Tribunal decisions

The decision

IN THE UPPER TRIBUNAL
IMMIGRATION AND ASYLUM CHAMBER
Case No: UI-2025-002613
First Tier Number: PA/63092/2023

THE IMMIGRATION ACTS

Decision & Reasons Issued:

On 5th of September 2025

Before

UPPER TRIBUNAL JUDGE BRUCE
DEPUTY UPPER TRIBUNAL JUDGE RICHARDS

Between

OROO TATE NGURUNJOKA
(no anonymity order made)
Appellant
and

Secretary of State for Home Department
Respondent

Representation:

For the Appellant: Mr Fazli, Counsel instructed by Greymore Solicitors
For the Respondent: Ms Isherwood, Senior Home Office Presenting Officer

Heard at Field House on 13 August 2025

DECISION AND REASONS

1. The Appellant is a national of Namibia (born 25 August 1983) who appeals with permission against the decision of the First-tier Tribunal to dismiss her appeal on human rights grounds.

Background and Matters in Issue

2. On the 17th March 2020 the Appellant claimed asylum in the United Kingdom. On the same date she asserted that she had in this country established family and private life rights under Article 8(1), which it would now be disproportionate to interfere with. The facts underpinning that Article 8 claim were that she and her dependent partner had lived in the UK a long time (since 2003 and 2004 respectively), and that they now had three children (born here 2016, 2017 and 2019).

3. The Respondent refused both these claims and the Appellant appealed to the First-tier Tribunal.

4. For reasons not now relevant, the First-tier Tribunal dismissed the asylum grounds of appeal. In respect of Article 8 the Tribunal made clear and reasoned findings that the Appellant has lived continuously in the UK since she arrived here in November 2003. Applying that finding to the rules the Tribunal properly directed itself to the relevant paragraph of Appendix Private Life, PL 5.1:

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.

5. Construing this to require 20 years of continuous residence at the date of application, the Tribunal correctly calculated that the Appellant fell short of this benchmark by some three years, since she had only accrued about 16½ years living here at the time that the application was made. The appeal therefore fell to be dismissed under the rules.

6. Turning, under this specific heading, to ‘Article 8 ECHR’ the Tribunal accepted that the Appellant has established Article 8 (1) rights. It found the decision to refuse leave constituted an interference with that right so as to engage Article 8. It then said this:

“ 41…I also find that such interference is in accordance with the law, and it is necessary in a democratic society in the interest of the economic well-being of the country. This interference is proportionate to the legitimate public interest, to which I give considerable weight, when I balance this with the rights of the appellant

42. I must determine for myself how a fair balance should be struck between the public and individual interests, applying a proportionality test: paragraph 28, GM (Sri Lanka) v The Secretary of State for the Home Department [2019] EWCA Civ 1630. In conducting this assessment, I adopt a balance sheet approach

43. On the public interest side of the balance sheet, I take account of the fact that the maintenance of effective immigration control is in the public interest (section 117B(1) NIAA 2002). On my findings above, the Appellant has no lawful basis for remaining in the United Kingdom and she does not meet the Immigration Rules. There is, therefore, a public interest in the Appellant’s removal.”

7. The Appellant’s appeal was thereby dismissed, the Tribunal having found that what limited weight could be placed in the Appellant’s side of the scales was insufficient to outweigh that public interest.

8. The Appellant sought permission to appeal to the Upper Tribunal and on 12th June 2025 the First-tier Tribunal (Judge McMahon) granted permission in limited terms. The sole ground of appeal before us is whether, in its proportionality balancing exercise, the Tribunal failed to have regard to the material fact that by the date of the hearing the Appellant prima facie met the requirements of PL 5.1.

Discussion and Findings

9. In OA and Others (human rights; ‘new matter’; s.120) Nigeria [2019] UKUT 00065 (IAC) the then UTIAC President Mr Justice Lane and Upper Tribunal Judge Finch considered a situation analogous with that of the Appellant. OA had come to the UK as a student, and had accrued approximately 9 years of lawful residence, in various capacities, at the date that she had made her application for indefinite leave to remain under (what was then) paragraph 276B of the Rules. Paragraph 276B required that applicants have “had at least 10 years continuous lawful residence” in the UK. Since OA had not yet reached that milestone, her application was refused. During the currency of her appeal to the First-tier Tribunal, she passed the ten-year mark. The Upper Tribunal held that in those circumstances, and absent any countervailing factors, the appeal fell to be allowed on human rights grounds. Its reasoning is captured by the headnote as follows:

1. In a human rights appeal under section 82(1)(b) of the Nationality, Immigration and Asylum Act 2002, a finding that a person (P) satisfies the requirements of a particular immigration rule, so as to be entitled to leave to remain, means that (provided Article 8 of the ECHR is engaged), the Secretary of State will not be able to point to the importance of maintaining immigration controls as a factor weighing in favour of the Secretary of State in the proportionality balance, so far as that factor relates to the particular immigration rule that the judge has found to be satisfied.

….

3. Where the judge concludes that the ten years’ requirement is satisfied and there is nothing to indicate an application for indefinite leave to remain by P would be likely to be rejected by the Secretary of State, the judge should allow P’s human rights appeal, unless the judge is satisfied there is a discrete public interest factor which would still make P’s removal proportionate. Absent such factors, it would be disproportionate to remove P or require P to leave the United Kingdom before P is reasonably able to make an application for indefinite leave to remain.

