Tribunal decisions

The decision

IN THE UPPER TRIBUNAL
IMMIGRATION AND ASYLUM CHAMBER
Case Nos: UI-2022-006334
& UI-2023-001768

First-tier Tribunal Nos:
HU/56946/2021 & IA/16086/2021
HU/56948/2021 & IA/16081/2021

THE IMMIGRATION ACTS

Decision & Reasons Issued:
On 18 July 2025

Before

UPPER TRIBUNAL JUDGE RINTOUL
DEPUTY UPPER TRIBUNAL JUDGE JOSHI

Between

Qinying Chen (1)
Cheuk Ki Ho (2)
(NO ANONYMITY ORDER MADE)
Appellants
and

The Secretary of State for the Home Department
Respondent

Representation:
For the Appellants: Mr R McKee, instructed by David Tang & Co Solicitors
For the Respondent: Mr E Terrell, Senior Home Office Presenting Officer

Heard at Field House on 24 March 2025

DECISION AND REASONS
1. The appellants appeal against the decision of the Secretary of State to refuse them further leave to remain in the United Kingdom on 2 November 2021. And to refuse their human rights claim. The appellants are citizens of the Hong Kong Special Administrative Region of China. The first appellant was born on 9 June 1974; the second appellant was born on 22 June 2003. They are mother and daughter. The first appellant came to the United Kingdom as a visitor on 11 August 2020, the second appellant had arrived earlier on 10 November 2019 with leave as a Tier 4 (General) Student.
2. On 8 February 2021, the appellants applied in time for further leave to remain on the basis of an application under Appendix FM that the first appellant wished to remain permanently in the United Kingdom as the partner of Sunny Sang-Yau Lai (“the sponsor”) a British citizen. The second appellant wished to remain as her dependant.
3. On 2 November 2021, the respondent refused the applications on the basis that the first appellant had not shown that she met the definition of “partner” due to a lack of evidence of residence together for two years. The application was also refused on EX.1 grounds and on private life (paragraph 276 ADE(1)) grounds. This consideration was under the 10-year route.
4. It must be remembered that at the time the applications were made, the COVID pandemic was continuing, and frequently changing travel restrictions were in place. It must also be recalled that from time to time the respondent had put in place policies to assist those who would ordinarily have been expected to return to their country of nationality or residence to apply for further leave to remain or to switch category of leave. We refer to these as the Coronavirus Regulations.
5. There is a somewhat complex history to these appeals. On 8 August 2022 First-tier Tribunal Judge Cameron allowed the appeals. On 1 February 2023 permission to appeal to the Upper Tribunal was granted by First-tier Tribunal Judge Boyes and this was followed by a Rule 24 response submitted by Mr Mckee.
6. On 11 April 2023 the appeal came before Upper Tribunal Judge Lindsley, who set aside the decision of the First-tier Tribunal and gave directions for the appeals to be reheard before her. On 4 July 2023 Judge Lindsley heard the remaking and for reasons set out in her decision of 17 July 2023 dismissed the appeals. There was then a successful application for permission to appeal to the Court of Appeal. Subsequent to that, the matter was permitted by consent to the Upper Tribunal on 2 October 2024 and it is on that basis that the appeals came before us.
7. In summary, it is not in dispute (and the First-tier Tribunal found) that all the requirements of the Immigration Rules were met save for the fact that the first appellant was present in the United Kingdom as a visitor, having entered on 11 August 2020:
3. The following matters are preserved from the decision of the First-tier Tribunal: that the first appellant’s relationship with her British citizen partner is genuine and subsisting as recorded at paragraphs 14 and 26 of the decision; that the first appellant has passed the relevant English language test as set out at paragraph 27 of the decision; and that there is a family life relationship between the second appellant, first appellant and sponsor as found at paragraphs 32 and 36 of the decision.
In her remaking decision Judge Lindsley also found:
17. The appellants’ case is that they meet the requirements of the five year route under the Immigration Rules at Appendix FM, and so their removal would be a disproportionate interference with their Article 8 ECHR rights as there is no public interest in their removal. They do not argue that they can succeed in their appeal by showing that there would be insurmountable obstacles to family life and thus by showing they can meet the requirements of the 10 year route of Appendix FM of the Immigration Rules, or indeed in relation to the private life Immigration Rules.
18. As per the preserved findings from the First-tier Tribunal the first appellant and sponsor have a genuine and subsisting relationship and the first appellant has passed the relevant English language test. Mr McKee argues that there was no prohibition against switching from visitor status due to the suspension of this requirement via the Coronavirus guidance, and that the financial provisions of Appendix FM and Appendix FM-SE are met. Mr Basra did not submit that the first appellant had not met these ﬁnancial requirements, and I find that they are indeed met at all three points in time: the date of application, the date of decision and at the date of hearing on the basis of the bank statements and translation produced before the Upper Tribunal.
19. The key question for this Tribunal is whether the first appellant is entitled to succeed in her appeal on the basis that she met the totality of the respondent’s policies (Immigration rules Rules combined with Covid 19 guidance) at the date of decision 'When ordinarily she clearly would not be entitled to succeed as she would fail to meet the Eligibility for limited leave to remain as a partner requirements as she would fail to meet the Immigration Status Requirements at E-LTRP2.1 not to be in the UK as a visitor.
