Tribunal decisions

The decision

IN THE UPPER TRIBUNAL
IMMIGRATION AND ASYLUM CHAMBER
Case No: UI-2025-004434

First-tier Tribunal No: PA/63658/2023
LP/03309/2024

THE IMMIGRATION ACTS

Decision & Reasons Issued:
On 29 November 2025

Before

DEPUTY UPPER TRIBUNAL JUDGE KUDHAIL

Between

MYRNA RAMOS TUASON
(NO ANONYMITY ORDER MADE)
Appellant
and

THE SECRETARY OF STATE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: Mr Bellara, Counsel instructed by MBM Solicitors
For the Respondent: Ms Clewley, Senior Home Office Presenting Officer

Heard at Field House on 19 November 2025

DECISION AND REASONS
1. The appellant appeals with permission against the decision of First-tier Tribunal Judge Malcolm promulgated on 02 June 2025, in which the appellant’s appeal against the respondent’s decision to refused her asylum and human rights claim dated 21 November 2023 was dismissed.
2. The First-tier Tribunal did not make an anonymity order and I saw no reason to make one either.
Background
3. The appellant, a citizen of the Philippines, applied for asylum on 19 July 2021 citing fear of her abusive husband in the Philippines. The application was refused leading to the appeal before the First-tier Tribunal. At the First-tier Tribunal, the appeal was solely pursued under Article 8 ECHR, focusing on family life as a carer and private life based on long residence in the UK.
4. Judge Malcolm dismissed the appeal, finding the appellant has lived in the UK since 2005, mostly unlawfully after overstaying her visit visa. She accepted the appellant has been working as a live-in carer for Mrs Levy since January 2023 under a formal employment contract. She was satisfied the appellant developed a close relationship with Mrs Levy (who has dementia) and Mr Levy, she is regarded as a family member by them. Despite this, the Judge found the relationship remains primarily that of an employee, as she is paid and requires wages for her livelihood. The Judge considered the guidance in Lama [2017] UKUT 00016 [IAC], concluding the circumstances differ significantly. She accepted dependency exists, but not to the degree required to establish 'family life' under Article 8 ECHR. The presence of another carer on weekends and the possibility of replacing the appellant were factors weighing against the appellant’s claim that her care was irreplaceable. When considering private life, she looked to the Immigration rules concluding there were no very significant obstacles as the appellant maintained contact with family in the Philippines. The Judge accepted removal would affect the Levy family, however determined this did not amount to exceptional circumstances outweighing public interest.
The appeal
5. Permission to appeal was granted on two grounds:
(a) Ground 2- the Judge did not give anxious scrutiny to the medical evidence, when considering impact upon the appellant and the Levy’s, when finding there was not family life as alternative care was available;
(b) Ground 3: the Judge misdirected herself on the law as she did not consider the care provided by the appellant to the Levy’s through the Private Life lens and thereby did not consider if refusal of leave would result in unjustifiably harsh consequences for the Levy’s.
The Hearing
6. Ms Clewley confirmed no rule 24 response had been filed by the respondent.
7. Mr Bellara submitted that the short determination was incomplete as the Judge had not considered that the appellant’s private life could overlap with family life. The Judge did not consider the appellants private life outside the Immigration rules. He submitted that at Paragraph 72 the Judge finds Mrs Levy would be affected if the appellant was to leave her employment, however she failed to give reasons of what the impact would be despite having evidence before her from Dr Noimark and Mr Levy. Mr Bellara referred to paragraph 25-26, where the Judge sets out the oral evidence of Mr Levy. He argued this evidence was critical to the question of impact. He argued that from paragraph 73, the Judge considers private life and does not consider this.
8. Ms Clewley, submitted there was no error of law as there was a distinction between family life and private life. The Judge had considered the impact on the family within the context of exceptional circumstances when considering family life. She submitted within the private life finding the Judge considered the appellants overstaying and whether there would be very significant obstacles. The Judge found that given there was another carer for one evening and 12 hours on a Sunday, that alternative care was possible.
9. She argued even if the Judge did not conduct the balancing exercise under private life, she had done so under family life and found (a) alternative care was possible, (b) there would be a period of adjustment and (c) that dementia and the associated care arrangements were not exceptional circumstances, thus the balancing exercise had been undertaken by the Judge.
10. I raised with Ms Clewley to identify where the Judge applied the principles as per R (Razgar) v SSHD [2014] UKHL in the context of the acceptance of private life, particularly as the Judge did not find there was a family life in existence. Ms Clewley accepted the Judge does not appear to have given consideration to exceptional circumstances outside the Immigration rules. She submitted that this was not material as this was considered elsewhere in the determination under family life considerations.
