Jakir Ahmed v The Secretary of State for the Home Department

This an appeal against a decision of the Upper Tribunal dismissing an appeal from a decision of the First-tier Tribunal. That tribunal had, in turn, dismissed an appeal by the appellant, Jakir Ahmed, against a decision of the respondent, the Secretary of State for the Home Department, refusing leave to remain. At the time of the tribunal proceedings, the appellant had also made an application in the family court seeking an order for contact with his daughter. The principal issue in this appeal concerns the proper approach of the First-tier Tribunal to determining an appeal when there are proceedings in the family court running concurrently. In particular, the appeal raises the question of whether an appellant is entitled to be allowed to remain in the United Kingdom at least until the conclusion of the family court proceedings.

In brief, the appellant had initially come to the United Kingdom with leave to enter and remain until 2 October 2006. The appellant thereafter remained unlawfully in the country for about 16 years. He then married a British national. On 28 March 2020, he was granted leave to remain in the United Kingdom until 6 February 2023. The appellant and his wife had a child in June 2020. They separated in August 2021 and the appellant went to live in York (the wife and child remained in London). On 26 July 2022, the appellant applied to the East London family court for, amongst other things, a child arrangements order which, if granted, could provide for the appellant to have contact with his child.

On 30 December 2022 the appellant applied for leave to remain in the United Kingdom as the parent of a British-national child. That application was refused. The respondent considered that the appellant did not meet the requirements of the Immigration Rules as he had not provided evidence that he had direct access to his child or that he was taking an active role in the child’s upbringing. Nor had the appellant demonstrated that refusal of leave to remain would be a breach of his right to respect for his family and private life under Article 8 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”).

The appellant appealed against that decision to the First-tier Tribunal. At the time that the First-tier Tribunal came to decide the appeal, the appellant, therefore, had two sets of proceedings outstanding: the immigration appeal, and the application in the family court for a contact order. A principal issue for the First-tier Tribunal to decide was whether the appellant had a right derived from Article 8 of the Convention to remain in the United Kingdom at least until the conclusion of the family court proceedings. The First-tier Tribunal determined that he did not have such a right as it believed the family court proceedings had been instituted to delay or frustrate the immigration process and not to promote the child’s welfare. It reached that conclusion because, essentially, the appellant had not had any direct contact with his child in the three years since he had left the family home and had shown little interest in or had contact with the child, he lacked commitment to the progress of the family court proceedings, and the evidence available did not point to the welfare of the child requiring the issue of contact to be determined prior to the resolution of the immigration appeal. The Upper Tribunal dismissed an appeal against that decision on 19 February 2025.

The appellant appealed against the decision of the Upper Tribunal, contending that it had erred in upholding the First-tier Tribunal decision as that decision was wrong on three grounds:

The appellant also sought permission to introduce new evidence which consisted of orders of the family court made on 4 April 2025 and 9 October 2025. Those orders provided, amongst other things, for there to be supervised contact between the appellant and his daughter, that contact to be arranged and paid for by the appellant and for contact notes to be produced. The appellant did not seek to adduce any evidence of actual contact with the child in pursuance of those orders. There is no admissible evidence before this court as to whether or not the appellant has had contact with his daughter and, if so, when, or as to the frequency and duration of any such contact or the outcome of the supervised contact. Mr Malik KC, for the appellant, accepted that the evidence would not assist in determining the question of whether the First-tier Tribunal (or the Upper Tribunal) had erred. He sought to adduce the orders as evidence of the potential for a conflict between the decisions of immigration tribunals and family courts. Mr Pilgerstorfer KC, for the respondent, objected to the admission of the new evidence and submitted that it did not meet the test for admissibility of evidence on an appeal and presented a partial or incomplete picture.

I have read the evidence. I would refuse permission to adduce the evidence. That evidence is not necessary to establish the proposition that family courts may make different decisions from immigration tribunals. The evidence, as Mr Malik accepted, does not assist in the resolution of this appeal.

Article 8(1) of the Convention provides that “Everyone has the right to respect for his private and family life, his home and his correspondence”. Article 8(2) provides that there will be no interference with that right by a public body unless it is necessary for one of a number of specified reasons.