8. Judge Lindsley dismissed the appeals on the basis that although there was a policy applicable to the first appellant [20] that applied when the applications had been made, that was not the case [21] at the date of decision. It is, however, now agreed between the parties that in addition to that policy, there was in fact a separate policy which had not been drawn to the attention of Judge Lindsley with whom we have significant sympathy as a result.
9. In summary, there was a Family Policy issued on 11 October 2021 which provided as follows:
“Any visitor whose period of leave expires beyond 31 August 2020 is still allowed to make their application from within the UK where they would usually need to apply for a visa from their home country on a limited, case by case basis until 30 June 2021. We will expect applicants to prove that their application is urgent or for them to provide a valid reason why they cannot apply from outside the UK as a result of COVID-19.”
10. It is at this point sensible to consider how, at various times, Hong Kong dealt with the COVID-19 pandemic and the restrictions it put in place. Materially, in December 2020 in response to developments in the United Kingdom, Hong Kong barred all arrivals from the United Kingdom such that anybody who had been in the United Kingdom in the fourteen previous days prior to arrival in Hong Kong was barred from entry. It was others who had to undergo a 21-day quarantine rule for those coming from the United Kingdom. The extract provided by the appellants from Wikipedia is misleading in that respect and it is disturbing that they should have relied on extracts from Wikipedia rather than the very easily publicly available documents provided by the Hong Kong government, which makes their position abundantly clear. Whereas this was only clear from the footnotes to the Wikipedia article.
11. The article reads:
“Currently, persons who arrive at Hong Kong via the airport from specified high risk places under CAP.599H including the UK and are subject to compulsive quarantine needed to present a negative result of a nucleic acid test, so COVID-19 done within 72 hours before flight and accords that:
‘The current so CAP.599H will be tightened so that all persons who have stayed in the UK for more than two hours in the past fourteen days (including Hong Kong residents) will not be allowed to board for Hong Kong’.”
This remained in place until April 2021.
12. When the Hong Kong government allowed an orderly return of relevant Hong Kong citizens from London, on two designated flights and only upon production of a full test conducted within 72 hours before their scheduled timed departure for the aircraft. This was an exception to the ban on all people arriving from the United Kingdom within fourteen days prior to seeking to enter Hong Kong.
13. It was only in, it appears, January 2022 that the situation was changed.
The Hearing on 24 March
14. We heard submissions from both representatives. Both of whom provided us with skeleton arguments.
15. Mr Terrell relied upon his skeleton argument, thus submitting that there was no dispute that they cannot meet the requirements of the Rules and that it would not be in the public interest to waive the need for requirement. He accepted that where a person is able to meet the requirement of the Immigration Rules it follows that it would be disproportionate to remove them, but that did not apply in the case of policy guidance, even if it were applicable, as is argued here. He relied on AG and others (Policies; executive discretions; Tribunal’s powers) Kosovo [2007] UKAIT 00082 and that the Tribunal may consider whether the terms of a policy “tell generally in favour of non-removal”. We observe as an aside that these appeals are not concerned with removal at all.
16. Mr Terrell submitted that there would not appear to have been any legal or practical possibility of the appellant returning to Hong Kong to make an entry clearance application, albeit that submission was made in understandable ignorance, the actual position regarding individuals in the UK in Hong Kong, a matter which could and should have played a more prominent place in the appellants’ submissions.
17. Mr McKee relied on his skeleton argument, submitting that, properly understood, the family policy was such that the appellant ought to have been granted leave and that none of the factors set out in Section 117B provide negatively of this case, given that the relationship between the appellant and sponsor had pre-existed on arrival in the United Kingdom by some years.
18. We reserved our decision.
The Law
19. “117B Article 8: public interest considerations applicable in all cases
(1) The maintenance of effective immigration controls is in the public interest.
(2) It is in the public interest, and in particular in the interests of the economic well-being of the United Kingdom, that persons who seek to enter or remain in the United Kingdom are able to speak English, because persons who can speak English—
(a) are less of a burden on taxpayers, and
(b) are better able to integrate into society.
(3) It is in the public interest, and in particular in the interests of the economic well-being of the United Kingdom, that persons who seek to enter or remain in the United Kingdom are financially independent, because such persons—
(a) are not a burden on taxpayers, and
(b) are better able to integrate into society.
(4) Little weight should be given to—
(a) a private life, or
(b) a relationship formed with a qualifying partner,
that is established by a person at a time when the person is in the United Kingdom unlawfully.
(5) Little weight should be given to a private life established by a person at a time when the person’s immigration status is precarious.
(6) In the case of a person who is not liable to deportation, the public interest does not require the person’s removal where—
(a) the person has a genuine and subsisting parental relationship with a qualifying child, and
(b) it would not be reasonable to expect the child to leave the United Kingdom.”
20. Paragraph E-LTRP.2.1. provides:
The applicant must not be in the UK-
1. (a) as a visitor; or
