Tribunal decisions

The decision

IN THE UPPER TRIBUNAL
IMMIGRATION AND ASYLUM CHAMBER Case No: UI-2025-004272
First-tier Tribunal No: HU/50716/2024

THE IMMIGRATION ACTS

Decision & Reasons Issued:

On 23rd of June 2026

Before

THE HON. MR JUSTICE LAVENDER, PRESIDENT
UPPER TRIBUNAL JUDGE LANE

Between

GILBERT AQUINO MANONGDO
(NO ANONYMITY ORDER MADE)
Appellant
and

Secretary of State for the Home Department Respondent

Representation:

For the Appellant: Mr Forrest
For the Respondent: Mr Lindsay, Senior Presenting Officer

Heard at Edinburgh on 16 March 2026

DECISION AND REASONS
(1) Introduction
1. The appellant is a male citizen of the Philippines. His appeal on human rights grounds against the decision of the Secretary of State dated 19 January 2024 refusing him leave to remain on the basis of long residence was dismissed by the First-tier Tribunal by a decision dated 5 August 2025. The appellant now appeals to the Upper Tribunal.
2. In its decision, at [9], the First-tier Tribunal stated:
“The appellant’s period of continuous lawful residence in the UK has been interrupted by a number of visits made to the Philippines. It is not disputed that the maximum number of days permitted by the Rules is 548. The respondent calculates that the appellant has been absent from the UK for 575 days and the appellant contends that this figure, properly calculated, is 569. The appellant further contends that the respondent should have exercised her discretion to discount part of this period and that if she had done so, the number of days absent would have been within what is permitted.” (Our emphasis.)
3. At [14] the judge found as follows:
“I find that all of the appellant’s absences, with the exception of the Covid quarantine, were the result of his own choices and were therefore avoidable. When considering whether the respondent has properly applied the Rules in not exercising her discretion in favour of the appellant I bear in mind that I am not substituting my discretion for that of the respondent. I find that the respondent’s decision that the circumstances are not so compelling or compassionate as to warrant the exercise of discretion in the appellant’s favour is not manifestly lacking in “intelligence, common sense and humanity” as expressed in Forrester v SSHD [2008] EWHC 2307. I find that the Rules have been properly applied.”
4. Considering Article 8 ECHR at [15-6], the judge wrote:
“15. The appellant entered the UK on 7 April 2012. He has lived in the UK for most of the time since then and has provided details to the respondent of his employment and financial affairs. I find that the appellant has established a private life in the UK, notwithstanding the family life he enjoys in the Philippines with his wife and children.
16. The appellant is entirely familiar with the language, culture and way of life in the Philippines. In the event of his return to that country he will have the support of his wife and children and other members of his extended family. He claims that he would have difficulty obtaining employment, but he has shown resilience and determination in finding employment in the UK and it is reasonable to expect that he would apply the same qualities to find employment in the Philippines. I am not satisfied that there are very significant obstacles to his integration in the Philippines.”
(2) Grounds 1 and 2: The First-tier Tribunal judge erred in law by finding that: (i) the appellant did not satisfy the Immigration Rules; and (ii) the respondent had properly exercised her discretion in terms of the Immigration Rules.
5. There are three grounds of appeal. For reasons which will be clear below, we have considered grounds 1 and 2 together.
6. The appellant asserts that the judge erred by finding that the appellant did not satisfy the Immigration Rules. The appellant acknowledged (as recorded by the judge at [9]) that he had been absent from the United Kingdom for more than 18 months, but complains that the judge did not give adequate reasons for finding that, save for the Covid-related absence, the other absences were ‘the result of the appellant’s own choices.’ The appellant submits that the judge should have calculated the different absences to determine whether the 548 days threshold had been exceeded.
7. The version of the Immigration Rules in force at the material time provided:
“Long residence in the United Kingdom
276A. For the purposes of paragraphs 276B to 276D, "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.
…
Requirements for indefinite leave to remain on the ground of long residence in the United Kingdom
276B. The requirements to be met by an applicant for indefinite leave to remain on the ground of long residence in the United Kingdom are that:
(a) he has had at least 10 years continuous lawful residence in the United Kingdom.”
8. 18 months equates to 548 days. As formulated, ground 1 is mistaken. It submits that the issue before the First-tier Tribunal was whether the appellant had been outside the UK for periods of absence beyond 548 days “due to circumstances outwith his control”, but those words do not appear in the relevant Immigration Rules. Rather, the question whether the appellant had at any time been outside the UK “due to circumstances outwith his control” was relevant to the Secretary of State’s decision whether to exercise her discretion to allow the appellant’s application outside the Immigration Rules.
9. It is common ground between the parties that the appellant could not meet the requirements of paragraph 276B (read in the light of paragraph 276A(v)). The appellant’s argument relies wholly on the exercise of the discretion in his favour, notwithstanding that he had been absent for a total number of days in excess of the number permitted under the Rules. The appellant relies, in particular, on the reasons for his absences from the United Kingdom, which included his children’s illness and his grandmother’s death
10. The appellant himself acknowledges in the grounds of appeal, at [4(ii)], that an incorrect exercise of the discretion could only be challenged by way of judicial review and that the First-tier Tribunal would have no jurisdiction in respect of such a challenge. Rather, the appellant submits that the Secretary of State failed to consider whether to exercise her discretion and that the First-tier Tribunal should have had regard to that failure in determining the appellant’s human rights (Article 8 ECHR) appeal.
