Tribunal decisions

The decision

IN THE UPPER TRIBUNAL
IMMIGRATION AND ASYLUM CHAMBER
Case No: UI-2025-004643

First-tier Tribunal No: PA/63818/2023
LP/10910/2024

THE IMMIGRATION ACTS

Decision & Reasons Issued:

On 7th of January 2026

Before

DEPUTY UPPER TRIBUNAL JUDGE NAIK KC

Between

SECRETARY OF STATE FOR THE HOME DEPARTMENT
Appellant
and

PAPA ARLENE
Respondent

Representation:
For the Appellant: Mr Terrell, Senior Home Office Presenting Officer
For the Respondent: Ms Atas, Counsel

Heard at Field House on 1 December 2025

DECISION AND REASONS
Introduction
1. This is an appeal by the Secretary of State for the Home Department (SSHD) against the determination of the First-tier Tribunal Judge Sweet (the Judge) who dismissed the Respondent’s protection claim but allowed her appeal on Article 8 ECHR grounds outside the immigration rules in a determination dated 10 January 2025.
2. The Respondent is a Filipino national who entered the UK on 20/07/2021 accompanied by her employer with the benefit of a private household visa. The Respondent extended her stay with grants of leave in the same category from 19/08/2020 to 19/02/2021 and also 25/05/2021 to 25/11/2021, but states she left her employment in August 2021. On 25/03/2022, the Respondent submitted a claim for asylum, which was refused by the SSHD in a decision dated 28/11/2023 and is the subject of this appeal, lodged 06/12/2023.
3. The appeal was allowed on human rights grounds only by the Judge, who found that she is in a genuine and subsisting relationship with her British citizen partner and concluded that it would be disproportionate to separate them and to require the Respondent to submit an application for entry clearance from the Philippines. The appeal was dismissed on protection grounds and there was no cross-appeal against that determination.

