Tribunal decisions

The decision

IN THE UPPER TRIBUNAL
IMMIGRATION AND ASYLUM
CHAMBER Case No: UI-2025-000441

First-tier Tribunal No: HU/53172/2024
LH/07503/2024

THE IMMIGRATION ACTS

Decision & Reasons Issued:
On 2 March 2026

Before

UPPER TRIBUNAL JUDGE MANDALIA

Between

Ho Chung Cheng
(ANONYMITY DIRECTION NOT MADE)
Appellant
and

Secretary of State for the Home Department
Respondent

Representation
For the Appellant: Mr A Gilbert, counsel, instructed by Milestone Solicitors
For the Respondent: Ms S Rushforth, Senior Home Office Presenting Officer

Heard at Cardiff Centre on 17 December 2025
Decision and Reasons
Introduction
1. The appellant is a national of China resident in Hong Kong. On 22 November 2023, he applied for indefinite leave to remain in the UK on the grounds of 10 years continuous and lawful residence under the provisions set out in paragraph 276B of the immigration rules.  The application was refused by the respondent on 6 March 2024. In summary, the respondent was satisfied that the appellant has resided in the UK for over 10 years, however the respondent concluded that the appellant had not had at least 10 years ‘continuous residence’ as defined in the rules. Following a review of the evidence relied upon, the respondent concluded the appellant had been absent from the UK for a total of 776 days during the 10 year period. The total permitted is 548 days.
2. The appellant’s appeal against that decision was determined on the papers and dismissed by FtT judge A. E Walker (“the FtT judge”) for reasons set out in a decision prepared on 3 December 2024. Having considered the requirements of the immigration rules, the FtT judge said:
“27. It is clearly accepted by the appellant that he has been absent from the UK during the relevant 10 year period leading to his application for 26 absences and 776 days. The appellant claims that this was because he was in effect trapped in Hong Kong by Covid in 2020. He was then absent for 216 days. However, he has not supplied any information as to why he in particular was needed to look after his parents or what other arrangements could have been made or any medical information to show why they needed his care for such a long time. He has not provided any information as to what steps he took to return to the UK before he did or why he was not able to return earlier given that UK lockdowns were relaxed in the summer of 2020. Given this lack of evidence his absences must stand at 776 days which is more than 2 years absence in total. This is far in excess of the limit of 548 days set in Chang and it follows that his application for indefinite leave to remain in the UK must fail.”
3. Having found that the requirements of the immigration rules are not met, the FtT judge considered the Article 8 claim outside the rules and concluded the decision to refuse leave to remain is not an interference with any family and/or private life, but even if it is, it is proportionate to the stated legitimate aim of effective immigration control.
4. The appellant was granted permission to appeal to the Upper Tribunal by FtT judge Pickering on 29 January 2025. The appeal to the Upper Tribunal was heard by Upper Tribunal Judge Rimington on 20 August 2025. The appellant attended that hearing in person and was unrepresented. Upper Tribunal Judge Rimington set aside the decision of the FtT judge for reasons set out in an error of law decision issued on 23 October 2025. Upper Tribunal Judge Rimington noted the appellant had been absent from the UK from 9 April 2020 to 10 November 2020, a total period of 215, which, on the appellant’s account was because of restrictions on travel during the COVID pandemic. Upper Tribunal Judge Rimington referred to paragraph [27] of the decision of the FtT judge and at paragraph [22] of her decision said:
“The judge found that the appellant had been absent for 776 days. As Ms Rushforth noted the threshold is 548 and acknowledged, although did not concede, the Covid period may be relevant (215 days). Ms Rushforth’s position was that even if 215 days were subtracted the appellant would still exceed the maximum permitted absence. The decision, however, was made on 3rd December 2024 and I note that one of the absences factored into the absence picture was one of 27 days between 5th August 2014 and 2nd September 2014. That 27 days preceded the ten years on which the judge relied (as at the date of the hearing) and would take the absence to 534 days which is below the relevant threshold.”
5. Upper Tribunal Judge Rimington found there to be a material error of law in the decision of the FtT judge and set aside that decision. She directed that the decision will be remade in the Upper Tribunal. She made directions for the filing of further evidence. It is against that background that the appeal is listed for hearing before me to remake the decision in the appeal. This decision must therefore be read alongside the ’error of law’ decision of Upper Tribunal Judge Rimington.
