Tribunal decisions

The decision

IN THE UPPER TRIBUNAL
IMMIGRATION AND ASYLUM CHAMBER Case No: UI-2025-005173, UI-2025-005174
First-tier Tribunal No: HU/01190/2024 HU/01188/2024

THE IMMIGRATION ACTS

Decision & Reasons Issued:

On 13th of October 2026

Before

DEPUTY UPPER TRIBUNAL JUDGE SOLANKI

Between

TAMKEEN NAZ
WAJEEHA NAZIR
(NO ANONYMITY ORDER MADE)
Respondent
and

SECRETARY OF STATE FOR THE HOME DEPARTMENT
Appellant

Representation:
For the Appellant: Mr Chohan
For the Respondent: Ms Khan, Senior Presenting Officer

Heard at Field House on 16 July 2026

DECISION AND REASONS
Introduction
1. In this decision, I have referred to the parties the way in which they were referred to in the First-Tier Tribunal.
2. The Appellants are Pakistani nationals, dates of birth 1 January 1967 and 21 November 1994 respectively. They appeal the decisions of the Respondent, dated 25 June 2024 and 20 June 2024, to refuse their applications for leave to remain.
Background
3. The First Appellant is the mother of the Second Appellant. They entered the UK on 23 April 2014 as dependants of a Tier 1 (Entrepreneur) Migrant (the First Appellant’s husband) valid until 11 January 2016. On 11 January 2016, they submitted in-time applications to extend their stay in the same capacity. These applications were refused. After exhausting administrative review remedies, the appellants sought Judicial Review of the refusal decisions. That application was withdrawn by consent following a grant of permission, with the Respondent agreeing to reconsider the decisions. As a result, the Appellants were granted further leave to remain on 4 January 2017, valid until 4 January 2019.
4. A subsequent, timely application was made on 4 January 2019. This was again refused by the Respondent in March 2020. The Appellants initiated a second Judicial Review, which was later withdrawn following the Respondent’s agreement to reconsider the refusal. The reconsideration led to further leave being granted on 1 December 2020, valid until 1 December 2023. However, the Appellants departed the UK in January 2022 due to the critical illness of the First Appellant’s mother in Pakistan. Due to a combination of factors, including First Appellant’s own health issues and the death of her mother, they did not return to the UK until October 2023. On 1 December 2023, they submitted a further application for leave to remain, which they subsequently varied on 31 March 2024 to an application under the 10-year Long Residence route.
5. They appealed the decisions of the Respondent dated 25 June 2024 and 20 June 2024 to refuse their applications for leave to remain. The applications were refused under Paragraph 276B(i)(a) on the basis of their absences from the UK breaking their continuity of residence. The decision stated that there was no compelling reason which allowed for the exercise of discretion when considering their absences. They appealed these decisions.
6. Their appeal was allowed on human rights grounds by First-Tier Tribunal (FtT) Judge Anzani in a decision dated 31 July 2025. The appeal was allowed on the basis that they met Paragraph 276B of the Immigration Rules and as such this was positively determinative of their Article 8 ECHR claim. The Judge found the Second Appellant to be credible and reliable (para. 15), she accepted the explanations given for the absences, that the events that caused the absences were unforeseen, serious in nature, beyond their control and compelling and compassionate (paras. 16-24 FtT Decision).
7. The Respondent appealed the decision of the FtT on 12 August 2025, on the basis that (a) the Judge had erred in finding that Paragraph 276B(i)(a) of the Immigration Rules were met, (b) that the FtT had exercised a discretion to disregard absences which did not exist in law, and that (c) she had relied on Guidance not relevant to Paragraph 276B. The Judge was required to consider the appeal outside of the Rules under Article 8 ECHR and to conduct a proportionality assessment.
8. Permission to appeal was granted by FtT Judge Curtis in a decision dated 14 October 2025.
9. The matter came before me in an error of law hearing in January 2026. At that hearing Mr Ahmed, Counsel for the Appellants, agreed before me that there was a material error of law and that the Judge was required to carry out an Article 8 ECHR assessment. This was a sensible concession given the grounds of appeal advanced. This Tribunal as such found that there was a material error of law and the decision was set aside in a decision dated 26 April 2026.
10. The parties agreed that the findings made by the Judge at Paragraphs 15 to 22 of the decision could be preserved.
11. Having regard to Paragraphs 7.1 to 7.3 of the Practice Statements of the Immigration and Asylum Chambers of the First-Tier Tribunal and the Upper Tribunal, the matter was retained in the Upper Tribunal for remaking in an error of law decision promulgated on 26 April 2026. It was noted that the preserved findings were detailed and extensive and that the nature of the fact finding was such that it was appropriate for this decision to be remade in the Upper Tribunal. It was also noted by this Tribunal that with effect from 11 April 2024 the Immigration Rules were amended to introduce a new Appendix Long Residence. This replaced Appendix 276B but makes similar provision for leave to be granted for those who obtain ten years’ continuous lawful residence. It was highlighted that Appendix Long Residence and Continuous Residence made it clear that absences can be disregarded where there are compelling and compassionate circumstances, for example. Moreover, it was noted that in human rights matters, the Tribunal is required to consider the proportionality of refusal as at the date of the hearing and any assessment of proportionality would have regard to the Immigration Rules. The Secretary of State agreed with these observations and with this matter being retained by the Upper Tribunal in correspondence dated 19 March 2026. Whilst I was unaware of this when I issued the error of law decision, it seems the Appellants also wrote in by email on 19 March 2026 to agree with these observations and to confirm they too were happy with this matter being heard in the Upper Tribunal.
