Tribunal decisions

The decision

IN THE UPPER TRIBUNAL
IMMIGRATION AND ASYLUM CHAMBER
Case No: UI-2025-002096
PA/64704/2023

THE IMMIGRATION ACTS

Decision & Reasons Issued:

On 10th November 2025

Before

DEPUTY UPPER TRIBUNAL JUDGE ZUCKER

Between

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Appellant
and

ANA ROSA GARIN VIZCARRA
(Anonymity Order not Made)
Respondent

Representation:
For the Appellant: Ms Fingland of McGlashan MacKay Solicitors
For the Respondent: Ms L Clewley, Senior Home Office Presenting Officer

Heard at Field House on 30 October 2025

DECISION AND REASONS

1. This is an appeal brought by the Secretary of State for the Home Department (“SSHD”) against the decision of the First-tier Tribunal of 2 April 2025 whereby although the appeal of Mrs Vizcarra, now aged 78, against the decision of the SSHD to refuse her international protection claims (upon which her husband, now aged 80 was dependant), the appeal was allowed on human rights grounds (Article 8).

2. Mrs Vizcarra is a citizen of Chile. A helpful summary of the basis upon which she advanced her appeal is set out in the Decision and Reasons of the Judge of the First-tier Tribunal, which I set out below:

“[Mrs Vizcarra] and her husband came from Santiago to the UK on 29 December 2019. They shared a holiday in Morocco with their daughter, Ana, and then in Tenerife with the daughter, Catherine. Whilst remaining in the UK the breakout of Covid meant all flights were cancelled so [Mrs Vizcarra] could not return to Chile. As time went on, [Mrs Vizcarra] noted that the violence was becoming worse in Chile. Both [Mrs Vizcarra] and her husband had physical problems. [Mrs Vizcarra] fell in her daughter’s house and fractured her pelvis in September 2020. She said that their grandson, who was a journalist, kept sending them information and reports that it was getting very frightening and dangerous so that she began panicking about returning to Chile. They claimed asylum on 11 March 2022. [Mrs Vizcarra’s] husband has had two knee replacements since he has been in the UK. He is blind in one eye. They both require prescribed medication. Although not mentioned in her own statement, [Mrs Vizcarra’s] daughter mentions in her statement that her mother got Covid which caused a deterioration to her health. [Mrs Vizcarra] asserts that they would be at risk on return due to their age, making them as elderly persons members of a particular social group vulnerable to violence and kidnapping in Chile.”

3. The Judge found that there were more than the usual emotional ties that one would expect between adults and their offspring, with Mrs Vizcarra and her husband relying on their daughters in the United Kingdom for emotional and other forms of support.

4. Having found neither the asylum nor humanitarian protection aspects of the appeal made out the judge did not find that there were very significant obstacles to return to Chile. In those circumstances the requirements of paragraph 276ADE of the immigration rules, then applicable, were not made out. The Judge found no obstacles to reintegration.

5. The Judge then went on to state, “In terms of the balancing exercise, for the [SSHD], the Immigration Rules are not met and that is a significant factor against [Mrs Vizcarra].

6. The Judge then completed the assessment of the merits of the appeal, having considered section 117B of the Nationality, Immigration and Asylum Act 2002 by stating:

“58. For [Mrs Vizcarra], whilst I have found that they would not be the victims they claim simply by returning to Chile, it is clear that she, her husband and all the family fear for them and desire them to remain in the UK where there will be no concerns. [Mrs Vizcarra’s] daughters in the UK provide support and will continue to do so.
59. A considerable period has passed since the arrival of [Mrs Vizcarra]and her husband at the end of 2019. I accept that their physical conditions have deteriorated through illness, accident and age. They are now aged, respectively, 78 and 79. During this time, close relationships have continued to develop between [Mrs Vizcarra], her husband, their daughters, in-laws and grandsons in the UK. The whole family in the UK will be adversely affected by the removal of [Mrs Vizcarra] and her husband to Chile.
60. Whilst I find it is in the public interest that [Mrs Vizcarra] and her husband be removed, I also find that there are compelling and compassionate circumstances which make the [SSHD’s] refusal for them to remain in the UK disproportionate, resulting in unjustifiably harsh consequences for them and their family members in the UK”.
7. Not content with the decision of the First tier Tribunal, by Notice dated 2 April 2025 the SSHD made application for permission to appeal to this, the Upper Tribunal. In essence the grounds were as follows.