11. Mr Bellara submitted that Razgar had not been referred to in determination and the Judge had not followed the five stage approach to considering article 8 claims outside the Immigration rules. He argued Mr Levy’s evidence was critical, as he gave evidence about his own significant medical needs as well as those of his wife, resulting in significant impact. The medical evidence of Dr Noimark was a consultants letter and it was not given weight. He argued the Judge had not conducted a the balancing exercise by weighting competing factors as she had not found a family life existed and had not considered this at all within the considerations of private life. This he submitted, was an error of law.
Findings and reasons
12. The Judge’s decision from paragraphs 54-72, considers the evidence of the appellant and the Levy family. The Judge makes findings of fact with regards to the nature of their relationship and whether this constitutes a family life. Ultimately finding despite dependency, she was not satisfied this amounted to family life as per Article 8(1) ECHR.
13. The grounds raise that the Judge did not apply anxious scrutiny when considering the medical evidence and the evidence of Mr Levy, when determining if family life exists. At paragraph 72, the Judge considers the evidence of Dr Noimark and discounts this on the basis that it is not expert evidence and he did not consider alternative care provision. Dr Noimark’s report is written as a treating clinician, he identifies Mrs Levy’s medical condition and symptomology. He also sets out his observations of the relationship between the appellant and Mrs Levy including her dependence upon the appellant due to memory issues caused by her dementia. In doing so, he refers to alternative carers who are employed by the Levy’s. He refers to the appellant as a vital part of her support. Mr Levy gave oral evidence before the Judge, setting out the part the appellant plays in their lives and how reliant they are upon the appellant. In view of the nature of this evidence, it was incumbent upon the Judge to set out reasons why she did not attach weight to it. This evidence was material to the live issues given the Judge was considering the nature of the relationship within the prism of dependency beyond normal emotional ties, when determining if family life exists. This is an error of law.
14. From paragraph 73-74, the Judge considers the appellant’s private life within the Immigration rules and finds there are no very significant obstacles. From paragraph 75-79, the Judge notes the argument that there would be exceptional circumstances making the refusal of leave disproportionate. However, she finds there are no such circumstances on the evidence before her. In doing so she does not give reasons for this finding. Ms Clewley argued this was not material as elsewhere in the decision the Judge addressed such issues. However, for reasons given above, the Judge had not considered with sufficient scrutiny the evidence of the treating clinician or Mr Levy. Further she has not followed the staged approach outlined in Razgar and Agyarko [2017] UKSC 11, with respect to the assessment of an outside the rules article 8 claim. There is no assessment of whether a private life exists as per Article 8 (1) and there is no balancing exercise conducted by the Judge to enable the loosing party to understand why in view of the evidence there were not unjustifiably harsh consequences, which were exceptional and outweighed the public interest. This I am satisfied is a material error of law, as the Judge failed to give reasons or adequate reasons for findings on material matters.
15. The Upper Tribunal interferes only with caution in the findings of fact by a First-tier Tribunal which has heard and seen the parties give their evidence and made proper findings of fact. This has been stated numerously by the higher courts, for example recently in Volpi & Anor v Volpi [2022] EWCA Civ 464. Unfortunately, that is not the position here. The Judge’s decision was vitiated by material errors in the way that she approached the evidence in relation to the appellant’s private life and in the assessment of Article 8 ECHR outside the framework of the Immigration Rules.
16. Applying AEB [2022] EWCA Civ 1512 and Begum (Remaking or remittal) Bangladesh [2023] UKUT 46 (IAC) , I have considered whether to retain the matter for remaking in the Upper Tribunal, in line with the general principle set out in statement 7 of the Senior President's Practice Statement. I consider, however, that there is a need for updated evidence given this appeal relies on medical conditions which are evolving over time and further it would be unfair for either party to be unable to avail themselves of the two-tier decision-making process.
Notice of Decision
The making of the decision of the First-tier Tribunal did involve the making of a material error of law. As such it is necessary to set aside the decision.
The decision to allow the appeal is therefore confirmed. I set aside the decision of the First-tier Tribunal.

S K Kudhail

Judge of the Upper Tribunal
Immigration and Asylum Chamber

27 November 2025