12. The Upper Tribunal issued directions asking both parties to file and serve skeleton arguments. It was asked that any such skeleton argument should address Appendix Continuous Residence and Appendix Long Residence and the impact, if any, this has on Article 8 ECHR in this claim. The Appellants served a skeleton argument on 7 July 2026. The Respondent did not comply with this direction and has served no skeleton argument.
Hearing
13. The matter came before me in a hearing on 16 July 2026. I had a composite bundle (“CB”) running to 152 pages. I also had before me the Long Residence Policy Version 19.0 dated 5 October 2023 (“v.19 the Guidance”). It was agreed by all parties that this was the policy in force at the date of the application and that was relevant to the decision made in this claim. I was also provided with the Long Residence Policy Version 20.0 dated 11 April 2024 (“v.20 the Guidance”), it being agreed this was the version in force at the date of decision making in this case and being relevant to decision making with reference to Article 8 ECHR. I have also had regard to Continuous Residence Guidance Version 4.0 dated 11 April 2024 (“v.4 the Guidance”).
14. At the start of the hearing there were some delays caused by the interpreter not being present.
15. It was confirmed to me by Mr Chohan that he intended to only call the Second Appellant owing to the First Appellant’s medical issues. Ms Khan noted that the Second Appellant was the only person who gave evidence in the FtT too.
16. The Second Appellant adopted her witness statement. She came here aged 20, she attended university in the UK, confirmed that she was working in the UK as a cashier and also in interior design with one of her brothers who was an architect, she now had two brothers who also lived in the UK on work visas (valid for five years) and that she lived with them and her mother. Her father did not now live with them, but she remained in contact with him in person and by phone. She confirmed they had not been to Pakistan since their trip in 2022 and that during that trip they resided with the maternal grandmother who had passed away. She had never worked in Pakistan, her salary was important to support her and her mother. One of her brothers was married with children to support, but the brothers also contributed financially as necessary. Her mother was pre-diabetic and in receipt of medication for this as well as for her blood pressure and cholesterol issues. There had been concerns about her other having dementia and she was being monitored by them in this regard. She was the main carer for her mother making sure she prepared food and arranged for her mother to have her medicine.
17. I heard submissions from Ms Khan. The lack of a skeleton argument from the Respondent was discussed and unfortunate given the issues that arise in this case and the directions issues.
18. Whilst Ms Khan initially accepted before me at the start of the hearing that Article 8(1) was not in dispute, after a break to wait for the interpreter to attend she changed her position and said it would be argued that Article 8 ECHR was not engaged. She referred me to IA & Ors v Secretary of State for the Home Department [2025] EWCA Civ 1516 and said family life was not made out on the evidence before the Tribunal. It was accepted that the Second Appellant had been educated here and had worked here but it was stated there was no private life on the evidence. In respect of proportionality, it was said they could reintegrate on return with family in Pakistan (who contact could be re-established with) or live independently there and use the skills acquired here. Any ties here could be maintained through modern means of communication and support from the brothers could continue on return. I was referred to s117B of the Nationality Immigration and Asylum Act 2002 (“s.117B NIAA 2002”) and it was submitted removal would be for the maintenance of effective immigration control, although there was financial independence they were not fully financially independent and these were neutral factors.
19. Ms Khan confirmed there was no challenge to the preserved findings. She made submissions explaining the Respondent’s position was that the Tribunal should consider the rules in force at the date of decision, the new rules did not apply to this case, it was accepted that Article 8 ECHR and proportionality was to be assessed at the date of the hearing. Ms Khan submitted that whilst v.19 of the Guidance allowed for compelling circumstances to be considered but this was with the discretion of the Secretary of State only and discretion was not exercised, the Appellants had spent a lengthy period outside the UK. She referred me to R (on the application of Afzal) v Secretary of State for the Home Department [2023] UKSC 46 but she was unable to explain how it applied on the facts of this case.
20. Mr Chohan adopted the skeleton argument drafted by Mr Jafar, Counsel. He submitted that v19 of the Guidance allowed the Respondent to exercise discretion and this was now reflected in the change in the rules. He referred me to the preserved findings. He submitted Afzal [2023] UKSC 46 did not apply on the facts of this case.