The Hearing of the Appeal Before Me
6. The appellant has filed and served two bundles of further evidence in support of his appeal. The first comprises of 98 pages. The second bundle comprises of 52 pages; The ‘Long Residence’ published for Home Office Staff on 5 October 2023 (Version 19.0).
7. In his oral evidence before me, the appellant adopted his witness statement signed on 3 December 2025. In cross examination, he maintained that between March 2020 and November 2020, there were many factors that prevented his return to the UK. Flights were restricted during the Covid pandemic although he did not have any physical evidence of the lack of any fights at all. In answer to questions by me by way of clarification, the appellant confirmed he travelled from the UK to Hong Kong on 26 March 2020. He accepted that was within days of the national lockdown being announced in the United Kingdom, but said the flight tickets were bought by his mother and had been purchased two weeks previously, because his grandmother was not well. He said that his mother had been unable to book a return ticket at the time because of the costs of a return ticket, and the difficulty with arranging flights at that time. The appellant said he had planned to return at the beginning of July 2020 because he wanted to be able to qualify for leave to remain on grounds of long residence. He said that whilst he was in Hong Kong he and his mother were trying to book flights but were unable to do so. He claimed that he needed to return to University and was due to start his course at the beginning of September 2020. He remained in contact with the university by e-mail and lecturers were emailing work that he was missing to him. He was able to attend on-line lectures in October 2020 He accepted there was no evidence before the Tribunal to support his claim, and explained that he no longer has access to the relevant University email account and he did not think to obtain confirmation from the University.
8. In re-examination, the appellant said he could not remember when the tickets for his return to the UK in November 2020 were purchased, but he believes it was about the end of September or beginning of October 2020. The ticket was paid for by his mother. Flights and seats were limited and it was impossible to get a seat on a flight immediately, and there were also restrictions at the time regarding travel between England and Wales. There are no direct flights for travel between Hong Kong to an airport in Wales.
Submissions
9. Ms Rushforth submits the appellant cannot meet the requirement in para 2676B(i)(a) of the immigration rules that he has had at least 10 years continuous lawful residence in the UK because he has had absences of more than 548 days. She submits the appellant is not credible because he had previously mis-declared his absences from the UK to the respondent as set out in the respondent’s decision. She submits the crucial period in issue is the absence of 228 days between 26 March 2020 and 10 November 2020. That absence, combined with other absences (the 548 days), establishes a total absence of 776 days between the 10 year period between 23 November 2013 and 22 November 2023. It is only if one entirely disregards the 228 day absence that the appellant can establish that he was absent for 548 days. However, the 228 day absence cannot be disregarded entirely. The appellant chose to travel to Hong Kong following the ‘lockdown’ and now claims he was prevented from returning due to COVID restrictions implemented, the cost of flights and limited availability. The appellant relies upon the respondent’s ‘continuous residence guidance’ (version 8.0 published on 29 July 2025) that is directed to decision makes to explain how to assess the continuous residence requirements for applications for settlement. The guidance refers to travel disruption, but confirms decision makers should expect an applicant to provide evidence of how their ability to travel to the UK was affected. Here, the appellant has not provided any evidence apart from his own oral evidence that he was prevented from travelling back to the UK earlier. The appellant is unable to meet the requirements of the immigration rules. Outside the rules, Ms Rushforth submits there is nothing that tips the balance in favour of the appellant. The appellant has not demonstrated that he has established a particularly strong private life in the UK such that it would be disproportionate to refuse his application for leave to remain on Article 8 grounds.
