Appellate restraint in Article 8 “family life” findings: Upper Tribunal cannot set aside an FTT decision absent a material error of law

Case: Entry Clearance Officer v BB & Ors
Citation: [2026] EWCA Civ 973
Court: Court of Appeal (Civil Division)
Date: 31 July 2026
Judges: Lord Justice Singh (giving the lead judgment), Lord Justice Baker, Lord Justice Newey

1. Introduction

This appeal concerns the threshold question of when “family life” exists between adults for the purposes of Article 8 ECHR in an immigration entry-clearance context, and—critically—how far the Upper Tribunal (“UT”) may go in interfering with the fact-finding and evaluative assessment of the First-tier Tribunal (“FTT”).

The respondents (an Afghan family: the sponsor’s mother and sisters, plus two young relatives) sought entry clearance to join their sponsor (“S”), a recognised refugee in the United Kingdom. The Entry Clearance Officer (“ECO”) refused the applications, concluding Article 8 was not engaged because there was no relevant “family life”. The FTT dismissed the family’s appeals on the same basis. The UT set the FTT decision aside for error of law, then remade the decision allowing the appeals on human-rights grounds.

The Court of Appeal allowed the ECO’s appeal, holding that the UT was not entitled to set aside the FTT decision. The consequence was that the UT should never have proceeded to remake the decision; the FTT’s dismissal was reinstated.

2. Summary of the Judgment

  • The central question on appeal was whether the UT lawfully set aside the FTT decision under its “error of law” jurisdiction (Tribunals, Courts and Enforcement Act 2007, ss. 11–12).
  • The Court held the FTT gave detailed reasons and applied the then-understood approach to “family life” between adults; the UT’s criticism amounted to an impermissible re-evaluation of the facts and a misreading of the FTT’s reasoning.
  • The UT wrongly concluded the FTT had searched for “exceptionality” and that the denial of family life was “irrational”. Proper appellate restraint required the UT to leave the FTT’s evaluative conclusion undisturbed.
  • Importantly, the Court noted an intervening development: in IA and others v Secretary of State for the Home Department [2025] EWCA Civ 1516; [2026] 2 WLR 1001 the Court of Appeal disapproved the “real, committed or effective support” formulation derived from Kugathas v Secretary of State for the Home Department [2003] EWCA Civ 31; [2003] INLR 170. The correct test is “additional elements of dependence” beyond normal emotional ties.
  • Any error by the FTT in using the (now disapproved) more generous test was not material to the family’s case; if anything, it favoured them. The UT therefore had no basis to intervene.
  • The appeal was allowed on Ground 1 (ultra vires / improper UT interference). Grounds 2 and 3 (family life engagement and proportionality) did not arise for decision.

3. Analysis

3.1 Precedents cited and their role

(A) The “family life” threshold between adults

  • Kugathas v Secretary of State for the Home Department [2003] EWCA Civ 31; [2003] INLR 170
    The FTT relied on passages often cited in tribunal practice: the idea that for adult relationships Article 8 “family life” requires “something more” than ordinary emotional ties, sometimes expressed as “real, committed or effective support” (Sedley LJ) and with Arden LJ’s observation that family life between adult child and parent/siblings is not presumed.
    In this appeal, the Court of Appeal emphasised that those dicta have since been disapproved by IA. That matters not because it assists the respondents, but because it underlines that the FTT’s approach—if wrong—was wrong in a way that did not prejudice them.
  • Singh [2015] EWCA Civ 630
    Cited by the FTT for the orthodox proposition that love and affection between adult relatives is not enough; “there has to be something more”. The Court of Appeal treated this as part of the background against which the FTT gave an evaluative decision open to it.
  • Rai v Entry Clearance Officer, New Delhi [2017] EWCA Civ 320
    Mentioned to explain the tribunal line of authority that had consistently followed the Kugathas “real, committed or effective support” approach until IA.
  • IA and others v Secretary of State for the Home Department [2025] EWCA Civ 1516; [2026] 2 WLR 1001
    This is the key intervening authority. It re-centres the test on “additional elements of dependence” (not mere support), while confirming that “exclusive or complete dependency is not required”, yet “dependency is more than the existence of support, even if that support is qualified by the adjectives real, committed or effective.”
    In Entry Clearance Officer v BB & Ors, the Court of Appeal did not need to re-apply IA to the facts because it disposed of the case on UT jurisdiction. But it used IA to demonstrate that the UT’s intervention could not be justified by pointing to an FTT legal misdirection: the FTT’s test was (if anything) more favourable to the respondents than the correct test.

(B) The Upper Tribunal’s “error of law” jurisdiction and appellate restraint

  • Ullah v Secretary of State for the Home Department [2024] EWCA Civ 201; [2024] 1 WLR 4055
    The Court treated Ullah as the controlling “toolkit” for appellate restraint: the FTT is the specialist fact-finding tribunal; the UT must not intervene merely because it would have evaluated matters differently; reasons should be read fairly and as a whole; and “assessment” permits reasonable disagreement without legal error.
  • The Ullah summary itself drew on a line of authorities reinforcing restraint: The Court’s reasoning is an application of these principles: the UT’s approach was characterised as “nit-picking” and substituting its own evaluative view for that of the FTT.

(C) Article 8 structure and proportionality

  • R (Razgar) v Secretary of State for the Home Department [2004] UKHL 27; [2004] 2 AC 368
    The UT referenced the “Razgar questions” as the staged approach: engagement of Article 8(1) first; only then justification and proportionality under Article 8(2). The Court of Appeal’s decision reinforces that sequencing: if Article 8(1) is not engaged on the FTT’s lawful findings, proportionality is never reached.
  • The respondents relied on broader statements about family life in: The Court held these were of limited assistance because they were either general observations or factually concerned the “core” parent–minor-child relationship or very different family contexts. The adult-dependency line in Kugathas/IA was the relevant frame.