11. The problem for the appellant is that:
(1) the Secretary of State, in her decision letter and in her subsequent review, did consider whether to exercise the discretion; and
(2) it was never argued before the First-tier Tribunal (see the appellant’s skeleton argument before that Tribunal) that the discretion had not been considered at all, but, rather, that the outcome of the Secretary of State’s consideration whether to exercise the discretion should have been different.
12. The First-tier Tribunal judge’s response to that submission appears at [14] of the First-tier Tribunal’s decision, quoted at [3] above. We consider that the reasons given by the judge were adequate. The appellant’s submission confuses the question whether the appellant had good reason to travel to the Philippines with the question whether he chose to do so.
13. Moreover, the refusal letter states:
“In considering your application it was considered whether the exercise of discretion was appropriate as you could not demonstrate 10 years lawful residence. …
… on both occasions you had planned to travel to the Philippines for family visits which is common throughout your absent history, these absences are not considered an exception circumstance. For your absences in December 2016, you explain that your presence was required for much longer due to the challenges from typhoon Bopha. In response the typhoon happened a number of years earlier and therefore this would not be considered an exception circumstance.”
“For your visit in December 2020 and again in December 2021, you could not return to the UK due to travel restrictions imposed by the COVID-19 pandemic. On 13 December 2020 and again on 20 December 2021 you made the decision to continue to travel in the full knowledge, that the global situation with regard to travel was more than a little uncertain. In a situation where you would have been aware that there was likely to be a significant disruption, we cannot accept that it was an unforeseen circumstance.
It is considered that the permitted maximum of 548 days or 180 days for any one period of absence under the Immigration Rules is generous and designed to meet a number of eventualities. It is therefore considered that yours is a case where the exercise of discretion is not appropriate. For the reasons outlined above, your application for indefinite leave to remain on the grounds of long residence is refused as you have failed to meet the requirements of the Immigration Rules under Paragraph 276D with reference to Paragraph 276B(i)(a).”
14. We have no hesitation in finding that the passages which we have quoted unequivocally represent a consideration by the Secretary of State whether to exercise the discretion. Likewise, the Secretary of State’s review of 20 May 2024, at [13-17], addresses this issue in detail.
15. As the Upper Tribunal noted in Marghia (procedural fairness) [2014] UKUT 366 (IAC), at [10], it is a matter for the Secretary of State whether she exercises her residual discretion:
“That exercise of such residual discretion, which does not appear in the Rules, is absolutely a matter for the Secretary of State and nobody else, including the court (Abdi [1996] Imm AR 148).”
16. Despite acknowledging the accuracy of that proposition, the appellant continues to criticise the manner in which discretion had been exercised. Grounds 1 and 2 are without merit.
17. The appellant applied for permission to adduce fresh evidence, namely a statement made by him dealing with the circumstances of his absence from the UK between December 2020 to March 2021. This is evidence which he could have provided to the First-tier Tribunal. In any event, it merely provides further detail of the reasons why his return to the United Kingdom from his visit to the Philippines was delayed, a matter which was already addressed in his first witness statement and which was considered by the Secretary of State in one of the passages which we have cited. We note also that, having returned from that visit to the Philippines, the appellant chose to leave the United Kingdom again in December 2021.
(3) Ground 3: The First-tier Tribunal erred in law by finding that a fresh application was likely to succeed.
18. Ground 3 reads:
“Article 8 ECHR: although the FTT carries out a careful balancing exercise (paragraphs 18 -20), it has erred in concluding that a fresh application is likely to succeed (third part of paragraph 20. The new (post 11/4/24) rules on long residence appear to exclude a person such as the appellant (LR 1.1) and in any event it does not seem correct to conclude that no 548 absence rule will apply. According to Rule CR 3.2 (in the new Long Residency Appendix) that rule appears still to apply (to periods before 11th April 2024).”
19. In his decision, at [20], the First-tier Tribunal judge sets out the factors weighing in favour of the appellant in the Article 8 ECHR assessment. Those factors include: ‘The current Rules do not include the 548 days maximum absence requirement, and the appellant is likely to meet the requirements of a fresh application. I attach some weight to this consideration.’
20. It is difficult to see how, even if the judge has erred in law as asserted in Ground 3, that would make any difference to the outcome of the appeal. The change in the Rules was a factor weighing in favour of the appellant, who was nonetheless still unable to succeed on Article 8 ECHR grounds. If the change in the Rules was instead now counted against him or was omitted entirely from the assessment, the appellant would still lose.
21. Finally, we note the submission before us that the First-tier Tribunal may have erred in law by failing to apply ‘2025 Guidance.’ We agree with the Secretary of State that any challenge on that basis is without merit. The said Guidance was not referred to in the grounds of appeal and no permission has been granted in respect of it, nor was it before the First-tier Tribunal, which cannot be criticised for having failed to consider it.
(4) Conclusion
22. For the reasons we have given, the appeal is dismissed.

Notice of Decision
This appeal is dismissed.

C. N. Lane

Judge of the Upper Tribunal
Immigration and Asylum Chamber

Dated: 15 June 2026