10. In reply, Mr Gilbert adopted his skeleton argument dated 14 December 2025. He agrees the critical period of absence that falls for consideration is the 228 days between 26 March and 10 November 2020. He submits the appellant’s absence was prolonged by the pandemic. He refers to the respondent’s policy guidance; Long Residence Version 19.0, that was applicable as at the date of decision. The guidance provided a waiver for ‘excess absences in compelling or compassionate circumstances, for example where the applicant was prevented from returning to the UK through unavoidable circumstances’. The guidance requires decision makers to consider whether the individual returned to the UK within a reasonable time once they were able to do so, and the reasons for an absence. Decision makers must also consider whether a long absence happened towards the start of the 10 year residence period and if the absence was recent whether there are particularly compelling circumstances. Here, the appellant left the UK using a flight ticket that had been booked two weeks previously and before the lockdown in the UK was announced on 25 March 2020. The appellant has confirmed in his witness statement that the absence was not caused by a need to see his parents but because he was stuck in Hong Kong for a long period. His parents are old and were at higher risk of becoming seriously ill. The flights available were limited and costs increased. There were difficulties caused by restrictions on travel including travel between England and Wales as reported in the press in June 2020. Mr Gilbert submits that if the rules are not met, the evidence of the appellant is credible and there are compelling circumstances for the appellant’s inability to meet the rules. It is, in his submission, neither proportionate nor in the public interest that the appeal be dismissed on Article 8 grounds.
Decision
11. The appellant has appealed under s82(1) of the Nationality, Immigration and Asylum Act 2002 against the decision dated 6 March 2024 to refuse a human rights claim made by the appellant. The respondent refused the appellant’s application for indefinite leave to remain in the UK on the grounds of 10 years continuous and lawful residence under the provisions set out in paragraph 276B of the immigration rules.  The appellant relies on Article 8 of the European Convention on Human Rights (“ECHR”) and claims the respondent’s decision is unlawful under section 6 of the Human Rights Act 1998.
12. The burden of proof is upon the appellant to show, on the balance of probabilities, that he has established a family and/or private life and that his removal from the UK as a result of the respondent’s decision, would interfere with that right. It is then for the respondent to justify any interference caused. The respondent’s decision must be in accordance with the law and must be a proportionate response in all the circumstances.
13. I accept the appellant’s evidence that he came to the UK when he was 11 years old to study and that between 2012 and April 2020 he travelled outside the UK for school trips, holidays and for short visits to his family. He has always returned to the UK lawfully and in accordance with the leave granted to him. Although the evidence before me regarding the appellant’s private life is limited, I find that during his lengthy presence in the UK, he has established a network of friends and connections to the UK such that he has established a private life in the UK and Article 8 is engaged.
14. I find that the decision to refuse the appellant leave to remain has consequences of such gravity as to engage the operation of Article 8. I accept that the interference is in accordance with the law, and that the interference is necessary to protect the legitimate aim of immigration control and the economic well-being of the country. The issue in this appeal, as is common ground between the parties, is whether the interference is proportionate to the legitimate public end sought to be achieved.
The Immigration Rules
15. The appellant has, as Mr Gilbert submits, had successive and unbroken grants of leave to remain in the United Kingdom since 30 August 2012, extended until 5 April 2024. However, that on its own is insufficient. Paragraph 276B(i)(a) of the immigration rules as in force at the time of the application made by the appellant required him to establish that he had at least 10 years continuous lawful residence in the UK. Paragraph 276A of the rules provided:
“(a) “continuous residence” means residence in the United Kingdom for an unbroken period, and for these purposes a period shall not be considered to have been broken where an applicant is absent from the United Kingdom for a period of 6 months or less at any one time, provided that the applicant in question has existing limited leave to enter or remain upon their departure and return, but shall be considered to have been broken if the applicant:
…
(v) has spent a total of more than 18 months absent from the United Kingdom during the period in question.”
16. The appellant has provided a table of his absences from the UK during the 10 year period between 15 February 2014 to 20 November 2023 before he made his application for indefinite leave to remain on 22 November 2023. The absences recorded in that table have not been challenged by the respondent and are consistent with the absences referred to in the respondent’s decision. I find that during that 10 year period the appellant was absent from the UK for a period of 776. That is in excess of the 548 days permitted.
