Tribunal decisions

The decision

IN THE UPPER TRIBUNAL
IMMIGRATION AND ASYLUM CHAMBER
Case No: JR-2023-LON-001668

Field House,
Breams Buildings
London, EC4A 1WR

21 November 2025

Before

UPPER TRIBUNAL JUDGE NEVILLE

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Between

THE KING
on the application of
Helen Amante
Applicant
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SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Mr A Osman, counsel
(instructed by Lisa’s Law), for the applicant

Mr P Erdunast, counsel
(instructed by the Government Legal Department) for the respondent

Hearing date: 12 May 2025

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J U D G M E N T

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1. The applicant is a national of the Philippines who arrived in the United Kingdom on a visit visa on 5 May 2003 and claims to have resided here continuously since that date apart from minor trips abroad. On 26 April 2023 she made an application for leave to remain in the UK, relying on paragraph PL5.1(a) of Appendix Private Life to the Immigration Rules.
2. The application was refused in a decision dated 26 May 2023 (“the refusal decision”). The respondent first decided that the applicant had not continuously resided here for the 20 years required by para PL5.1(a), noting that stamps in her passport showed her entering the Philippines on 15 June 2005 then re-entering the UK on 18 October 2008 and that there appeared to be no evidence of her residing here in the interim. Her residence in the UK was taken as beginning on that last date of entry, so at the date of application had continued for 14 years and 6 months and 8 days1. Nor, the respondent next decided, had the applicant shown that she met the alternative requirement of facing very significant obstacles to integration on return to the Philippines or that her removal would otherwise be a disproportionate interference in the right to respect for her private life afforded by Article 8 ECHR. Both the application, and the human rights claim made within it, were refused.
3. The respondent certified the human rights claim as clearly unfounded under section 94 of the Nationality, Immigration & Asylum Act 2002 (“the certification decision”), meaning that the applicant had no right of appeal to the First-tier Tribunal. This was because the applicant fell short of the residence requirements in the rules and had provided no evidence to show that she could not work, live and reintegrate in the Philippines, a country in which she had lived for 44 years and where she had three adult children. Her claim, reasoned the respondent, could therefore not succeed on any legitimate view. It is the certification decision that is challenged in these judicial review proceedings.
4. The grounds pursued by the applicant, as set out in her Statement of Facts & Grounds (SFG), can be briefly summarised as follows:
a. The respondent omitted to consider relevant evidence, including an entry stamp dated 14 November 2005, and various receipts, letters, remittance invoices and bus passes from living in the UK during the period denied by the respondent.
b. The decision is inadequately reasoned.
c. The respondent failed to take her evidence at its highest when deciding to certify her human rights claim as clearly unfounded; and the nature of that was such that a properly directed Judge of the First-tier Tribunal might, on appeal, accept the length of her claimed residence.
d. It was irrational of the respondent to conclude that the claim was bound to fail. This includes an argument that she fettered her discretion by treating certification as mandatory once persuaded that the claim was clearly unfounded.
5. Because, the grounds argue, Article 8(1) is engaged, a conclusion that the applicant met the rules was dispositive of the human rights claim in her favour. The authority of TZ (Pakistan) v Secretary of State for the Home Department [2018] EWCA Civ 1109 is cited in support. It is important to note that the applicant puts forward no other discrete factual matter that could weigh in her favour in a proportionality assessment, nor does she put forward any other reason why the respondent was wrong to conclude that refusing the application would not be disproportionate.
6. Following permission being granted, the respondent provided Detailed Grounds of Defence (DGD). They are brief and, beyond some setting out some background and referencing a chronology, read exactly as follows:
a. Even on the applicant’s own evidence, she has not been continuously resident in the UK for 20 years;
b. This was and remains an adequate reason in itself for the SSHD to assert that no immigration judge properly directed could disagree.
c. The applicant’s case was/is taken at its highest, and
d. The applicant’s evidence did not show and has not shown that her return to the Philippines would have unjustifiably harsh consequences.
Legal framework
Appendix Private Life