Grounds of Appeal
4. The SSHD sought permission to appeal by way of a notice filed on 17 January 2025.
5. The SSHD submitted that the Judge had made a material error of law in allowing the appeal. It was said that the Judge had acted unlawfully by committing or permitting a procedural or other irregularity capable of making a material difference to the outcome or the fairness of the proceedings and making a material misdirection of law.
6. First it was submitted that the Judge’s consideration of a new matter at the hearing without seeking the consent of the SSHD’s representative amounted to a procedural irregularity and resulted in the overall decision amounting to a misdirection of law. As the Judge noted, at the time of the Respondent’s substantive interview for asylum, she did not claim to have a partner in the UK [8], which is why the refusal letter did not consider this. The Respondent first raised her alleged relationship with her partner Mr Lim when providing her bundle of evidence for the appeal in April 2024, but she did not seek to formally raise this as a new matter via a section 120 notice. Therefore, in the SSHD’s review, conducted in July 2024, the SSHD stated that consent was not given to consider this matter, except in relation to her protection claim, on the basis that any relationship could be viewed as adulterous due to her marriage in the Philippines (paragraph 19 of the review. Therefore it was submitted that there was no indication that the Presenting Officer has been asked for consent in order to consider this new matter, per the principles of Quaidoo (new matter: procedure/process) Ghana [2018] UKUT 87 (IAC). As a result therefore the Judge had committed a procedural irregularity by deciding this issue, which had material impact on the outcome of the appeal. Second it was submitted that the Judge had failed to give reasons or any adequate reasons for findings on material matters. It was submitted that the Judge had erred in finding that the Respondent should not be required to make an application for entry clearance from abroad due to her claimed partner’s inability to currently satisfy the financial requirement. It was said that this failed to take into account or resolve alternative options that were available to them and that the Judge also failed to provide any adequate reasoning as to why their separation would be disproportionate under Article 8 when applying the relevant case law. Mr Terrell for the SSHD set out four reasons under this head:
Firstly, from reading the determination it was not clear why the Judge had accepted the Respondent’s relationship with Mr Lim to be genuine and subsisting. The Respondent had failed to disclose her relationship when interviewed [8], to which the Judge gave significant weight to when assessing their relationship [13], However, the Judge then accepted that this relationship did exist [14]. The Judge seemed to accept the relationship primarily due to the documentary evidence submitted in support [15], but he failed to detail any satisfactory assessment of their credibility nor provide any detail of their testimony given during cross-examination that supported their claimed relationship. Whilst it was submitted that weight is a matter for the Tribunal and it was acknowledged that the documentary evidence was deserving of some weight, it was unclear from the determination and reasons why exactly this in itself had satisfied the Judge that their relationship first satisfied the definition of a partner where their relationship can be described as akin to marriage or as fiancées and second that their relationship is genuine and not merely platonic as, for example, friends or housemates living together. Without establishing this in his findings, it was submitted that the Judge had failed to adequately reason his acceptance of the relationship.
Second with regard to the Judge’s finding that it would be disproportionate to expect the Respondent to return to the Philippines and apply for entry clearance because Mr Lim could not currently satisfy the financial requirement and due to the time it takes to process applications [15], it was submitted that the Judge had failed to take the public interest into proper consideration when arriving at his conclusion. It is in the public interest that all migrants are able to satisfy the immigration rules, which includes the financial requirement. Whilst Article 8 can be relied on to argue that an individual’s removal/exclusion would breach their right to family and/or private life, this had not been established in the current appeal to such a degree that it could truly be described as disproportionate or even unduly harsh.
Third per Alam & Anor v Secretary of State for the Home Department [2023] EWCA Civ 30, a full consideration of Article 8 is necessary where there is a public interest, which is encapsulated within section 117B and this applies in all cases where the individual cannot satisfy the immigration rules. Furthermore, little weight should be given to a relationship formed when the person’s immigration status is or was precarious, per Rhuppiah v Secretary of State for the Home Department [2018] UKSC 58. It cannot be said that the Judge’s decision has weighed public interest against the Respondent’s circumstances or that the Judge had given little weight to their relationship and therefore he failed to apply the relevant case law.
Fourth, there was no apparent barrier or any insurmountable obstacles for the Respondent and Mr Lim to relocate to the Philippines and continue their family life there. In the alternative, whilst Mr Lim claimed to have been out of work and receiving benefits since December 2023 [11], the reasons for his failure to secure employment had not been made clear and there was no apparent reason why he could not obtain work as a chef or in another profession to therefore satisfy the financial requirement [14]. These are matters the Judge failed to take into account or resolve with adequate reasoning and it could be said that the consequences of the Respondent’s removal would cause a disproportionate interference with their right to family life because of this.
Hence taking the above into overall consideration, it was submitted that the Judge failed to consider material matters of fact and/or opinion nor to apply relevant case law and such that his finding that Article 8 would be breached was inadequately reasoned.
7. Permission to appeal was granted by FTTJ Hollings-Tennant some 9 months later, on both grounds on 2 October 2025, first as to ground one and the jurisdiction of the Judge to determine the Article 8 issue as a new matter without the explicit consent of the SSHD under section 85 of the 2002 Act. Second, as to ground two, he also found that it was arguable that the Judge had failed to give adequate reasons for finding the Respondent was in a genuine and subsisting relationship nor why it was disproportionate to expect her to leave the United Kingdom and seek an entry clearance from abroad. Given the Judge’s adverse credibility findings regarding the Respondent’s asylum claim, particularly the significance of her failure to mention any partner, it was arguable the Judge failed to give adequate reasons for accepting there was a genuine and subsisting relationship. Further, there was no assessment as to whether there were insurmountable obstacles to family life abroad or that removal would give rise to unjustifiably harsh consequences. Whilst the Judge referred to section 117B of the 2002 Act, there is no indication that a ‘balance sheet’ approach to proportionality was actually carried out.
8. There was no explanation for the delay by the FTT’s consideration in the determination of the application for permission to appeal.
9. The Respondent did not file a rule 24 notice nor any skeleton argument for this appeal before the Upper Tribunal.