The operation of Article 8 in a context where there are parallel immigration and family court proceedings was considered by the European Court of Human Rights in its judgment in Ciliz v The Netherlands (Application no. 2192/95). The applicant in that case was a Turkish national who had come to the Netherlands in 1998 and married later that year. He was granted a residence permit to live in the Netherlands with his spouse in March 1989. They had a son in August 1990 and the applicant, his wife and his son lived together for about 18 months before the applicant and his wife separated. The applicant applied to the regional court for an order establishing an arrangement for parental access to his son. The regional court asked a child care and protection board to investigate the position. Following a hearing in November 1994, the regional court decided on 19 January 1995 that, in view of the circumstances and the relationship of the parties, it was inappropriate to lay down a formal access arrangement. The regional court said it assumed that the contacts that the applicant had with his son would continue in future and observed that the wife should ensure that contacts between the applicant and his son took place. The applicant filed an appeal against the decision not to formalise the access arrangements. Meanwhile, the applicant had been refused an extension to his residence permit. He had appealed against that refusal. On 10 May 1995, a hearing of that appeal took place. The court decided the refusal to allow the applicant continued residence in the Netherlands was a justified interference with his right to family life. Meanwhile, on 1 June 1995, the appeal in the family court proceedings was adjourned to enable the child care and protection board to organise what were described as a number of supervised trial meetings. Those meetings were delayed because of the heavy-work load of the board. The applicant was then detained. The first supervised meeting took place on 7 November 1995 in the detention centre. The applicant meanwhile had requested a residence permit on 2 November 1995. That had been refused and the applicant appealed, contending that the proceedings concerning access to his son had not been concluded and the trial meeting ordered in June 1995 had not taken place until November 1995. The appeal was dismissed and the applicant removed from the Netherlands and sent to Turkey.

It was in that context that the European Court decided first whether there had been an interference with the right to respect for family life or a failure to comply with a positive obligation imposed by Article 8. It said at paragraphs 61 to 63 (references omitted):

At paragraphs 67 and following, it considered the circumstances of the case. It noted that there were two sets of proceedings running concurrently. The regional court had not made a formal access arrangement but it had stipulated that the existing contacts between the applicant and his son should continue. Further, the appeal against the refusal to make a formal access arrangement was pending at the time that the appeal against the refusal to extend the residence permit was heard. Furthermore, the appeal in the access proceedings had ordered that there be supervised trial meetings but the Dutch authorities had detained the applicant before the first trial meeting had taken place. The delay in arranging the meetings was not the fault of the applicant (who had requested that the arrangements be expedited and arranged by a different body) but were the result of the workload of the child care and protection board. The European Court also noted that the applicant had not been convicted of any criminal offence barring his removal from the Netherlands. It also noted that the applicant was expelled shortly after the first trial meeting and was refused a visa to return to attend further trial meetings.

It was in those circumstances that the European Court found that the interference with the applicant’s right to respect for his family life was not justified under Article 8(2) of the Convention as (citations omitted):

The decision in Ciliz highlighted the possible need, depending on the circumstances of an individual case, to co-ordinate family court and immigration proceedings. An individual may, depending on the circumstances, need to be allowed to remain in the United Kingdom pending the conclusion of the family court proceedings if there is not to be a breach of Article 8 of the Convention. That could be achieved by allowing an appeal against a refusal to grant leave (so that the Secretary of State could grant leave for a limited period whilst the family court proceedings were concluded) or the immigration appeal proceedings may be adjourned pending the resolution of the family court proceedings.

The issue was considered by the Upper Tribunal (Immigration and Asylum Chamber) comprising McFarlane LJ (then a judge of the Court of Appeal with considerable family law experience), the then President of the Upper Tribunal (Immigration and Asylum Chamber) and an Upper Tribunal Judge in RS. RS was a national of India unlawfully in the United Kingdom. He married a British citizen. They had a daughter on 4 April 2005. RS was convicted of possession of a false passport (which he was using to obtain employment to get money to support his family) and sentenced to 12 months’ imprisonment. As such, he was a foreign criminal within the meaning of the UK Borders Act 2007 and liable to deportation. While the applicant was detained, social services visited the family home as there were concerns about his wife’s mental health and ability to cope alone with the child. The child had not been fed or properly clothed and the house was in a poor state of cleanliness. An emergency protection order was made and the child was taken into interim local authority care on 12 February 2010. Proceedings concerning the care of the child continued in the family court. RS also appealed against the decision to deport him. The matter ultimately came before the Upper Tribunal in May 2012. RS’ position was that the most appropriate course was to adjourn the immigration appeal pending the outcome of the family court proceedings in June 2012 when it would be known if the child would be returned to the care of RS and his wife or placed for adoption or long-term foster care. The Secretary of State did not oppose that course of action. The Upper Tribunal considered the inter-relationship of care and immigration proceedings, and the decision in Ciliz. At paragraphs 36 to 37, it observed that:

The Upper Tribunal considered the decision in MS (Ivory Coast) v Secretary of State for the Home Department [2007] EWCA Civ 133 where this Court concluded that the issue could not be resolved by an undertaking from the Secretary of State that he would not remove the individual pending the outcome of the family court proceedings. Rather it was incumbent on the tribunal to determine the appeal and decide whether or not there would be a breach of Article 8 if a person was removed before the conclusion of the family court proceedings. The Upper Tribunal noted that there was no universal obligation to allow an appeal, so that a period of leave to remain could be granted, where family court proceedings remained unresolved (noting the decision to that effect in DH (Jamaica)[2020] EWCA Civ 207).

