Upper Tribunal: third party cannot appeal for a child without checking who can instruct

The Upper Tribunal has held that a third party cannot confer on itself authority to appeal for a child where capacity was not assessed and no one authorised was contacted, in a Nigerian entry clearance case.

Background

The Upper Tribunal (Immigration and Asylum Chamber) heard the case on 13 January 2026 and issued its decision on 13 April 2026. The appellant is a child from Nigeria. The Tribunal continued the anonymity order made in the First-tier Tribunal because he is a minor and the issues could raise safeguarding questions.

An application for entry clearance under Appendix FM of the immigration rules was said to have been made for him on 2 June 2023, when he was 13, to join a British citizen relative in the UK. A firm of solicitors made the application and gave its own address as the child's correspondence address.

The application said the child's mother had died, that his father was too ill to care for him and that he lived with his maternal grandmother in Nigeria. The sponsor was said to be a cousin. She and her mother, described as the child's great-aunt, both live in the UK.

The Entry Clearance Officer refused the application on 31 October 2023. One reason was that no valid medical certificate confirming tuberculosis screening had been presented. The officer also concluded the relationship and financial requirements were not met. The refusal said emails asking for documents had gone unanswered, which the solicitors challenged.

The solicitors appealed to the First-tier Tribunal. The judge there concluded there was no jurisdiction because the appeal was brought by a third party without legal standing.

The question

Could the Tribunal consider an appeal lodged by representatives said to be acting on instructions from a third party, rather than from the child or a guardian?

The decision and reasoning

The right of appeal under section 82 of the Nationality, Immigration and Asylum Act 2002 lies against the refusal of the claim made by the child. The Tribunal held that a third party cannot confer on themselves the authority to exercise that right for a child in two circumstances combined:

• there has been no assessment of the child's capacity to give instructions, and
• there has been no attempt at all to speak to the child's parents, legal guardian or someone properly authorised to instruct on the child's behalf.

A litigation friend is not required in every case involving a child. But representatives and the Tribunal must consider whether the child is capable of giving instructions. That means whether, with proper explanation, the child can understand the issues on which his consent or decision is likely to be needed. A guardian or parent may bring an appeal for a minor, or a "Gillick" competent child may instruct directly.

Where a child is legally represented, the Tribunal said it is vital that proper due diligence is completed to ensure instructions come from the child, one or both parents, or a guardian entrusted with the child's care. It said two sources are a safeguarding tool and should be followed:

• the principles in R (on the application of JS and Others) v Secretary of State for the Home Department (litigation friend – child) [2019] UKUT 64 (IAC)
• the Solicitors Regulation Authority practice note "Meeting the needs of vulnerable clients"

The potential for abuse and for a child being exposed to risk, it said, cannot be underestimated.

The solicitors' representative accepted that no one at the firm had spoken directly to the child, his father or his grandmother. The Tribunal refused an adjournment, citing the overriding objective and the delay to a child's appeal.

Sources

• AF (child appellant; representation and instructions) Nigeria [2026] UKUT 274 (IAC), Upper Tribunal (Immigration and Asylum Chamber), 13 April 2026