2. (b) with valid leave granted for a period of 6 months or less, unless that leave is as a fiancé(e) or proposed civil partner, or was granted pending the outcome of family court or divorce proceedings
Our Findings
21. It is not in dispute that the first appellant does not meet the requirements of the Immigration Rules because she has leave as a visitor.
22. Although neither of the representatives directed us to Chikwamba v SSHD [2008] UKHL 40, as explained in Hayat (nature of Chikwamba principle) Pakistan [2011] UKUT 00444 (IAC) and more recently in Butt v SSHD [2025] EWCA Civ 189 we bear in mind the relevant principles.
23. We bear in mind also that we are here dealing with a policy and, in internalising the relevant principles, we pay close attention to the recent decision of the Upper Tribunal in R (on the application of Gurung) v SSHD (ACRS meaning - policy interpretation principles) [2025] UKUT 90. In this case the readership of the policy is clearly, apart from caseworkers, those affected by it, that is those who could not return to their countries easily during the COVID period. We bear in mind also that this policy had a purpose, which was to allow people who could not easily go to make an application from abroad to do so from inside the United Kingdom. There were, as we accept, several changes to the relevant policy in a fast-moving environment and it is necessary to give effect to their policy.
24. The policy is expressed in fairly expansive terms. It refers to “any visitor” and there is no express reference to undue hardship or difficulties over and above a requirement to prove either that the application is urgent or to provide a valid reason why they cannot apply from outside the United Kingdom.
25. In this case we find that it would have been very difficult indeed for the first appellant to return to Hong Kong to make an application. First, she could not have flown directly to Hong Kong from the United Kingdom due to the restrictions imposed and second, she would need to have to have found a country:
a. which permitted her to enter although not being a national;
b. to have stayed there for a period in excess of fourteen days; and
c. would have been acceptable to the Hong Kong authorities as being somewhere she could stay to “rinse” her UK Covid status.
26. Moreover, there would have been significant risk in a changing environment of these parameters changing whilst she was in another country and it appears from the material that some of those countries which did permit her flights, residents of which were entitled to enter Hong Kong such as Australia and New Zealand, also had their own barriers in place. And, it needs to be borne in mind, that it may well have been the case that the appellant would have had to apply for a visa. She could not, although being a citizen of the People’s Republic of China, have returned there with any ease.
27. We consider that this was a valid reason for not returning.
28. It did not, however, follow necessarily that this is a sufficient basis on which to allow the appeal. We have to bear in mind Section 117B and the checklist of factors to be borne in mind.
29. In terms of factors which are in the first appellant’s favour, we note that she met all the requirements of the Immigration Rules save for not being here for that period as a visitor. There are clearly ample funds and savings in excess of £300,000 which means she is not going to be a burden on the state. She speaks English and the relationship between her and her partner predates her arrival in the United Kingdom as a solid, genuine relationship by several years. She will be accommodated and there is no indication that she has been in breach of the Immigration Rules.
30. In terms of factors which tell against her, we accept that there is a strong public interest in ensuring that the requirements of the Immigration Rules are met. But, in this context, we bear in mind also that the public interest is not a fixed point. Policy decisions had clearly been taken, as is shown by the existence of this policy, and the Coronavirus Regulations that there were circumstances in which it was considered that the public interest did not require somebody to go out of the United Kingdom to make an application for permission to return. Indeed, in this case, the first appellant met those criteria for a significant period while her application was pending. There are of course good policy reasons why one would have to do so where, for example, someone has previously been in breach of the Immigration Rules or there are other negative factors which would require detailed investigation. There is no indication that that was necessary here.
31. We bear in mind that this appellant, because of the particular requirements relating to Hong Kong, in effect barring return of residents, as opposed to other countries, was in a very difficult position. Being a resident of Hong Kong, and thus a citizen of the People’s Republic of China, places difficulties on her getting access to other countries where she could rinse her status. What would ordinarily have been a relatively straightforward process to someone in her position and with her resources has taken a number of years and it is difficult to see what advantage she would have got by this.
32. Taking all of these factors into account and weighing them, we find on the particular facts of this case, and bearing in mind in particular, but at several points during the continuation of the appellants’ visa being looked at, she clearly fell within the terms of a pre-existing policy, her requirement to leave the United Kingdom and return to Hong Kong to make an application for entry clearance would be disproportionate.
33. We therefore allow the first appellant’s appeal on Article 8 grounds. We also allow the second appellant’s appeal in line.
Notice of Decision
(1) The decision of the First-tier Tribunal involved the making of an error of law and we set it aside.
(2) We remake the appeals by allowing them on article 8 grounds.

Signed Date: 18 July 2025
Jeremy K H Rintoul
Judge of the Upper Tribunal