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Entry Clearance Officer v BB & Ors
Factual and Procedural Background
The appeal concerned refusal of entry clearance to Afghan family members who sought to join their Sponsor in the United Kingdom under Appendix Family Reunion (Sponsor with Protection), on the basis that Article 8 was not engaged because no relevant family life existed. The FTT dismissed the appeals, the UT set that decision aside in an error of law decision, and the UT then allowed the appeals on human rights grounds after remaking the case. The ECO appealed to the Court of Appeal with permission. [Para 28][Para 38][Para 39][Para 42][Para 43][Para 25]
The family relationship in issue was between the Sponsor and his parents, three sisters, and two younger children of one sister; the Sponsor’s father died while the appeal was pending. The Sponsor fled Afghanistan in late 2015 or early 2016, later obtained refugee status and then indefinite leave to remain, and he has serious mental health conditions including PTSD, severe depressive disorder, and generalised anxiety disorder. He had visited the family in Turkey twice and maintained regular contact with them from 2019 onwards. [Para 29][Para 30][Para 32][Para 33][Para 34][Para 35][Para 37]
Legal Issues Presented
- Whether the UT was entitled to set aside the FTT’s finding that Article 8 was not engaged because family life had not been established between the Sponsor and the Respondents. [Para 42][Para 43][Para 124][Para 125]
- What the correct test is for “family life” between adult relatives, particularly in light of the Court of Appeal’s later decision in IA. [Para 116][Para 118][Para 119][Para 120]
- If Article 8 was engaged, whether the refusal of entry clearance was a disproportionate interference, although that issue would only arise if Ground 1 failed. [Para 126][Para 142][Para 225]
Arguments of the Parties
Appellant's Arguments
- The UT was not entitled to interfere with the FTT’s carefully reasoned conclusion that Article 8 was not engaged. [Para 128][Para 130][Para 131][Para 132][Para 133]
- The UT over-read the FTT’s reasons and wrongly treated the FTT as having demanded “exceptionality” or an unduly high threshold. [Para 129][Para 147][Para 148]
- The UT applied the wrong legal test for adult family life, because the correct test is dependency, not simply “real, effective and committed support.” [Para 134][Para 135][Para 136][Para 138][Para 140]
- The proportionality analysis was also said to be flawed, but that point became unnecessary if Ground 1 succeeded. [Para 141][Para 142]
Respondents' Arguments
- The UT was right to conclude that the FTT had misdirected itself by looking for an exceptional level of attachment and by comparing the family to others reunited in similar circumstances. [Para 145][Para 146][Para 148]
- The evidence of medical and social support showed more than ordinary emotional ties and was said to justify the finding that Article 8 was engaged. [Para 149][Para 151][Para 160]
- In the alternative, the Respondents said the UT’s decisions should be upheld because the correct test was effectively applied, or because any error was immaterial. [Para 153][Para 154][Para 155]
- They also argued that the FTT should itself have been found to have erred, and that the UT should expressly have found “additional elements of dependence.” [Para 155][Para 156][Para 157][Para 158][Para 159]
Table of Precedents Cited
| Precedent | Rule or Principle Cited For | Application by the Court |
|---|---|---|
| Kugathas v Secretary of State for the Home Department [2003] EWCA Civ 31; [2003] INLR 170 | Adult relatives do not automatically have family life; something more than ordinary emotional ties is required. [Para 54][Para 55][Para 56][Para 58][Para 60] | The FTT relied on it, but the Court held that the UT should not have treated the FTT’s use of this older formulation as a legal error warranting intervention. [Para 116][Para 117][Para 118][Para 119][Para 120][Para 194][Para 196][Para 220] |
| Singh [2015] EWCA Civ 630 | The existence of family life depends on the facts; love and affection alone are insufficient. [Para 61] | The FTT used it alongside Kugathas as part of the domestic framework for assessing adult family life. [Para 52][Para 53][Para 61][Para 62] |
| R (Razgar) v Secretary of State for the Home Department [2004] UKHL 27; [2004] 2 AC 368 | Sets out the questions to be considered once Article 8 is engaged, including proportionality. [Para 106] | The UT referred to the “Razgar questions” after finding family life existed. [Para 103][Para 106] |
| IA and others v Secretary of State for the Home Department [2025] EWCA Civ 1516; [2026] 2 WLR 1001 | Clarifies that family life between adults requires additional elements of dependency; “support” alone is not the test. [Para 118][Para 119][Para 120] | The Court treated IA as the controlling authority and held that the FTT/UT had used a more generous test than the correct one, so any error was not material against the ECO. [Para 116][Para 118][Para 119][Para 120][Para 218][Para 223] |
| Kumari v The Netherlands (44051/20) | Recent Strasbourg authority on adult family life. [Para 110] | The UT noted it but remained satisfied with its earlier conclusion on family life. [Para 109][Para 110] |
| Martinez Alvorado v The Netherlands (4470/21) | Recent Strasbourg authority on adult family life. [Para 110] | The UT noted it alongside Kumari, but it did not alter the result in this case. [Para 109][Para 110] |
| EM (Lebanon) v Secretary of State for the Home Department [2008] UKHL 64; [2009] 1 AC 1198 | General observations about the importance and nature of family life under Article 8. [Para 164][Para 168][Para 170] | The Court said those observations were not materially helpful because the real issue was adult-to-adult family life on the facts of this case. [Para 172] |
| M v Secretary of State for Work and Pensions [2006] UKHL 11; [2006] 2 AC 91 | Describes family life as involving love, trust, confidence, mutual dependence, and social intercourse. [Para 164] | The Court treated it as part of the general exposition in EM (Lebanon), but not as decisive in the present adult family-life dispute. [Para 162][Para 172] |
