation, conveys the wrong message. However, immediately following that sentence, the Judge stated she would address the application of the Immigration Rules within the proportionality assessment. The Judge made no error regarding her jurisdiction. Furthermore, I do not accept that the Judge was obliged to allow Hagar's appeal on the basis that she met all the requirements in Appendix FM to the Immigration Rules. It is not immediately clear how Hagar could meet the relationship requirements in Appendix FM without Mrs Elsaadny. However, I do not need to decide this question at this stage.

13.          I entirely accept that I should not rush to find an error of law in the Judge's decision merely because I might have reached a different conclusion on the facts or expressed it differently. Where a relevant point is not expressly mentioned, it does not necessarily mean that it has been disregarded altogether. It should not be assumed too readily that a judge erred in law just because not every step in the reasoning is fully set out. Experienced judges in this specialised field are to be taken to be aware of the relevant authorities and to be seeking to apply them without needing to refer to them specifically. In this instance, for the reasons outlined above, I am satisfied that the Judge's decision is wrong in law.

Conclusion

14.          For all these reasons, I find that the Judge erred on a point of law in dismissing the Appellant's appeal, and the error was material to the outcome. I set aside the Judge's decision but preserve three unchallenged findings, namely, (a) the financial requirement has been met, (b) the English language requirement has not been met, and (c) the family life limb of Article 8 is engaged.

15.          Having regard to paragraph 7.2 of the Senior President's Practice Statement for the Immigration and Asylum Chambers and the extent of the fact-finding required, I remit the appeal to the First-tier Tribunal to be heard afresh by a judge other than Judge Clarkson. It will be for the First-tier Tribunal to decide whether (a) Hagar can qualify without Mrs Elsaadny, (b) there are exceptional circumstances relating to Mrs Elsaadny's inability to meet the English language requirement, and (c) the interference with Article 8 is proportionate.

Notice of decision

16.          The First-tier Tribunal's decision is set aside, and the appeal is remitted to the First-tier Tribunal for a fresh hearing.

Anonymity

17.          I consider that an anonymity order is not justified in the circumstances of this case, having regard to the Presidential Guidance Note No 2 of 2022, Anonymity Orders and Hearing in Private, and the overriding objective. I make no order under Rule 14(1) of the Tribunal Procedure (Upper Tribunal) Rules 2008.

 

 

Zane Malik KC

Deputy Judge of Upper Tribunal

Immigration and Asylum Chamber

 

Date: 28 March 2025