Submissions
10. At the commencement of his submissions Mr Terrell conceded that he did not advance ground one for two reasons, first that Article 8 had been addressed in the Respondent’s skeleton argument before the Judge and second that in the ‘Respondent’s review’ the SSHD had had the opportunity to address the relationship there and engaged with it at paragraphs 17 to 19 and did address Article 8 ECHR before the Judge as noted in the [internal] minute of hearing on file.
11. Mr Terrell for the SSHD further confirmed that the question of the credibility of the fact of the relationship was not in issue, nor (as both parties agreed) did Section 8 of the Asylum and Immigration (Treatment of Claimants etc) Act 2004 properly apply (confined as that is to the determination of credibility in the asylum/protection claim).
12. His submissions were focussed on the Judge’s assessment of proportionality and the significant errors in that assessment as set out in ground two under four heads as set out in the grounds of appeal above with reference to paragraphs 14 and 15 of the determination in particular.
13. The Judge erred in his assessment in his finding that it would not be proportionate to separate the couple and to require the Respondent to make an application for entry clearance from the Philippines to enter the UK as a partner.
14. Second the Judge erred with respect to his findings under section 117B(4) on private life when the relevant consideration here was private or family life formed at a time when a person was not lawfully present per section 117B(5). Moreover nowhere in the determination was there any reference to the mandatory nature of the consideration to the statutory public interest consideration in that section as a whole. He referred to the recent Court of Appeal decision in Butt v Secretary of State for the Home Department [2025] EWCA Civ 189 at para 82 per Elisabeth Laing LJ:
Section 117B(4) of the 2002 Act in any event obliged the F-tT to give 'little weight' in its article 8 decision to the relationship between A and his partner, because it was formed when he was in the United Kingdom unlawfully. Following Rhuppiah there is some 'flexibility' in the application of that requirement, but that flexibility is not available unless a tribunal identifies some 'compelling factor'. The F-tT identified no such compelling factor. Instead, it held that a period of delay which, on any view, was a short period, and which was not (unlike the delay in EB (Kosovo)) a delay in making a decision in an asylum claim 'countered' the effect of section 117B(4).
15. The Judge was entitled to give this more than little weight but must identify a compelling factor properly applying the UKSC in Rhuppiah and it was an error of law to fail to do so. Here there was no reference to family life which was a fundamental error of law sufficient make out ground two.
16. The second error was the Judge’s failure to make any findings on whether family life could continue overseas in the Philippines with reference to the principles set out by the Supreme Court in Agyarko v Secretary of State for the Home Department [2017] 1 WLR 823. This was a crucial factor and a stringent test which he omitted to address or failed to properly address.
17. The third related error was with respect to his assessment of insurmountable obstacles and it was unclear whether the couple could live together in the Philippines. The Judge failed to address the core question as to why there would be a separation.
18. Finally the Judge failed to clearly reason why it would be disproportionate for the Respondent to make an application for entry clearance from abroad. Whilst he cited delay of 12 months, he also indicated that this was in part because he concluded that the financial requirement could not be met. These are two errors which first appear to treat the Respondent’s inability to meet the financial requirements of the immigration rules as a point in her favour and second there was no recognition by the Judge of the SSHD’s policy that spouses/partners need to meet a certain income level, and the significance of policy at a general level which was a point re-emphasised by the Court of Appeal in the recent decision of SSHD v IA [2025] EWCA Civ 1516. He noted in addition that there was no finding that the sponsor could not work in the future although it was his accepted evidence that he was not able to work at the date of the hearing in January 2025 and had not done so on medical grounds/advice since February 2024.
19. The fourth point Mr Terrell argued was whether this relationship in fact met the requirements of the immigration rules under Appendix FM as the definition of a partner with a subsisting relationship. Nowhere did the Judge reach a finding that the Respondent’s relationship with her partner falls within the Immigration Rules and the ability to meet the requirements of the rules is central to any proportionality analysis. Latterly (and consistent with the concession above as to the acceptance of the credibility of the relationship not being in issue) he conceded that the Judge reluctantly accepted that the relationship was genuine, but he maintained that there was no clear finding as to the length of the relationship.
20. Mr Terrell argued that any one of the errors he had identified showed that the Judge had materially erred in law in allowing the appeal.
21. In response for the Respondent Ms Atas sought to defend the Judge’s conclusions with reference to the factors that he had considered namely the nature of the emotional support provided by the Respondent to the sponsor Mr Lim and his health conditions as set out with reference to his witness statement.
22. Ms Atas sought to defend the determination on the basis that when properly examined that the Judge’s decision as a whole identified the relevant insurmountable obstacles with regard to the partner’s health and the emotional support that the Respondent provided to him, hence his conclusion that it would be disproportionate to require her to return to the Philippines to seek an entry clearance. He took into account the oral evidence of the Respondent and her partner who both gave evidence before him and she referred me to their witness evidence and the documentary evidence relied on in support of their relationship, living together for some 3 years going back to January 2022, Mr Lim’s health and finances, including that he was on Universal Credit and that he could not meet the requirements of the Immigration Rules. Overall the Judge was entitled to find that there were exceptional factors in this case to justify his conclusion. She accepted however that there was no express finding as to why the couple could not live together in the Philippines, she noted that it was part of the Respondent’s case that the Philippines was one of the two countries in the world where divorce was illegal, with reference to the skeleton argument before the Judge and the objective evidence relied on there and the SSHD’s own CPIN on the Philippines. Whilst the Judge at paragraph 13 had found that the risk of serious harm of reprisals as a result of living outside marriage in the UK as an adulterer was too speculative to be credible, Ms Atas accepted that he had not gone on to address whether such factors were or might be relevant to the question of insurmountable obstacles on return to the couple living there as such, nor made any findings as to the same.
23. In reply in summary Mr Terrell submitted that in the proportionality assessment the Judge overall had failed to adopt the balance sheet approach with any proper assessment of the public interest. There was no assessment of the medical evidence as to whether Mr Lim might be able to work in the future ( and so be able to meet the requirements of the immigration rules). He noted that there may , following Hussein and Another (Status of passports: foreign law) [2020] UKUT 00250 (IAC) need to be expert evidence as to the position under Philippines law as to the question of whether the Respondent can get (or is) divorced there as a matter of law and on the operation of law there on this issue.