| Huang v Secretary of State for the Home Department [2007] UKHL 11; [2007] 2 AC 167 | Families vary and Article 8 requires attention to the facts of the particular case. [Para 165][Para 166] | The Court accepted the general point but said it did not resolve the specific adult-family issue here. [Para 172] |
| AP (India) v Secretary of State for the Home Department [2015] EWCA Civ 89 | Adult student children may remain an important part of the family unit until they “fly the nest.” [Para 173][Para 174] | The Court held it was not materially analogous because this case involved a traumatic rupture and adult relatives, not a gradual transition from dependence. [Para 174][Para 175] |
| Tuquabo-Tekle and others v The Netherlands [2006] 1 FLR 798 | Parents who leave children behind are not necessarily taken to have abandoned future family reunion. [Para 176][Para 177] | The Court held it was not materially helpful because it did not concern adult-to-adult family life. [Para 178][Para 179] |
| Şen v The Netherlands [2003] 36 EHRR 7 | Referenced in Tuquabo-Tekle on future family reunion. [Para 176] | Used only as a supporting Strasbourg authority in the discussion of Tuquabo-Tekle. [Para 176] |
| Ullah v Secretary of State for the Home Department [2024] EWCA Civ 201; [2024] 1 WLR 4055 | The UT’s jurisdiction is limited to errors of law, and appellate restraint is required when reviewing FTT fact-finding. [Para 183][Para 184][Para 185][Para 186][Para 187][Para 188][Para 189][Para 192][Para 193] | The Court relied on Ullah to hold that the UT had improperly interfered with a fact-sensitive evaluative judgment that was open to the FTT. [Para 194][Para 195][Para 221] |
| AH (Sudan) v Secretary of State for the Home Department [2008] AC 678 | The UT should not find an error of law merely because it would have reached a different factual conclusion. [Para 185] | The Court cited it as part of the restraint owed to specialist fact-finding by the FTT. [Para 183][Para 185][Para 194] |
| MA (Somalia) v Secretary of State for the Home Department [2011] 2 All ER 65 | The UT should be slow to infer that a point was overlooked where it was not expressly mentioned. [Para 186] | The Court used it to reinforce that the FTT’s reasoning had to be read fairly and as a whole. [Para 184][Para 194][Para 195] |
| R (Jones) v First Tier Tribunal (Social Entitlement Chamber) [2013] 2 AC 48 | The UT should not assume misdirection simply because every step in the FTT’s reasoning is not set out. [Para 187] | The Court relied on that principle when rejecting the UT’s “nit-picking” approach to the FTT’s reasons. [Para 187][Para 194] |
| UT (Sri Lanka) v The Secretary of State for the Home Department [2019] EWCA Civ 1095 | The issues and basis of the FTT’s decision may be expressed directly or by inference. [Para 188] | The Court used it to support reading the FTT’s judgment as a whole rather than isolating selected phrases. [Para 184][Para 194][Para 195] |
| AA (Nigeria) v Secretary of State for the Home Department [2020] 4 WLR 145 | FTT judges are presumed to know and apply the relevant authorities unless the language shows otherwise. [Para 189][Para 191] | The Court relied on this to reject the suggestion that the FTT had disregarded the governing law. [Para 191][Para 194] |
| MM (Lebanon) v Secretary of State for the Home Department [2017] 1 WLR 771 | A tribunal may reach a generous factual conclusion without committing an error of law. [Para 192][Para 193] | The Court used this to explain why the UT should not have treated the FTT’s evaluative conclusion as unlawful merely because it was generous to the ECO’s opponents. [Para 192][Para 193][Para 221] |
| Rai v Entry Clearance Officer, New Delhi [2017] EWCA Civ 320 | Part of the line of authority followed by the tribunals before IA. [Para 116] | Referred to as an example of the pre-IA approach that had been consistently applied below. [Para 116] |
Court's Reasoning and Analysis
The Court began from the principle that the UT could only intervene if the FTT had made an error of law, and it stressed that appellate restraint is especially important where the FTT has made a specialist factual evaluation on oral and expert evidence. [Para 182][Para 183][Para 184][Para 185][Para 187][Para 192][Para 193]
The Court disagreed with the UT’s view that the FTT had searched for “exceptionality” or applied an unduly strict notion of what counts as “normal” family life, holding instead that the FTT had actually asked the correct factual question and had reasoned through the evidence in detail. [Para 194][Para 195][Para 196][Para 198][Para 201][Para 203][Para 205][Para 207][Para 211][Para 214][Para 217]
The Court treated the FTT’s findings on the loss of contact after the Sponsor left Afghanistan, the absence of financial dependency, the nature of the later contact, and the limited significance of the family’s joy at reunion as permissible evaluative conclusions on the evidence. [Para 200][Para 201][Para 202][Para 203][Para 204][Para 205][Para 207][Para 209][Para 211][Para 213][Para 214][Para 215][Para 216]
The Court also held that the FTT’s reliance on the older Kugathas line of authority did not make its decision unlawful, because the FTT had in any event applied a test that was more generous to the Respondents than the correct dependency-based test later clarified in IA. [Para 218][Para 219][Para 220][Para 223]
For that reason, the Court concluded that the UT should not have set aside the FTT’s decision, and once Ground 1 succeeded there was no need to consider the UT’s remade decision or the proportionality challenge. [Para 221][Para 222][Para 223][Para 224]
Holding and Implications
Appeal allowed. The Court allowed the ECO’s appeal against the UT’s error of law decision and reinstated the FTT’s dismissal of the Respondents’ appeals. It held that the UT should never have embarked on remaking the case, so Grounds 2 and 3 did not arise. The direct consequence was that the refusal decisions stood, and no separate new precedent was set beyond the application of existing authority on appellate restraint and adult family life. [Para 225][Para 226][Para 228]
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