7. At the date of the refusal decision, the relevant parts of Appendix Private Life to the Immigration Rules provided as follows:
Residence requirements for an adult on the Private Life route (including a young adult who does not qualify under PL 4.1.)
PL 5.1. Where the applicant is aged 18 or over on the date of application:
(a) the applicant must have been continuously resident in the UK for more than 20 years; or
(b) where the applicant has not been continuously resident in the UK for more than 20 years, the decision maker must be satisfied there would be very significant obstacles to the applicant’s integration into the country where they would have to live if required to leave the UK.
[…]
Continuous Residence requirements on the Private Life route
PL 7.1. The period of continuous residence at PL 3.1, PL 4.1. or PL 5.1. may include time spent in the UK with or without permission.
PL 7.2. The period of continuous residence at PL 3.1, PL 4.1. or PL 5.1. does not include any period during which the applicant was serving a sentence of imprisonment or was detained in an institution other than a prison.
PL 7.3. The period of continuous residence at PL 3.1, PL 4.1. or PL 5.1 is broken (i.e. is no longer continuous) if any of the following apply:
(a) the applicant has been absent from the UK for more than 6 months at any one time; or
(b) the applicant has spent a total of 550 days or more absent from the UK during the period of continuous residence at PL 3.1, PL 4.1 or PL 5.1; or
(c) the applicant has been removed, deported or has left the UK having had an application for permission to enter or stay in the UK refused; or
(d) the applicant left the UK with no reasonable expectation at the time of leaving that they would lawfully be able to return.
[…]
Eligibility requirement for Private Life route relying on Article 8 of the Human Rights Convention
PL 8.1. If the applicant does not meet the suitability requirements (subject to PL 8.2), or does not meet any of the eligibility requirements in PL 3.1., PL 4.1. or PL 5.1. the decision maker must be satisfied that refusal of permission to stay would not breach Article 8 of the Human Rights Convention on the basis of private life.
8. The combined effect of the above provisions is that to meet the rules the applicant had to either meet PL 5.1 by having been continuously resident in the UK for more than 20 years or by facing very significant obstacles to integration in the Philippines or establish that refusing her permission to stay would breach Article 8 ECHR on the basis of her private life. Continuous residence for the purpose of the first limb of PL 5.1 would be broken by any of the events at PL 7.3.
Certification
9. So far as relevant to the present case, section 94 of the 2002 Act provides that:
(1) The Secretary of State may certify a protection claim or human rights claim as clearly unfounded.
[…]
(3A) A person may not bring an appeal under section 82 against a decision if the claim to which the decision relates has been certified under subsection (1).
10. The test for certification is well-established. It requires that the human rights claim is bound to fail or, putting it another way, cannot on any legitimate view succeed on appeal before a properly directed judge of the First-tier Tribunal: R. (Yogathas) v Secretary of State for the Home Department [2002] UKHL 36; R. (ZL) v Secretary of State for the Home Department [2003] EWCA Civ 25. As held in ZT (Kosovo) v Secretary of State for the Home Department [2009] UKHL 6 at [23], on judicial review the Upper Tribunal addressing the rationality of a conclusion that a claim is clearly unfounded by asking itself the same question.
11. Also relevant in the present case is the correct approach where success on appeal would depend on a disputed issue of fact, described as follows by Beatson LJ in R. (FR (Albania)) v Secretary of State for the Home Department [2016] EWCA Civ 605:
75. Ms Carss-Frisk submitted that the Secretary of State should take the facts of cases in which she proposes to issue a certificate at their highest, and only in a rare case will she be able to conclude that an asserted fact by a claimant or a suggested inference from an asserted fact would be so incredible that no-one could accept it: if anyone could accept it, it is not, she argued, possible to certify the claim. Ms Carss-Frisk submitted that there is little point, at least in a practical sense, in the Secretary of State doing anything other than taking the asserted facts at their highest. She relied on the Secretary of State's guidance as to credibility in force at the time of the decisions about the appellants set out at [67] above. The correct test, however, is, as Ms Anderson observed, not whether there is any prospect of "anyone" believing an account to be true, but whether the First-tier Tribunal, properly directing itself as to the law and as to the facts on the evidence before it, would so conclude. The tribunal has to assess the evidence of a claimant in the round and against the body of relevant objective evidence.
[…]