At paragraph 43 the Upper Tribunal set out the questions that should be considered in order to enable an immigration tribunal to determine the questions identified at paragraph 44. It is necessary to set out those two paragraphs in full:

The Upper Tribunal then made observations on the choice between the grant of discretionary leave and adjournment at paragraph 45. At paragraph 46 it noted that:

At paragraph 47, the Upper Tribunal indicated that there will need to be informed communication between the judges deciding the immigration issues and those deciding the family issues. (I note that there is now a protocol governing communications between judges of the family court and the Immigration and Asylum Chambers of the First-tier Tribunal and the Upper Tribunal).

Applying those principles, the Upper Tribunal considered that there should be an adjournment of the appeal in Upper Tribunal for the short period that it was anticipated was necessary for the family court proceedings to conclude. It went on to express its likely view of the outcome of the appeal depending on the decision that the family court took about where the child’s interests lay. If the family court decided to return the child to the care of her parents, the likelihood was, for the reasons given, that it would be disproportionate to remove RS to India (notwithstanding his criminal conviction). If the family court decided that the child should not return to her family, but should be placed for adoption or long term foster care, removal then would be likely to be compatible with Article 8 of the Convention.

The principles set out by the Upper Tribunal in RS have been endorsed by this Court in Mohan v Secretary of State for the Home Department [2012] EWCA Civ 1363; [2013] 1 WLR 922 at paragraphs 21 to 22. There has been a change in that the Upper Tribunal cannot now direct the grant of leave so, if it decides that compliance with Article 8 of the Convention requires the applicant to remain in the United Kingdom pending the outcome of family court proceedings, it will either allow the appeal (leaving the Secretary of State to grant limited leave for a period) or will adjourn the hearing of the immigration appeal: see CJ (family proceedings and deportation South Africa) [2022] UKUT 336 (IAC).

The current position therefore is as follows. First, the approach in RS and endorsed in Mohan applies to situations where there is an appeal against a decision which may lead to removal or deportation, or the refusal of leave to remain, and there are also family court proceedings in existence. The issue is how to deal with an immigration appeal in circumstances where there are also family court proceedings in existence. The fact that the decision in RS refers to deciding whether a person with a criminal record or adverse immigration history should be removed or deported reflects the facts of that case not a limitation on the relevance of the principles identified to those circumstances. The decision is of general application to cases where there are immigration and family court proceedings in existence. Factors such as criminal offending, or an adverse immigration history may, depending on the circumstances, be one of the factors relevant to the decision that the tribunal is called on to make but the guidance in RS is not limited to such cases.

Secondly the issue that the First-tier Tribunal (or Upper Tribunal, if relevant) has to determine is:

I reject the submission of Mr Malik that there is a hierarchy and that the primary position is that the appeal should be allowed but if that is not possible then there should be an adjournment. Each is a means of ensuring that the action taken is compatible with Article 8 of the Convention; there is no hierarchy between them. The question of which course of action is appropriate is a matter for the relevant tribunal to take.

Thirdly, the questions identified at paragraph 43(i) to (iv) in RS are questions to be considered as part of the process of deciding if a person has a right derived from Article 8 to remain in the United Kingdom pending the conclusion of the family court proceedings. They are not a checklist to be considered in the abstract. They should be understood in the context of the issue which the tribunal has to determine.

In that context, the question in 43(i) of RS may be relevant, for example, if the outcome of the family court proceedings could not be material to the immigration decision. If that were the case, that might well indicate that determining the immigration appeal will not involve a breach of Article 8. Conversely, if there is the possibility of it being material, that is a factor which may point towards the existence of such a right but again, the nature, relevance and extent of the materiality may need to be considered alongside the answers to the other questions in paragraph 43 of RS. Similarly, the question in paragraph 43(ii) of RS is focussing on whether there are compelling public interest reasons to exclude the individual from the United Kingdom irrespective of the outcome of the family proceedings (such as, to give just one possible example, particularly serious or persistent criminal behaviour). In those circumstances, again, exclusion from the United Kingdom may not be incompatible with Article 8 irrespective of the existence of family proceedings.