….

10. The rationale is clear. The Tribunal is tasked with determining whether the decision is unlawful under section 6(1) Human Rights Act 1998: s84(2) Nationality Immigration and Asylum Act 2002. In determining that question the Tribunal may consider matters arising after the date of the decision: s85(4) NIAA 2002. The relevant date for the purpose of any Article 8 enquiry is therefore the date of the appeal. If at the date of an appeal the claimant meets all of the relevant requirements of the rules, the Secretary of State cannot rationally point to the usual public interest in ‘the maintenance of immigration control’ (as set out at s117B NIAA 2002): absent some other reason why leave should be denied, its refusal will necessarily be disproportionate. If further authority is needed for this proposition it is found in TZ (Pakistan) and PG (India) v SSHD [2018] EWCA Civ 1109 where the Court held 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” [at 34].

11. For that reason we are satisfied that the First-tier Tribunal erred in its assessment of Article 8. Although its findings on the rules are unchallenged and undisturbed, in its final Razgar assessment the Tribunal appears to have overlooked the significance of its own findings about the length of time that the Appellant has lived in the UK. In particular it was wrong, at its paragraph 43, to have said the following: “the Appellant has no lawful basis for remaining in the United Kingdom and she does not meet the Immigration Rules. There is, therefore, a public interest in the Appellant’s removal”. As Ms Isherwood very fairly accepted, there was no reason to believe that the Appellant would, at the date of the hearing before the First-tier Tribunal, nor indeed today, be refused leave to remain on the basis of her twenty-year-plus long residence. The findings of fact made by the First-tier Tribunal are not challenged by the Secretary of State; the Secretary of State has issued a refusal letter and (for reasons that are unclear) two pre-hearing review statements, none of which raise any issues in respect of suitability etc. The Appellant had not, at the date of the Respondent’s decision, met the requirements of the rules, but by the date of the appeal she did. It follows that the appeal fell to be allowed on human rights grounds since there was nothing weighing in the Respondent’s side of the scales. We set the decision of the First-tier Tribunal aside to that extent, and substitute the decision so as to allow the appeal on Article 8 grounds.

12. Two more matters arise.

The Position of the Family Members

13. The appeal before us only related to the Appellant. We note however that both parties have proceeded on the basis that her family members, that is to say her husband and her three children, are ‘dependents’ to her claim. The origin of that designation is explained, at least in respect of the children, in the Respondent’s refusal letter dated 25 September 2023:

“With consideration to G (Appellant) v G (Respondent) [2021] UKSC 9, this claim is being considered under the Family Asylum Claims process. This is because you have confirmed that your children […] are claiming asylum in the UK on the same basis as you and you are making the claim on their behalf. The Family Asylum Claims process means that the information and evidence you have provided to us is therefore being used to determine both your claim and the claim of […]. They will however receive their own decision letter in relation to their claim”.

14. We read that as an indication that the children’s status will be resolved in line with that of their mother. With that in mind we need say little more about the arguments advanced by Mr Fazli about the First-tier Tribunal’s treatment of the length of residence of the eldest child, save to say that it is infected by the same error in approach as the decision in respect of the Appellant. By the date of the hearing the eldest child, and by the date of the First-tier Tribunal’s decision the second child, had both lived in the UK in excess of seven years. Mr Fazli submits that now that they are ‘qualifying children’ as defined by s117D(1) NIAA 2002, and their mother qualifies for leave to remain, it would not be reasonable to expect them to leave the UK, and they too would qualify under the provisions of Appendix Private Life (PL 7.1). That is we think correct, although since none of these children have an appeal before us, this would appear to be a matter for the Respondent, who will no doubt give conscientious consideration to all of the children’s Article 8 rights.

15. As to the position of the Appellant’s partner, we can see no evidence that he has ever been treated as her dependent. We would however note that subject to resolution of the childrens’ positions, he may in the final analysis benefit from the provisions of s117B(6) NIAA 2002.

Comment on PL 5.1

16. This comment is entirely obiter, since we have already disposed of the appeal and we heard no argument on this point.

17. Both parties and the First-tier Tribunal proceeded on the basis that the applicable rule, paragraph PL 5.1, required that the Applicant had reached the twenty-year mark at the date of the application.

18. The rule reads (with our emphasis):

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.

19. We note that this would, on its face, be a potentially significant change of wording from the previous incarnation of the rule on Article 8 private life, which used to be found at paragraph 276ADE(1):

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.

20. We certainly accept that in its old incarnation the rule required 20 years of continuous residence at the date of the application. We are less sure about the new version, which on a plain reading of the words simply appears to offer two alternative routes to those who are “aged 18 or over” at the date that the application is made. On the face of it, the date of application appears unrelated to either of the alternative clauses which follow that qualification. We say no more about it, other than to observe that this may be a deliberate change, introduced in recognition of the ratio in cases such as OA and Ors and TZ and PG.

Decision and Directions

21. The decision of the First-tier Tribunal is set aside to the extent identified above.

22. We remake the decision in the appeal by allowing it on human rights grounds.

23. There is no order for anonymity in this appeal.

Upper Tribunal Judge Bruce
Immigration and Asylum Chamber
14 August 2025