77. […] What must be assessed is the claim which has in fact been put forward, including the answers in interview and the contents of witness statements, the detail given and any supporting evidence submitted.
Length of residence taking the applicant’s case at its highest
12. While conciseness in any pleading is to be lauded, beyond referring the reader to the applicant’s own chronology the DGD (which were not settled by Mr Erdunast who appeared before me) fail to detail how the applicant’s own evidence showed her to have lived in the UK for less than 20 years. Nonetheless, the most obvious way in which this is so can be seen in the factual introduction given above. The rules require 20 years’ continuous residence to have accrued by the date of application. As confirmed at para 3 of the SFG, the applicant first arrived in the UK on 5 May 2003. The date of application was 26 April 2023, which was 19 years, 11 months and 23 days later. She cannot have been continuously residing in the UK for 20 years at the date of application. While (sometimes misunderstood) caseworker guidance permits applications under some other routes to be made up to 28 days short of accruing a qualifying period, there is no such provision in relation to Appendix Private Life.
13. At the start of the hearing I put that concern to counsel for both parties and received two responses. First, Mr Osman submitted that the text “at the date of application” at PL 5.1 above only refers to the age of the applicant, and the subsequent conditions can be met subsequently – more specifically the date of decision. I reject this. The natural and ordinary meaning of the words used, in that structure, is that all requirements must be met at the date of application. Recognising that they are statements of the Secretary of State’s administrative policy, the preferable construction from both an applicant and the respondent’s point of view is one that does not make a grant of leave contingent on how quickly the latter’s resources have enabled her to consider the application. This would bring nothing but uncertainty for applicants and administrative unpredictability for the respondent.
14. I am also assisted by the former incarnation of the rule at para 276ADE, which was superseded by Appendix Private Life for applications made on or after 20 June 2022. It read:
276ADE (1). The requirements to be met by an applicant for leave to remain on the grounds of private life in the UK are that at the date of application, the applicant:
(i) does not fall for refusal under any of the grounds in Section S-LTR 1.1 to S-LTR 2.2. and S-LTR.3.1. to S-LTR.4.5. in Appendix FM; and
(ii) has made a valid application for leave to remain on the grounds of private life in the UK; and
(iii) has lived continuously in the UK for at least 20 years (discounting any period of imprisonment); or
(iv) is under the age of 18 years and has lived continuously in the UK for at least 7 years (discounting any period of imprisonment) and it would not be reasonable to expect the applicant to leave the UK; or
(v) is aged 18 years or above and under 25 years and has spent at least half of his life living continuously in the UK (discounting any period of imprisonment); or
(vi) subject to sub-paragraph (2), is aged 18 years or above, has lived continuously in the UK for less than 20 years (discounting any period of imprisonment) but there would be very significant obstacles to the applicant’s integration into the country to which he would have to go if required to leave the UK.
15. That formulation leaves no room for doubt: the 20 years’ residence is required at the date of application. The language of Appendix Private Life bespeaks only greater simplicity of expression and contains nothing to suggest that the substantive requirements had changed. I reject that there is any genuine ambiguity in the new rule to justify reference to the respondent’s formally published caseworker guidance as an aid to construction – see R. (Ullah) v The Secretary of State for the Home Department [2015] EWHC 337 at [13]-[15] – but if it were, regard would be paid to version 1.0 of the relevant guidance2 following the rule change still specifying 20 years’ residence at the date of application.
16. The respondent, explained Mr Erdunast, did not accept the applicant’s interpretation, but nor was it accepted that the one week shortfall was material to certification. The position agreed between counsel was that the FtT, hypothecated in FR (Albania) at [75], above, would hear an appeal some time after the application date, by which time 20 years would have been accrued. As it is well-established that the FtT considers Article 8 by reference to circumstances as they stand at the date of hearing, the judge would treat the rules as being met. So, neither party was concerned by the one week shortfall, and had drawn their battle lines around other issues. As I informed the parties, I would take that position into account, and hear submissions on those other issues, but I did not necessarily endorse that agreement.