In paragraph 43(iii) of RS, the underlying question is whether the family court proceedings have been designed to delay or frustrate the immigration process and not to promote the child’s welfare. The reference to delaying or frustrating “removal” again reflects the facts of RS and is not an indication that the question is relevant only to cases where a person faces imminent removal. It could also apply, for example, where an individual has limited leave to remain, that leave is about to expire (or has been continued by virtue of section 3C of the Immigration Act 1971) and the tribunal is dealing with an appeal against the refusal to vary that leave by extending it.

Finally, the matters referred to in 43(iv) of RS are matters that a tribunal will normally want to consider when addressing the questions in paragraph 43(i) to (iii). Care should be taken when considering the last factor mentioned in paragraph 43(iv). That involves consideration of “what materials (if any) are already available or can be made available to identify pointers to where the child’s welfare lies”. The tribunal is considering materials which point to where the child’s welfare might lie as that may help in resolving the ultimate issue. By way of example only, if the facts were that there had been a period of caring for, or contact with, a child, that had been interrupted by prison (or separation), but there was some material indicating that the child was missing the father or some other reason why the father was, or should be involved in the child’s life (as in RS for example, where the mother was unable to care for the child alone), that may indicate the possibility that a family court might consider that the child’s best interests lay in care or contact with the father. That may be a relevant factor in deciding whether the father should not be removed before the conclusion of the family court proceedings.

Conversely, if there has not been contact for some time, and there is no material indicating that the absence of contact is giving rise to welfare issues (or material indicating that contact might in fact be considered by the family court to be undesirable), that may be one of factors relevant to answering the questions in paragraph 43 of RS with a view to determining the ultimate question of whether it would be compatible with Article 8 to determine the immigration appeal before the conclusion of the family appeal. Care needs to be taken that the tribunal does not reach a final decision on what is in the best interests of the child in terms of the family issues: that is a matter, ultimately, for the family court to determine. The immigration tribunal is considering whether there is material pointing to where the welfare of the child lies as that may assist in addressing the question to be considered as part of the overall process of determining whether there is a right derived from Article 8 to remain in the United Kingdom pending the outcome of the family court proceedings.

The facts are fully set out in the decision of the First-tier Tribunal. The material facts for present purposes can be summarised as follows. The appellant is a national of Bangladesh. He says that he entered the United Kingdom on 13 October 2005 on a work permit which was valid until 2 October 2006. Thereafter he says he remained in the United Kingdom. Assuming he did so, he was in the United Kingdom unlawfully as he did not have leave to remain in the United Kingdom. He says that he married his wife, who is a British national, on 15 July 2019 when she was living in Bangladesh and he was living in the United Kingdom.

On 28 March 2020, he was granted leave to remain on the basis of his family and private life following his marriage. That leave was granted for period up to 6 February 2023. In June 2020, the appellant and his wife had a child. On 1 August 2021, they separated. The appellant went to live in York. The mother and child remained in London.

On 26 July 2022, the appellant filed an application for a child arrangements order at East London family court. On 13 February 2023, an interim order was made which provided amongst other things that the appellant should have indirect contact with the child by sending child-appropriate and child-focussed letters, cards, gifts and/or photographs no more than once a month starting on 13 March 2023. The appellant was required to retain copies of items sent and to keep proof of postage or sending.

Meanwhile, on 30 December 2022, the appellant had applied for leave to remain as the parent of a British-national child under the relevant Immigration Rules. As he had applied before the expiry of his existing leave, that leave continued until the determination of the application by the respondent and any subsequent appeal against the decision: see section 3C of the Immigration Act 1971. On 28 February 2023, that application was refused. The decision records that the relevant paragraph of the Immigration Rules (paragraph E-LRPT 2.4) required the appellant to provide evidence (a) of sole parental responsibility or direct access as agreed or ordered by the court and (b) that the applicant is taking, and intends to continue to take, an active role in the child’s upbringing. The decision records that the child lived with her mother in London and the appellant lived in York. No evidence of direct contact with the child had been provided. It recorded that the appellant’s representatives had referred to an interim contact order on 13 February 2023 and had been asked to provide evidence of the arrangements. The representatives had replied that the final decision of the family court had not been made and as a result the appellant was unable to provide further information or documents. The decision letter stated that this was unusual in the circumstances. Ultimately, the decision was that the appellant had “not provided any evidence of a genuine relationship or contact with the child and [did] not meet E-LTRPT 2.4”. The decision also considered whether the appellant should be granted leave to remain on the basis of respect for his right to family life. However, the decision letter concluded that the appellant had not shown that the appellant had contact with the child or evidence of steps taken to establish contact. Leave to remain on that basis was refused.