Analysis
24. In my judgment the Judge materially erred in law in the following ways such that his findings as to the proportionality conclusions he reached are not properly reasoned and cannot be relied on.
25. In respect of his Article 8 findings I accept the Judge was entitled to conclude with reference to the witness evidence of the Respondent and her partner who gave evidence before him and with reference to the documentary evidence relied on including but not limited to their council tax statements, that the Respondent and her partner were in a relationship that was genuine and subsisting and had done as claimed for over 3 years since January 2022 and they had been living together since that time.
26. However the Judge erred in relation to his assessment of Article 8 in relation to whether the couple could live together in the Philippines, and if not what were the insurmountable obstacles to them doing so per EX.1(b), nor did he address GEN 3.2. and make findings as to the relevant facts accordingly.
27. The Judge also erred in failing to determine whether the Respondent could succeed under the immigration rules as a partner in particular in respect of the financial requirements and if so whether she should be required to make an entry clearance application from abroad and whether if not or in any event, given the likely delay and impact on the sponsor’s health and the impact of the lack of emotional support from the Respondent on the sponsor these were disproportionate.
28. The Judge in his assessment of proportionality failed to carry out a structured approach, nor to properly take into account the mandatory public interest considerations under section 117B(4) and (5) of the Nationality, Immigration and Asylum Act 2002 in relation to private and family life before reaching any decision on proportionality under EX.1(b) (and he did not address exceptionality under GEN 3.2 in any event). These errors were material to the outcome of the appeal.

Notice of Decision
1. The decision of the First-tier Tribunal involved the making of an error of law and is set aside.
2. The errors identified above as to the Judge’s assessment of proportionality are clearly material to the determination of the Judge. They may not be fatal to the final outcome of the Article 8 grounds, but the parties are entitled to a properly reasoned decision and the appeal should therefore be re-heard.
3. The findings of the Judge that there is a family life between the Appellant and her partner and that the relationship is credible and subsisting as claimed were ones he was entitled to reach on the evidence he heard and accepted and are maintained (obviously that can only be as at the date of the determination in January 2025).
4. The appeal is remitted to the First-tier Tribunal to be heard afresh by another Judge on the question of whether the decision of the SSHD to refuse the Respondent’s human rights claim was proportionate having regard to the requirements of the immigration rules for partners under Appendix FM, including consideration of EX.1(b) and EX.2 as to whether there are any insurmountable obstacles amounting to very serious hardship for the Respondent or her partner to the couple living in the Philippines, and if not whether per GEN 3.2 there are any exceptional circumstances which could render refusal of leave to remain a breach of Article 8 because this could result in unjustifiably harsh consequences for the Respondent or her partner. It is a matter for the Respondent whether she wishes to adduce further evidence and/or expert evidence as to the issue of divorce and adultery in the Philippines in relation to any insurmountable obstacles to family life there on that basis.

S Naik KC

Deputy Judge of the Upper Tribunal
Immigration and Asylum Chamber

24 December 2025