21. He also submitted that IA [2025] EWCA Civ 1516 was relevant to entry clearance matters. The Appellants were a family unit, the First Appellant was in poor health and whilst the Appellant was the only daughter the brothers did assist. They had entered legally and lived here for 12 years lawfully. The Second Appellant was working. They enjoyed family and private life here. There would be a disproportionate interference with family and private life by removal. The person they spent time with in Pakistan was the grandmother who had now passed away. They were sustaining themselves with no recourse to public funds. There would be very significant obstacles to integration on return, they had no base on return given their life here, their relatives would not support them as all had their own life, he referred to the fact that it was these Appellants who cared for the grandmother when she was unwell and dying.
Legal Framework
22. At the time the Appellants made the application, the relevant provisions of the Immigration Rules were at Paragraph 276B. Insofar as relevant, that provision provided that an individual would be granted ILR where they had ten years’ continuous lawful residence. Paragraph 276B(i)(a) requires an applicant to have resided lawfully in the United Kingdom for a continuous period of at least 10 years. According to the Home Office guidance in force at the time of application, continuous residence is normally considered broken if the applicant has been absent from the UK for more than six months (i.e. 184 days) on a single occasion, or for more than 18 months (i.e. 548 days) in total during the 10-year qualifying period. The transitional provisions in place meant that Paragraph 276B was the Rule applicable in decision making.
23. V.19 of the Guidance on this provision stated that:
“If the applicant has been absent from the UK for more than 6 months (184 days) in one period or more than 18 months (548 days) in total, the application should normally be refused. However, it may be appropriate to exercise discretion over excess absences in compelling or compassionate circumstances, for example where the applicant was prevented from returning to the UK through unavoidable circumstances.”
24. Appendix Continuous Residence was in force at the date of the Appellant’s application but it did not apply to applications under paragraph 276B. It applied to a range of other applications, such as, Appendix Settlement Family Life, Appendix Skilled Worker, Appendix Domestic Worker in a Private Household Appendix Private Life (settlement only, apart from where the applicant is applying to settle as a child born in the UK) and many others.
25. At the date of the decisions made by the Respondent in this case, and Appendix Continuous Residence also applied to Appendix Long Residence applications.
26. Currently and at the date of the hearing in this case, Appendix Continuous Residence states that:
“CR 3.1. To meet the continuous residence requirement, the applicant must not have been outside the UK for more than 180 days in any 12- month period (unless CR 3.2., CR 3.3., CR 5.1. or CR 5.2. applies, and subject to CR 3.4.).
CR 3.2. For any absence from the UK with permission granted under the rules in place before 11 January 2018, the applicant must not have been outside the UK for more than 180 days during any consecutive 12-month period, ending on the same date of their current application unless CR 3.3 applies, and subject to CR 3.4.
CR 3.3. Subject to CR 3.4, where the application is under Appendix Long Residence, the applicant must not have: (a) spent a total of more than 548 days outside the UK during their qualifying period, where that 548-day total was reached before 11 April 2024; and (b) been outside the UK for more than 184 days at any one time during their qualifying period, where that absence started before 11 April 2024.
CR 3.4. When calculating the period of absence in CR 3.1., CR 3.2. or CR 3.3., any period spent outside the UK will not count where the absence was for any of the following reasons: (a) the applicant was assisting with a national or international humanitarian or environmental crisis overseas, providing, if on a sponsored route, their sponsor agreed to the absence for that purpose; or (b) travel disruption due to natural disaster, military conflict or pandemic; or (c) compelling and compassionate personal circumstances, such as the life-threatening illness of the applicant, or the life- threatening illness or death of a close family member;…”
27. The provisions of Appendix Continuous Residence were materially identical as at the date of the hearing /decision in the FtT.
28. From 11 April 2024 the Immigration Rules were amended to introduce a new Appendix Long Residence. This replaced Appendix 276B but makes similar provision for ILR to be granted for those who obtain ten years’ continuous lawful residence. The relevant provisions are:
“Validity requirements for settlement on the Long Residence route
LR 9.1. A person applying for settlement on the Long Residence route must apply online on the gov.uk website on the specified form “Apply to settle in the UK – long residence”.
LR 9.2. An application for settlement on the Long Residence route must meet all the following requirements:
(a) any fee must have been paid; and
(b) the applicant must have provided biometrics when required; and
(c) the applicant must have provided a passport or other document which satisfactorily establishes their identity and nationality.
LR 9.3. The applicant must be in the UK on the date of application.
LR 9.4. An application which does not meet all the validity requirements for settlement on the Long Residence route may be rejected as invalid and not considered.