17. I reject the appellant’s claim that I should disregard entirely the absence of 228 days between 26 March 2020 and 10 November 2020. To disregard that entire period is in my judgement wholly inappropriate and would be to disregard the evidence before me. The appellant’s own account is that about two weeks before his departure from the UK on 26 March 2020, arrangements had been made by his mother for the appellant to return to Hong Kong for a visit. Even on the appellant’s account he therefore intended to travel to Hong Kong at about the same time as an announcement was made by the government on 16th March 2020 that “now is the time for everyone to stop non-essential contact and travel..” That announcement by the Prime Minister did not prevent the appellant travelling to Hong Kong. On 23 March 2020, the Prime Minister announced the first lockdown in the UK ordering people to “stay at home”, and the Coronavirus Act 2020 received Royal Assent on 25 March 2020. Neither of those two events prevented the appellant from continuing with his plan to travel to Hong Kong. Whilst it is understandable that the appellant would have been concerned about his parents, who are in their fifties, the difficulties with travelling abroad during a period of such uncertainty would have been obvious. In any event, even if the appellant had been able to return to the UK within, say a short period of 14 days, that would not have assisted the appellant because even then, he would have exceed the 548 period of absence permitted. It is only if the entire 228 days are disregarded, that the appellant can establish he did not exceed the 548 days of absence permitted. To do so would be to disregard the reality that even a short visit to Hong Kong would have meant that the appellant exceeds the 548 days.
18. The respondent’s guidance however provides that the 10 year period is counted backwards from whichever of the following is most beneficial to the appellant inter alia: (i) the date of application, (ii) any date up to 28 days after the date of application and (iii) the date of decision. The appellant’s application was made ‘in-time’ and he therefore benefits from section 3C leave. The respondent’s decision was made on 6 March 2024. In the 10 year period between 7 March 2014 and 6 March 2024, the appellant had been absent for a total of 768 days (by excluding the 8 days of prior absence between 15 February 2014 and 24 February 2014 from the 776 days). If one were to then exclude the entire absence of 228 days between 26 March 2020 and 10 November 2020 from that 768 days the appellant would have been absent for 540 days bringing him just below the permitted 548 days. However for the reasons that I have set out above, I am not satisfied that the entire 228 days are properly to be disregarded. The appellant’s own evidence is that he intended to remain in Hong Kong until about July 2020. He would, even on his own evidence, therefore have remained in Hong Kong for a period in excess of 8 days such that he would have exceeded the permitted absence of 548 days during that 10 year period.
19. Having considered the evidence of the appellant, I find that the appellant is unable to satisfy the requirements set out in the immigration rules, but that is not the end of the matter. The absence and reasons for the absence between 26 March 2020 and 10 November 2020 remain a relevant factor when I consider the Article 8 claim outside the immigration rules.
Article 8 Outside the Immigration Rules
20. In Hesham Ali v Secretary of State for the Home Department [2016] UKSC 60, Lord Reed emphasised that the failure to meet the requirements of the Immigration Rules is a relevant and important consideration in an Article 8 assessment because the Immigration Rules reflect the assessment of the general public interest made by the responsible minister and endorsed by Parliament. As set out by the Court of Appeal in TZ (Pakistan) [2018] EWCA Civ 1109, compliance with the immigration rules would usually mean that there is nothing on the respondent’s side of the scales to show that the refusal of the claim could be justified. At paragraphs [32] to [34], the Senior President of Tribunals confirmed that where a person meets the rules, the human rights appeal must succeed because ‘considerable weight’ must be given to the respondent’s policy as set out in the rules. Conversely, if the rules are not met, although not determinative, that is a factor which strengthens the weight to be attached to the public interest in maintaining immigration control.
