UI2024005985 -[2025] UKAITUR UI2024005985- (9 April 2025)

Key Facts

Issues

• The case examined whether the Sponsor’s ability to maintain family life in Afghanistan was obstructed by the general circumstances, including systemic discrimination and persecution of women under the Taliban, as outlined in the CPIN. This included evaluating whether these obstacles justified overriding the public interest in immigration control despite the Appellant’s non-compliance with Appendix FM.
• A critical issue was the inconsistency in the timeline of the Appellant and Sponsor’s marriage relative to the Sponsor’s ALES application. The tribunal found the evidence unsatisfactory and lacking transparency, which significantly affected the assessment of proportionality and the credibility of the Appellant’s claims.
• The Upper Tribunal assessed whether the First-tier Tribunal judge erred in law by failing to conduct a structured proportionality assessment under Article 8 ECHR. The key issue was whether the refusal of the Appellant’s family reunion application, due to non-compliance with Appendix FM rules, would result in unjustifiably harsh consequences for the Appellant and Sponsor, particularly considering the Sponsor’s status as a woman in Afghanistan under the Taliban regime and the lack of specific risk evidence for the Appellant.
• The Appellant failed to demonstrate financial independence or English language capability, which are mandatory under Appendix FM. The tribunal emphasized that these requirements, reflecting parliamentary intent, carried substantial weight in the proportionality balance, particularly where the Sponsor’s refugee status was not established.

Holdings

• The Upper Tribunal found that the First-tier Tribunal judge materially erred in law by failing to consider insurmountable obstacles to family life in Afghanistan for women under the Taliban regime. This error stemmed from the judge's inadequate assessment of proportionality under Article 8 ECHR, particularly overlooking background evidence from the CPIN and UN reports on systemic gender persecution. The tribunal emphasized that while the Sponsor's general risk as a woman in Afghanistan is significant, the Appellant did not establish specific risk to himself, and the evidence regarding the ALES application lacked transparency.
• The Upper Tribunal decided to re-make the appeal decision rather than remit it for a re-hearing. This was based on the absence of new evidence, procedural fairness, and the narrow legal issue (proportionality) requiring reassessment. The tribunal affirmed the First-tier Tribunal's findings on evidence gaps and the Appellant's inability to meet Appendix FM requirements, including financial independence and English language proficiency. They concluded that the decision would not result in unjustifiably harsh consequences for the Appellant or Sponsor.

Remedies

Legal Principles

Precedent Name

• AEB v SSHD
• Lal v SSHD
• Al Hassan (Article 8, Entry Clearance, KF (Syria)
• R v SSHD ex parte Razgar
• Abbas
• Agyarko v SSHD

Cited Statute

• European Convention on Human Rights, Article 8
• Home Office Guidance on Family Reunion
• Immigration Rules, Appendix FM
• Immigration Acts
• Nationality, Immigration and Asylum Act 2002
• Tribunal (Upper Tribunal) Procedure Rules 2008

Judge Name

• McWilliam
• Davies

Passage Text

• 19. It is accepted that the Appellant and the Sponsor share family life and Article 8(1) of ECHR is engaged. It follows that the determinative issue is proportionality. Our starting point when remaking, is that there are insurmountable obstacles to family life in Afghanistan following from the general circumstances in Afghanistan for women, as supported by the CPIN. While this is a significant factor in favour of the Applicant, it is not determinative of this application for entry clearance. In support of the Applicant's case we accept that the Sponsor is depressed and separation from her husband exacerbates this. In support of the Applicant's case the Sponsor submitted a letter from Brunton Place Surgery from the Sponsor's doctor supporting that she was registered at the surgery on 21 July 2023 and that she has a history of anxiety and depression. It is said that her mental health has worsened because of the situation in which she and her husband find themselves. There is no reason not to accept that the Sponsor has tried to seek employment. In assessing proportionality we have not exclusively focused on the Sponsor's rights: Abbas [2017] EWCA Civ 1393. We have considered the impact of the decision on the Applicant. There is no witness statement from him, however, we accept that he will be very disappointed by the separation from his wife. We take into account that whatever the reason why the Sponsor was permitted to come to the UK with her father, it would be wrong to say that there was an element of choice bearing in mind the situation for women in Afghanistan.
• 14. We agree that the judge materially erred in the assessment of proportionality. He did not consider insurmountable obstacles to family life which was relevant to the proportionality assessment... We have considered the Country Policy and Information Note: Afghanistan: Fear of the Taliban version 4.0 August 2024 ("the CPIN"). At para 3.1.2 of the guidance it is stated that women are likely to be at risk from the Taliban. At para 3.7.1 it is said that women and girls are subject to widespread and systematic discrimination which is general amounts to persecution. We have considered para 14 of the guidance which cites a 2023 report by the UN Rapporteur which talks of a widespread, systematic and all-encompassing attack on the rights of women and girls and that the large-scale violations of women and girls' fundamental rights abetted by the Taliban's discriminatory and misogynistic policies and harsh enforcement methods constitutes gender persecution and an institutional framework of gender apartheid at paras 14.1.2 and 14.1.3.
• 27. The appeal is dismissed under Article 8 ECHR.