(D) Strasbourg authorities mentioned by the UT

  • Kumari v The Netherlands (44051/20) and Martinez Alvorado v The Netherlands (4470/21)
    Not analysed by the Court of Appeal; they were simply noted as recent ECtHR decisions the UT had considered when remaking the decision.
  • Tuquabo-Tekle and others v The Netherlands [2006] 1 FLR 798 and Şen v The Netherlands [2003] 36 EHRR 7
    Cited by the respondents, but the Court found them not materially helpful because they addressed different factual and relational settings (not the contested adult “family life” question at the heart of this appeal).

3.2 The Court’s legal reasoning

(A) The dispositive issue: UT jurisdiction to set aside the FTT

The Court framed the case as turning on a gateway question: even though the UT’s “set aside” decision is appealed only after the UT remakes the case, the Court must first decide whether the UT was entitled to set aside the FTT at all. If not, the UT’s remade proportionality assessment is legally irrelevant because the UT should never have embarked on it.

(B) Reading the FTT decision “fairly and as a whole”

The Court rejected the UT’s analysis that the FTT misunderstood “normal” or searched for “exceptionality”. On the Court’s reading, the FTT:

  • identified the correct first-stage question (existence of Article 8 “family life”);
  • acknowledged and accepted significant psychiatric evidence about the sponsor’s mental health and the emotional importance of reunion;
  • distinguished between (i) the intensity of feelings and contact and (ii) the legal requirement for “something more” than ordinary emotional ties between adults;
  • considered financial dependency and found none;
  • evaluated the practical limitations created by living in different countries;
  • gave reasons why regular calls, messaging, and two visits did not cross the threshold into the relevant legal concept of “family life” at the date of decision.

The Court regarded these as classic evaluative conclusions open to a specialist fact-finding tribunal. The UT’s contrary view was characterised as an impermissible substitution of its own evaluation.

(C) Irrationality/perversity: a high threshold not met

The UT had effectively concluded that the FTT’s finding was irrational. The Court disagreed: on the evidence, more than one conclusion was reasonably available. The Court’s emphasis on the FTT’s advantage in hearing oral evidence (from the sponsor and the therapist) further supported restraint.

(D) Materiality of legal error after IA

The Court’s handling of the intervening authority is notable. It accepted that the FTT applied a test derived from Kugathas that IA has since disapproved; however, it held any such misdirection was not “material” because the disapproved test was more generous to the respondents than the correct “additional elements of dependence” test. In other words, even if the FTT’s legal framework was imperfect, it did not disadvantage the respondents in a way that could justify setting aside.

3.3 Impact

(A) Practical consequences for Article 8 adult family-life claims

  • The judgment reinforces that many Article 8 claims will rise or fall at the engagement stage where relationships are between adults (e.g., adult child–parent; adult siblings). Tribunals must ask whether the evidence shows “additional elements of dependence” (per IA), not merely closeness, frequent contact, distress, or the anticipated benefit of reunion.
  • It also underscores a structural point: medical evidence showing that separation worsens mental health may be powerful on proportionality, but it does not automatically establish the existence of “family life” between adults for Article 8(1). Tribunals may treat engagement and proportionality as distinct questions, as the FTT did.

(B) Institutional consequences: policing UT intervention

  • The Court’s main contribution is institutional: it tightens the discipline on the UT’s error-of-law function. Even where the UT strongly disagrees with the FTT’s evaluation, it must not “textually” pick apart language or re-label an evaluative conclusion as a misdirection unless the reasoning truly discloses legal error.
  • The decision highlights “materiality” as a constraint on setting aside: an asserted misdirection is not enough; it must have mattered to the outcome. Where the FTT’s approach is more generous to an appellant than the correct approach, it will be difficult to characterise that as a material error warranting intervention (absent some other legal flaw).

4. Complex concepts simplified

  • “Family life” (Article 8(1)): A legal concept, not a synonym for affection or kinship. For adult relationships, “family life” usually requires proof of something beyond ordinary emotional ties.
  • “Additional elements of dependence”: After IA, the focus is on dependence (not necessarily complete), which is more than “support”. A person may receive “support” from relatives without being “dependent” in the legal sense.
  • Engagement vs proportionality: First ask whether Article 8(1) is engaged (is there protected “family life”?). Only if yes do you ask whether the interference is justified and proportionate under Article 8(2) (the “Razgar questions”).
  • Error of law vs disagreement on facts: The UT can set aside an FTT decision only for legal error—not just because it would have weighed evidence differently.
  • Irrationality/perversity: A very high standard—essentially that no reasonable tribunal could have reached the conclusion on the evidence. The Court held that standard was not met here.
  • Material error: A legal error that could have affected the outcome. If an alleged misdirection did not (or could not) disadvantage the party complaining, it may be immaterial.

5. Conclusion

Entry Clearance Officer v BB & Ors is less a merits decision about Afghan family reunion than a firm restatement of appellate boundaries in immigration adjudication. The Court of Appeal held that the UT exceeded its lawful role by setting aside a detailed FTT decision on the existence of adult “family life” under Article 8. The judgment reinforces (i) the post-IA emphasis on “additional elements of dependence” for adult relationships, and (ii) the requirement of disciplined appellate restraint: evaluative findings by the FTT—especially on fact-sensitive Article 8 engagement—are not to be displaced absent a genuine, material error of law.