17. Having heard those submissions, I have no hesitation in rejecting this last-minute disavowal of the materiality of a one week shortfall. My reasons are these.
18. The applicant challenges two decisions, first to refuse the application and second to certify the underlying human rights claim as clearly unfounded. On the former, the ultimate conclusion was that the applicant did not have the continuous residence required by the rules. While that conclusion was founded on the gap in residence between 2005 and 2008, it was nonetheless inevitable on considering the chronology put forward.
19. I further reject that the certification decision must be taken (or reviewed) on the assumption that more time will elapse before the human rights claim would be considered by the hypothetical FtT, and that new facts might arise in the meantime.
20. First, even if the certification scheme permitted such a proleptic assessment, a future FtT decision would still assess Article 8 proportionality on the basis that the rule requires 20 years’ residence as at the date of application – see, for example, Begum (employment income, Rules/Article 8) Bangladesh [2021] UKUT 115. As with the rules in issue in that case, there is no basis upon which to import an ambulatory requirement into PL 5.1 that its conditions must not only be met at the date of application, but also at the date of decision and then again on the day an appeal is heard.
21. In response to Begum, I was referred to OA and Others (human rights; 'new matter'; s.120) Nigeria [2019] UKUT 65 (IAC). This provides no further assistance. A frequently overlooked feature of OA is that before the Upper Tribunal could allow OA’s appeal by reason of ten years’ lawful residence being accrued by the date of hearing, the respondent had to give consent under section 85(5) to that ‘new matter’ being considered – see [22]. Such a new matter cannot form part of the FtT’s consideration without the statutory scope of the appeal being subject to an agreed alteration.
22. Second, no such proleptic assessment is permitted in any event. This is a judicial review of the certification decision by the respondent. It is the respondent who is afforded the role of gatekeeper by primary legislation, and the Upper Tribunal’s jurisdiction over her decisions remains a supervisory and reviewing one; it is concerned with the evidence that was before her when she made that decision, at the time when she made it: FR (Albania) at [62], [77]. The basis of review may include the Upper Tribunal considering for itself whether the respondent was right to consider that a claim was bound to fail before a hypothetical FtT judge, but that reflects the intensity of the review rather than its nature. While the Upper Tribunal may sometimes consider already-existing evidence that the respondent did not, this is only where her failure to do so was in breach of a legal duty – for example, if a relevant Country Policy & Information Note had been overlooked.
23. It is therefore inevitable that any putative FtT consideration of the applicant’s human rights claim would be done on the basis that she did not meet the requirements of Appendix Private Life. In addition, the FtT would be cautious not to treat the subsequent accrual of 20 years’ residence as any form of ‘yardstick’ when giving weight to the applicant’s private life: AM (Belarus) v Secretary of State for the Home Department [2024] UKSC 13 at [101]-[103].
24. That conclusion is fatal to the application for judicial review. The grounds are entirely premised on a challenge to the respondent’s finding that the applicant did not meet the rules. There is no challenge to the respondent’s assessment of Article 8 proportionality if that finding is preserved.
Other matters
25. While strictly unnecessary, I set out a brief assessment of the other issues that were argued.
The respondent’s assessment of the evidence
26. I agree with the applicant that evidence submitted in support of her application was wrongly disregarded by the respondent. The refusal decision considered there to be no evidence of residing in the UK between 15 June 2005 and 19 October 2008 due to there being no entry stamp in the applicant’s UK passport during that time. There was, in fact, an entry stamp showing entry to Heathrow on 14 November 2005. The refusal decision is equivocal on residence between 2003 and 2005, but I was taken to evidence before the respondent capable, on a legitimate view, of establishing it.
27. I do accept Mr Erdunast’s argument that no documentary evidence was provided at all for the period between May 2006 to March 2008, but the appellant had still asserted that she was resident in the UK during that time. While the focus is on the evidence before the respondent, the nature of certification requires account to be taken of the possibility that the applicant could persuade the FtT to accept her oral evidence on the point. It cannot be said that her claim was bound to fail in that respect, and were it not for the one week shortfall already described I would have granted the application for judicial review and quashed the certificate.