The appellant appealed to the First-tier Tribunal against the decision refusing leave to remain. The appellant provided a short-written statement of 11 paragraphs dated 10 October 2023. The material part is paragraph 5 where the appellant said:

The appellant said at paragraph 6 of his witness statement that he had made an application to the family court, was maintaining the indirect contact order, and was awaiting the final order. He said at paragraph 7 that he had a very strong bond with his child as her father and that he missed her. He also gave oral evidence and was cross-examined and was also asked questions by the First-tier Tribunal. He also had the opportunity to put in documentary evidence. He was represented by counsel.

The First-tier Tribunal dealt with whether there was a genuine and subsisting parental relationship between the appellant and his daughter at paragraphs 15 and 16 of its decision where it said this:

The First-tier Tribunal then turned to the question of Article 8, and the decisions that it had drawn to the attention of the parties, namely, RS and CJ. The decision set out the details of the steps taken in the proceedings in the family court and in the First-tier Tribunal. It noted that an application for an adjournment had been made in writing before the hearing and that had been refused. It noted that counsel acting for the appellant at the hearing had not renewed the application for an adjournment. It recorded the submissions made by the appellant’s counsel as to why the outcome of the family court proceedings was likely to be material and why the appeal should be allowed.

The First-tier Tribunal then set out its answers to the questions in paragraph 43 of RS. On the first question, it considered that the outcome of the family court proceedings could, to a limited extent, be material. If the family court ordered direct contact, that would be material because it would provide the foundation for the establishment of a family life and the appellant would then have to take steps to have, and to continue to have, the direct contact ordered. In relation to the second question, the First-tier Tribunal considered that that there was an obvious public interest in excluding the appellant from the United Kingdom because he did not meet the requirements for the grant of leave under the Immigration Rules (and the maintenance of an effective immigration system was in the public interest) and, on the appellant’s own account, he had been in the United Kingdom for many years without leave to remain and without attempting to regularise his immigration status until 2020. Nevertheless, the First-tier Tribunal did not consider that it could be said that there were “compelling” circumstances, which would justify exclusion from the United Kingdom in event.

The First-tier Tribunal then turned to the third question. In view of the submissions of the parties, it is necessary to set out the question the First-tier Tribunal asked, and its response, in full.

The First-tier Tribunal then went on to consider the issue that it had to determine in the light of the questions it had considered. Its conclusion comes at paragraph 32 of the decisions which says this:

Having decided that Article 8 did not require that the appellant continue to have leave to remain in the United Kingdom pending the outcome of the family court proceedings, the First-tier Tribunal considered the substantive appeal itself. It concluded that the refusal of leave would not be incompatible with Article 8. The appellant did not currently enjoy a family life in the United Kingdom. The appellant was likely to have established a private life but any inference with that private life was justified in accordance with Article 8(2). The appeal was therefore dismissed.

The appellant appealed to the Upper Tribunal but that tribunal dismissed his appeal on 19 February 2025. The appellant was then granted permission to appeal to the Court of Appeal on the three grounds set out at paragraph 5 above.

Mr Malik KC, with Ms Jones, submitted that there was insufficient evidence on which the First-tier Tribunal could find that the appellant was not committed to the family court proceedings and that its reasoning was inadequate. Mr Malik submitted that the First-tier Tribunal had not considered whether the proceedings were brought otherwise than to promote the child’s welfare: that was omitted from paragraph 31 of the reasons. Further, this was not a case where the appellant was delaying or frustrating removal as he had leave to remain which had been continued by statute pending the determination of the appeal. Mr Malik submitted that the First-tier Tribunal had not dealt with the appellant’s evidence.

Mr Malik submitted that there was no proper evidential basis for the First-tier Tribunal to conclude that the family court proceedings were instituted to delay or frustrate removal. The appellant had begun them six months before applying for leave to remain. Whilst the appellant had not attended one hearing at the family court on 23 August 2023, he had attended all other hearings and the matter could not be dealt with at the one hearing that he missed because the wife had not provided the relevant schedule of allegations to enable the family court to determine whether a fact-finding hearing was necessary. Finally, he submitted that it was wrong to draw any inference from the fact that the appellant had not instructed his solicitors to take steps to chase the family court to deal with the matter. The East London family court was a busy family court. There was no obligation on parties to make requests to try and move proceedings along, nor would that be likely to achieve anything, and in any event, the appellant had followed his solicitor’s advice to wait for the family court.