The Judge:
(i) made no finding of additional ties beyond what would normally be expected between extended family members, or between adults and their parents, as set out in Kugathas v Secretary of State for the Home Department [2003] EWCA Civ 3;
(ii) erred in applying a finding of exceptional rather than very compelling circumstances;
(iii) failed to give adequate weight to the public interest in protecting the economic well-being of the UK, as set out at s.117B of the Nationality, Immigration and Asylum Act 2002. There is no evidence that the appellant’s have sought to minimise the burden of their treatment on the taxpayer.
8. Ms Clewley, somewhat hampered by the Grounds as drafted, is to be given credit for doing her very best with them. This appeal illustrates the importance of those drafting Grounds of Appeal ensuring that what is drafted reflects the argument that it is intended to advance. Ms Clewley did not draft the Grounds.

Ground one
9. Ms Clewley spent some time in her submissions to me pointing to what she contended were inadequate reasons. However, that is not what is pleaded in the Ground. For Mrs Vizcarra, in argument before me, and in the Rule 24 Notice, it was submitted that there was no merit in the Ground. The Judge, it was submitted, had plainly made a finding. Reliance is placed on paragraph 46 of the Decision where the Judge stated:

“The first question is whether family life exists. On hearing the evidence, I find that there are more than the usual emotional ties one would expect between adults and their offspring. [Mrs Vizcarra] and her husband rely on their daughters in the UK for emotional and other forms of support. They are in touch daily and receive regular visits from them during each week. This support is described in the daughters’ statements, see in particular pages 170 to 171 and pages 175 to 176.”

10. I agree with Ms Fingland, the Ground is plainly without merit. Contrary to what is pleaded in the grounds a clear finding was made. The grounds do not invite this Tribunal to consider the adequacy of those reasons, and I do not do so.

Ground two
11. Ms Fingland submitted that there was no merit in this Ground because the test of “very compelling circumstances” applies to the consideration of foreign criminals only. Of note the SSHD in the Review before the First tier referenced “exceptional” rather than “very compelling” circumstances. When pressed on the point Ms Clewley was unable to point to any authority which would support the contention that it was “very compelling” rather than “exceptional” circumstances that fell to be considered. Though it is of note that at paragraph 60 of her Decision, the judge used the word “compelling”.

12. However, undeterred, Ms Clewley sought to persuade me that the Judge had failed fully to self-direct herself having regard to the guidance in Agyarko v SSHD [2017] UKSC 11. Ms Clewley submitted that the Judge needed to consider if the exceptional circumstances would amount to “unjustifiably harsh consequences”. If that were to have been the basis upon which the matter was to be brought before this Tribunal then again, it should have been pleaded. It was not. In any event the Judge, at paragraph 16 of the Decision directed herself in stating:

“If an appellant does not meet the Immigration Rules, the public interest is normally in refusing leave to enter or remain. The exception is where refusal results in unjustifiably harsh consequences for the appellant or a family member such that refusal is not proportionate”.

13. As with Ground 1 what Ms Clewley sought to argue and what is pleaded are not the same. The Ground as drafted is without merit. However it is of note that at paragraph 60 of the Decision the judge used the term, “unjustifiably harsh”.

Ground 3
14. Section 117B, embraced by the cross heading "Article 8: Public Interest Considerations Applicable in All Cases", provides:

(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.”

15. At paragraph 55 of her Judgement the Judge stated:

“I am unaware whether the appellant or her husband can speak English. It appears that they are financially independent, that is, supported by their own funds and that given by family members, although she and her husband will be eligible for certain Clewley benefits from the government if they have leave to remain which will be a drain on public funds. These factors are, in any event and according to guidance, neutral”.

16. Exception was taken by Ms Clewley to the apparent statement that resorting to public funds was “neutral”.

17. Certainly, the speaking of English and financial independence are neutral factors: (see AM (S117B) Malawi [2015] UKUT 260 (IAC) approved of in Rhuppiah [2018] UKSC 58). However, the decision is to be read as a whole. I do not see the Judge to be saying that resorting to public funds is neutral. The comma after the word, “members” in the second sentence makes it clear that it is the ability to speak English and be financially independent which are the neutral factors but the Judge notes in that same paragraph and gives weight to the fact that some benefits may come the way of Mrs Vizcarra, as may access to the NHS. Further consideration is given to this at paragraph 57 of the Decision where the judge fully acknowledges the reliance on the NHS by Mrs Vizcarra and her husband. Read as a whole, the judge has carried out an holistic assessment required in a proportionality assessment including the statutory considerations set out in paragraph 117B and made a finding of fact which, though many judges might not have made, was open to her i.e. that the public interest in this case has been outweighed by the private ones .

DECISION

18. The appeal to the Upper Tribunal is dismissed. The Decision of the First tier Tribunal shall stand.

Deputy Judge of the Upper Tribunal
Immigration and Asylum Chamber

Dated: 31 October 2025