28. Finally, I should record the submissions made concerning the case of TZ (Pakistan) v Secretary of State for the Home Department [2018] EWCA Civ 1109, in which the Senior President of Tribunals held:
34. That leaves the question of whether the tribunal is required to make a decision on article 8 requirements within the Rules i.e. whether there are insurmountable obstacles, before or in order to make a decision about article 8 outside the Rules. The policy of the Secretary of State as expressed in the Rules is not to be ignored when a decision about article 8 is to be made outside the Rules. An evaluation of the question whether there are insurmountable obstacles is a relevant factor because considerable weight is to be placed on the Secretary of State's policy as reflected in the Rules of the circumstances in which a foreign national partner should be granted leave to remain. Accordingly, the tribunal should undertake an evaluation of the insurmountable obstacles test within the Rules in order to inform an evaluation outside the Rules because that formulates the strength of the public policy in immigration control 'in the case before it', which is what the Supreme Court in Hesham Ali (at [50]) held was to be taken into account. That has the benefit that where a person satisfies the Rules, whether or not by reference to an article 8 informed requirement, then this will be positively determinative of that person's article 8 appeal, provided their case engages article 8(1), for the very reason that it would then be disproportionate for that person to be removed.
29. That principle underpinned the applicant’s argument that if she did meet the rules, and if Article 8(1) is engaged, then the prospects of her appeal being allowed were such that her human rights claim could not rationally be described as clearly unfounded.
30. Mr Erdunast made the surprising submission that TZ (Pakistan) was no longer good law, as it is incompatible with what was subsequently held by Elisabeth Laing LJ in Alam v Secretary of State for the Home Department [2023] EWCA Civ 30. Her judgment at [6] and [113] can be fairly summarised for present purposes as holding that a full consideration of Article 8 factors must be done in every case, and that there may be factors apart from the public interest in immigration control that tell against an appellant. That authority was put forward, apparently on instructions, as meaning that an appellant must show some sort of compelling circumstances before refusal can be found disproportionate, even if they meet the rules.
31. There is, in my view, no inconsistency between the two authorities. In TZ at [34], the Senior President of Tribunals was clearly describing a scenario in which the only adverse public interest factor identified by the respondent was a failure to meet the rule, and on appeal the Tribunal had reached the opposite conclusion. This is made clear in the subsequent paragraph, where it is recommended that immigration appeal decisions be structured in a way that takes account of “those factors that weigh in favour of immigration control”.
32. The need to consider all relevant factors before treating an appeal as dispositive is also made clear in OA:
27. The significance of an appellant proving to a First-tier Tribunal judge that he or she meets the requirements of a particular immigration rule, so as to be entitled to be given leave to remain, lies in the fact that - provided Article 8 of the ECHR is engaged - the respondent will not be able to point to the importance of maintaining immigration controls as a factor weighing in favour of the respondent in the proportionality balance, so far as that factor relates to the particular immigration rule that the Tribunal has found to be satisfied.
28. Whether or not such a finding in favour of an appellant is likely to be determinative of the human rights appeal will depend upon whether the respondent has any additional reason, effectively overriding that particular rule, for saying that the effective operation of the respondent's immigration policy nevertheless outweighs the appellant's interest in remaining in this country. To take one simple example, an appellant who persuades the First-tier Tribunal that he meets the requirements of the Immigration Rules relating to entrepreneur migrants will not thereby succeed in his human rights appeal if the appellant has been found by the respondent (and the Tribunal agrees) that the appellant falls foul of one or more of the general grounds of refusal contained in Part 9 of the Rules; for example, because he made false representations in connection with a previous application for leave (paragraph 322(2)).