Mr Pilgerstorfer KC, with Ms Pottle, for the respondent submitted that the First-tier Tribunal had properly directed itself as to the law. It had a written statement from the appellant and had heard oral evidence and cross-examination. It was entitled to find the facts it did. Mr Pilgerstorfer made detailed submissions on the criticisms made by the appellant of individual aspects of the decision. He relied upon the decision in Fage UK Ltd v Chobani UK Ltd [2014] EWCA Civ 5; [2014] ETMR 26 at paragraph 114 warning of the dangers of an appellate court interfering with findings of fact, including findings of primary fact and the inferences to be drawn from those facts.

There is no proper basis for criticism of the facts as found, and the inferences drawn from those facts, by the First-tier Tribunal. First, it is clear that it did not fail to consider whether the appellant’s proceedings in the family court proceedings were not made for the promotion of the welfare of the child. It set out the question it was asking, in bold, in the heading to paragraph 31 of its reasons. That asked whether there was reason to believe the family court proceedings had been instituted to delay or frustrate removal “and not to promote the child’s welfare”. Much of the substance of the following sub-paragraphs expressly dealt with that issue.

Secondly, the First-tier Tribunal did not fail to deal with the appellant’s evidence. As a matter of fact (and as accepted by the appellant in his witness statement) he had not had direct contact with his child since August 2021 (when the child was about 14 months old) for over three years as at the date of the First-tier Tribunal hearing. He had moved to York, 200 miles from where his child lived. He was questioned as to why he did that and, as the First-tier Tribunal put it, his decision to move to York was “a long way removed from being child-focussed” and the appellant must have realised that that would reduce the opportunities for spending time with his child. As to paragraph 31(ii), the appellant had said in his statement that he used to be actively involved with his daughter’s upbringing before he left the marital home. The fact is, however, that the appellant had not produced evidence before the First-tier Tribunal of photographs showing direct contact between the father and the daughter before he left the marital home. The fact that he had sent photographs to the respondent with his application and the respondent had not put those photographs in the bundle is irrelevant. It was for the appellant to put forward his evidence to the First-tier Tribunal.

Similarly, the bank statements produced in evidence only covered a period of less than 3 weeks in the autumn of 2023 and did not show payments by the appellant to his wife. There was no other evidence of financial support whether before or after he left the marital home. In relation to the gifts, as the First-tier Tribunal noted, there was some e-mails to show that some items of clothing and toys were sent. One was sent in April 2023 but the year of the other gifts was not readily ascertainable. That is all factually correct. For what it is worth, the appellant included in a supplementary bundle provided to this Court the documents provided to the First-tier Tribunal. That showed that on approximately seven occasions he sent clothes or a toy to his daughter. The reference in paragraph 31(iv) is clearly a reference to the absence of corroborative evidence of his claim that the appellant had tried to maintain contact with his wife with a view to arranging contact with his daughter. As a matter of fact, there was no such corroborative evidence provided. The First-tier Tribunal was not ignoring or overlooking the evidence of the appellant: it was looking for corroborative evidence and there was none.

In all those circumstances, the First-tier Tribunal was entitled to find that all of those findings of fact “points to the very minor degree of the Appellant’s previous interest in, and contact with, the child”.

There was no other error in the findings in relation to the fact that the family proceedings were being used to delay or frustrate the immigration process. That can be seen, essentially, from three findings of the First-tier Tribunal. First, it took the appellant almost a year from leaving the marital home in August 2021 to making an application for a child arrangements order. The First-tier Tribunal considered the explanation for the time taken and did not believe it. It was entitled to infer that the time taken was not consistent with a desire to spend time with the child. Secondly, the appellant had not attended the 23 August 2023 hearing. That hearing had been ordered by the family court as appears from its order made on 13 February 2023. The family court order had made it clear in paragraph 22 of its order, under the heading “Attendance at next hearing”, that the parties should attend an hour before the hearing to allow time for discussions. The First-tier Tribunal was entitled to draw an adverse inference from the non-attendance at the hearing when considering whether the appellant was committed to the family court proceedings.

Thirdly, the First-tier Tribunal considered it “extremely telling” that the appellant and his representatives took no steps between the family court hearing on 21 August 2023 and a case management hearing in the First-tier Tribunal on 24 May 2024 to progress the application for a child arrangements order. That reinforced the First-tier Tribunal in its view that the appellant was not committed to the family court proceedings as his inaction was not consistent with his being keen to instigate contact with his daughter. If that matter had stood alone, one might question whether or not that did provide a sufficient basis for the inference drawn. But first, it did not stand alone. It was a matter that fell to be considered with the other matters indicating an absence of commitment to the family court proceedings. Secondly, this occurred in a context where, we are told, the family court ordered at the hearing on 21 August 2023 that the next hearing should be listed on the first available date after 30 October 2023 (we were not provided with the order of 21 August 2023). That would have provided a reason for the appellant’s representative to take some steps before 24 May 2024 to see when the hearing was to be relisted. Thirdly, and perhaps more significantly, the First-tier Tribunal drew a contrast between the actions of the representatives to contact the First-tier Tribunal to deal with the immigration appeal but did not contact the family court. The representatives were the same firm of solicitors. In all those circumstances, the First-tier Tribunal was entitled to find the facts, and draw the inferences, that it did and to find as it said, that the appellant had shown very little commitment to the progression of his application for an order for contact with his child.