21. The importance of, and weight to be given to immigration control has been underscored by Parliament in s117 of the Nationality, Immigration and Asylum Act 2002 (as amended). I accept the appellant can speak English and he has in the past demonstrated his ability to integrate into society and support himself. They are however factors that are at their highest, neutral. S117B(4) of the Act provides that little weight should be given to a private life that is established by a person at a time when the person is in the United Kingdom unlawfully and s117(5) provides that little weight should be given to a private life established by a person at a time when the person’s immigration status is precarious.
22. The appellant’s presence in the UK has throughout been lawful and I attach due weight to his private life. I note that as a student, the appellant’s leave to remain has always been time limited. Nevertheless I have considered whether refusal of leave to enter would be a “fair balance” for the purposes of Article 8(2) ECHR. In reaching my decision I have regard to all the evidence before me and carried out an evaluative assessment of the circumstances the appellant finds himself in.
23. There are factors that weigh in favour of the appellant: The appellant arrived in the UK as a child and very much to his credit, he has throughout the years exited and entered the UK entirely lawfully. The appellant was initially granted leave to enter as a Tier 4 (child) student, and his leave has been repeatedly extended. For all intents and purposes there is noting in the evidence before to suggest that absent the Covid pandemic, the appellant would have exceeded the permitted absence of 548 days during the 10 year period. Counting back from the date of the hearing before me, the appellant has provided a table setting out his absences for the 10 year period between 15 December 2015 and 20 November 2023. The appellant was absent for a total period of 633, inclusive of the 228 days between 26 March 2020 and 10 November 2020. For reasons I have already set out I cannot entirely disregard that 228 days, but I am prepared to accept the appellant’s evidence that he will have experienced at least some difficulties in returning to the UK following the ‘lockdown’ measures that came into force on 26 March 2020 following the Coronavirus Act 2020 receiving Royal Assent. I accept his evidence that he would have faced difficulty in securing a seat on a flight to the UK and that the cost of return would have been significant for the general economic reasons of ‘supply and demand’.
24. The appellant no doubt wishes to continue living in the UK, and to build upon his achievements but that does not equate to a right to do so. I am prepared to accept the appellant’s oral evidence that he wanted to return to the UK and that he had taken steps to maintain contact with his University and joined on-line lectures where possible. The appellant has completed his higher education in the UK. Factors that weigh against the appellant include (i) the fact that the appellant is unable to meet the requirements of the immigration rules, and maintains strong ties to Hong Kong where he has immediate family.
25. In my final analysis and in carrying out the balancing exercise, I have had regard to the respondent’s policy as set out in the immigration rules. I acknowledge that the maintenance of immigration control is in the public interest. Although I accept the appellant is unable to satisfy the requirements of the immigration rules, I accept that there are exceptional circumstances leading to the appellant’s inability to meet the rules. The circumstances that prevailed at and around the time of the appellant’s visit to Hong Kong in March 2020 were unique in the sense that there was a period of significant uncertainty and instability. The situation was evolving, particularly during the first three months preventing any firm plans being possible for the appellant’s return to the UK. He would then have been reliant upon the availability of suitable flights for his return. But for those difficulties, I accept the appellant would have returned to the UK earlier than November 2020. He was, I accept, keen to have been able to return to his University course but there was a delay in return because of circumstances beyond his control. In the particular circumstances the appellant found himself in, I accept that he would not have been absent for a period exceeding 548 days but for the unique compelling circumstances during the first few months of the pandemic. Standing back, I find the appellant’s protected rights, are such that they outweigh the public interest in the maintenance of immigration control in his particular circumstances.
26. It follows that in my judgement, the decision to refuse the appellant leave to remain is disproportionate to the legitimate aim and his appeal succeeds on Article 8 grounds.
Notice of Decision
27. I allow the appeal on Article 8 grounds.

V. Mandalia
Upper Tribunal Judge Mandalia

Judge of the Upper Tribunal
Immigration and Asylum Chamber

24 February 2026