29. It also has to be emphasised that where the Tribunal finds that an appellant's compliance with an immigration rule is such as to require the human rights appeal to be allowed, this does not mean that the appellant is entitled, without more, to be given leave of the precise nature and duration envisaged by that rule. As was explained in Charles, the task of the Tribunal in a human rights appeal is confined to determining the sole ground in section 84(2) of the 2002 Act.
33. The mistaken argument that TZ is no longer good law arose, in my view, from the respondent mistakenly assuming that the negative outcomes for the appellants in Alam would be at all likely in a case of the type described in TZ at [34]. This is misconceived: the appellants in Alam did not meet the rules, but the appellant described in TZ at [34] does.
34. The respondent’s argument also fails to identify the source of any justification for interfering in the right to respect for family and private life once a person meets the very rules that regulate immigration and which, in this case, represent the respondent’s view of where the balance should be struck in relation to Article 8 private life.
35. Putting it another way, if someone meets the rules, and Article 8(1) is engaged, then for refusal to be proportionate there must be an identifiable factor that tips the balance against them. In the present case, Mr Erdunast was only able to identify overstaying. That could not conceivably justify dismissing the applicant’s appeal if she did in fact meet the requirements of Appendix Private Life, because the ambit of the rule expressly includes those without permission and the respondent had decided that no suitability issues arose. The illustrative example given in OA at [28] is, with respect to the Upper Tribunal, inapt – the individual described meets one of the necessary rules but fails to meet one of the others and, as confirmed in AM (Belarus) at [101]-[103], they come as a package.
Conclusion
36. The application is dismissed.
Costs
37. Following this judgment being circulated in draft, the parties were unable to agree the correct order for costs. I have considered their written representations.
38. Rule 10(3)(a) of the Upper Tribunal’s Procedure Rules empowers the Tribunal to make an order for costs in judicial review proceedings without the jurisdictional threshold of unreasonable behaviour that applies in statutory appeals. Nor, save for the overriding objective, do those rules provide any other guidance on how the Tribunal’s discretion should be exercised. It is common for this Tribunal to apply the principles arising out of the Civil Procedure Rules that govern judicial review proceedings in the Administrative Court, notwithstanding that they do not formally apply – see, for example, R. (IX) v Secretary of State for the Home Department (Judicial Review; costs) [2025] UKUT 154 (IAC).
39. The ‘general rule’ at CPR 44.2(2)(a) is that the unsuccessful party will be ordered to pay the costs of the successful party. Both parties accept that this forms the starting point and that the respondent is the successful party.
40. It is argued on behalf of the applicant that departure from the general rule is justified and that there should be no order for costs. The applicant was successful on the actual matters in issue between the parties, as confirmed at paras 26-35 above, and these had never included the decisive one week shortfall first raised by the Tribunal itself at the substantive hearing. The respondent acknowledges that she lost the arguments presented at the hearing, but that this is properly met by an order that the applicant pay only 50% of her costs.
41. I reject that the issues between the parties had always been limited to the gaps in evidence of residence discussed at paragraphs 26 and 27 above. The Detailed Grounds of Defence argued, without further specificity, that even “on the applicant’s own evidence, she has not been continuously resident in the UK for 20 years”. It has always been the respondent’s case that the evidence before her could not establish that the applicant met the requirement. As explained in this judgment, it was only at the hearing that the respondent sought to positively disavow reliance on an aspect of the chronology that was both obvious and encompassed by the respondent’s pleadings.
42. Both parties should have paid more specific attention to the obvious one week shortfall instead of becoming distracted by other issues. While the respondent’s pleadings are sufficiently broad to encompass the point, they are insufficiently detailed to meet the respondent’s duty under rule 2(4) of the Upper Tribunal’s Procedure Rules. To put it plainly, this is a feature of the case that ought to have been confronted by the parties at a much earlier stage.
43. Taking all those circumstances into account, I consider that departure from the general rule is justified. Making no order for costs would, as argued by the respondent, take insufficient account of the final (and perhaps inevitable) result in her favour, but a reduction of the costs paid by 50% is justified by the matters discussed in the above paragraph.

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