For those reasons, I would dismiss ground 1. There was ample evidence to justify the factual findings, and inferences drawn from those facts, that the appellant had very little previous interest in, or contact with, his daughter and had shown very little commitment to the progress of his application for contact.

It is convenient to take these two grounds together. Mr Malik submitted that the First-tier Tribunal had erred in finding in paragraph 31(xiv) of its reasons that the child’s best interests were to remain living with her mother without contact with the appellant. That, he submitted, prejudged the decision that was for the family court to take. It ran contrary to the guidance in paragraphs 36 and 37 of RS which emphasised that it was for the family court, with the procedures and assistance available to that court, to determine the welfare issues concerning the child. Further the First-tier Tribunal had based its conclusion, at least in part, on allegations that the appellant had strangled his wife which were allegations which had not been assessed by the family court. A tribunal had reason to be cautious about the weight to be given to such allegations before they were investigated by a family court. The burden of proving the allegations would be on the wife and there may be reasons, in the domestic context, where a party to family proceedings would exaggerate or invent allegations. Further, he submitted that the First-tier Tribunal was wrong to assume that the appellant could participate in an appeal from abroad or that it would, in practical terms, be possible to form a relationship from abroad if the family court ordered direct contact.

Mr Pilgerstorfer submitted that the decision had to be read as a whole. The First-tier Tribunal was well aware that there might need to be a fact finding hearing in the family court in relation to the appellant’s ex-wife’s allegations of domestic abuse. That was reflected again in paragraph 31(xiii) of the reasons. The First-tier Tribunal drew a distinction, on the one hand, between an assault committed by the appellant on the wife, where the appellant had accepted the assault had occurred and had been cautioned and, on the other, the (unproven) allegation of strangulation. The appellant had said that the child would have been in the house at the time albeit asleep. It was aware that the other allegation of domestic abuse, including the allegation of strangling, which went beyond the matters covered by the caution, might need to be the subject of a fact-finding hearing. The First-tier Tribunal considered that the evidence available pointed away from the child’s welfare being met by direct contact with the appellant. That, he submitted was a perfectly permissible position for the First-tier Tribunal to take. It was required to have regard to the best interests of the child and it was consistent with paragraph 43 of the decision in RS.

He further submitted that paragraph 31(xiv) had to be read fairly, and as part of the decision as a whole. It confirmed that the First-tier Tribunal had considered the child’s best interest and “on the current evidence” which demonstrated that the child had been raised in a household where domestic abuse had been perpetrated. That was not a finding or a decision; it was a view based on the current evidence. Further, the reference to domestic abuse was a reference to the assault which the appellant accepted had happened and did not include allegations such as the allegation of strangling. In relation to paragraph 32, he submitted that the First-tier Tribunal was correct in saying that evidence could be given from abroad and it would not be impossible, albeit it would be more difficult, to form a relationship from abroad if the family court were to order contact.

I accept that, read in isolation, parts of paragraph 31(xiv) might indicate that the First-tier Tribunal had sought to reach a decision on whether the best interests of the child required contact with the appellant. That could be said to be the natural reading of the phrase that the child’s best interests “are to remain living with her mother without contact from the appellant”. Deciding that issue would not be the role of the First-tier Tribunal not least for the reasons given in paragraph 37 of RS set out above. Further, I am not confident that paragraph 31(xiv) can be read as limited to the admitted domestic abuse, i.e. the assault, and does not include the allegation of strangling.

Ultimately, however, I am satisfied that it would be wrong to read one phrase in isolation in paragraph 31(xiv) and it would be wrong to read one-subparagraph in isolation from the rest of the judgment. It is also necessary to bear in mind the purpose for which the First-tier Tribunal was considering the welfare of the child.

Paragraph 43(iii) of RS indicates that the First-tier Tribunal should consider, amongst other matters, “what materials (if any) are available or can be made available to identify pointers to where the child’s welfare lies”. That involves considering whether any evidence of where the child’s welfare currently lies is such, that it indicates that the family court proceedings should be concluded before the immigration appeal is determined. Whether that is the case will depend upon a number of factors. At one end of the spectrum, there may well be cases where the father is a foreign national criminal liable to deportation or has an adverse immigration but has had (and has continued to have) contact with the child, and where there is evidence of a real bond between them or that the child is missing or suffering from the lack of contact with the father. At the other end, there may be cases where there has been little or no contact, and none of the evidence points in either direction as to whether or not future contact is in the child’s best interests or which might point to contact not being in the child’s best interests.

In the present case, the context was that the appellant had not had any direct contact with the child for over three years (i.e. from when the child was about 14 months old and the time of the hearing when the child was approximately four years and three months old). That was a point made in paragraph 31(xiv). In that context, the evidence did not currently point towards the welfare of the child being in renewed contact in future. Such evidence as there was, namely the admitted assault and the allegations recorded in the CAFCASS letter about other abuse, pointed, if anything, against that. Furthermore, paragraph 31(xiv) was intended to confirm that the First-tier Tribunal had considered the welfare of the child as appears from its opening words, and was not, in reality a new, or separate, finding divorced from the earlier sub-paragraphs. Sub-paragraph 31(xiv) is inaptly worded, and parts (particularly the reference to living “without contact from the Appellant”) are too strongly worded and, read in isolation, would suggest that the First-tier Tribunal had exceeded its role. Reading the judgment fairly, and as a whole, however, the First-tier Tribunal was not reaching a final conclusion on the child’s best interest and was not prejudging the decision of the family court. It was following the guidance in RS.

Further, reading paragraph 32 as a whole, and in the light of the judgment, it is clear that the decision that the appellant did not have at least an Article 8 right to remain until the conclusion of the family court proceedings was driven by its conclusions on the questions identified in paragraph 43(i) to (iv) of RS. The references to the absence of evidence that the appellant would be unable to give evidence in the family proceedings or about the possibility of establishing a relationship from abroad if the family court ordered contact were additional reasons, or consequences, flowing from the finding that the appellant did not have an Article 8 right to remain in the United Kingdom until the conclusion of the family court proceedings. In any event, the observations are, strictly, correct.

Standing back from the details, the First-tier Tribunal had to determine if the appellant had a right derived from Article 8 to remain in the United Kingdom pending the conclusion of the family court proceedings. If so, it would either have to allow the appeal (so that the Secretary of State could grant limited leave to remain) or adjourn the hearing (although the appellant had not in fact applied for an adjournment at the hearing).

The First-tier Tribunal was aware that there had been no direct contact between the appellant and the child for over three years. It was entitled to find that the appellant had had little interest in contact with the child and was not committed to the family court proceedings, rather he was using them as a means to delay the immigration process. There was nothing in the evidence to indicate that the welfare of the child pointed to the renewal of direct contact; if anything it pointed against direct contact. In those circumstances, the First-tier Tribunal was not wrong in the decision it made, namely that the appellant did not have a right on the facts of this particular case to remain in the United Kingdom pending the resolution of the appeal. I would therefore dismiss the appeal.

There is one ancillary matter. The First-tier Tribunal considered the substantive appeal against the refusal of leave to remain (as well as the question of whether the appellant had at least a right to remain at least until the family court proceedings were concluded). It found that the appellant had not established that he did at the material time enjoy any family life and the refusal of leave was a justifiable interference with any right to private life. There is no appeal against those aspects of its decision. I would also add that no justifiable criticism can be made of that aspect of its decision given the evidence before it.

We were told by Mr Malik that there is now evidence not only that an order for contact has been made (which would not, of itself, be likely to establish that the appellant was actually enjoying family life) but that he has, in fact, had contact with the child. We have had no admissible evidence as to whether or not there has been any direct contact with the child, when any such contact took place, the extent or duration of any such contact, or the result in terms of any bond or relationship formed.

The appellant may if he wishes apply to the Secretary of State for leave to enter or to remain in the United Kingdom on the basis that he says that he is a parent of a British-national child who is entitled under the Immigration Rules to leave, or that to refuse leave would be incompatible with Article 8. I express no views on whether such an application will be made, or whether it would be successful. Mr Malik made submissions as why it would be preferable from his client’s point of view for the appeal to be allowed and the matter remitted to the First-tier Tribunal to decide. That, however, is neither permissible nor appropriate. It is not permissible as the First-tier Tribunal has not erred in its conclusions on the evidence before it. If the appellant now has evidence that he says supports the grant of leave to remain, whether under the Immigration Rules or otherwise, the appropriate course of action is for the appellant to make the relevant application to the respondent supported by evidence. The respondent can then assess that evidence and reach a decision. If the appellant is dissatisfied with the decision, he can then appeal to the First-tier Tribunal.

I agree.

I also agree.