Suitability requirements for settlement on the Long Residence route
LR 10.1. The applicant must not fall for refusal under Part Suitability.
LR 10.2. The applicant must not be: (a) in breach of immigration laws, except that where the Exceptions for overstayers section of Part Suitability applies, that period of overstaying will be disregarded; or (b) on immigration bail, except where the Exceptions for overstayers section of Part Suitability applies.

Eligibility requirements for settlement on the Long Residence route
Qualifying period requirement for settlement on the Long Residence route
LR 11.1. The applicant must have spent a qualifying period of 10 years lawfully in the UK, for the entirety of which one or more of the following applied:
(a) the applicant had permission, except permission under Appendix Ukraine Scheme, or permission as a Visitor, Short-term Student (English language) or Seasonal Worker (or under any of their predecessor routes); or
(b) the applicant was exempt from immigration control; or
(c) the applicant was in the UK as an EEA national, or the family member of an EEA national, exercising a right to reside under the Immigration (European Economic Area) Regulations 2016 prior to 11pm on 31 December 2020 (and until 30 June 2021 or the final determination of an application under Appendix EU made by them by that date); or
(d) a period as a British citizen, except where citizenship has subsequently been deprived.
LR 11.2. The following periods will not count towards the qualifying period for Long Residence:
(a) time spent on immigration bail, temporary admission or temporary release; and
(b) any period of overstaying between periods of permission before 24 November 2016 even if a further application was made within 28 days of the expiry of the previous permission; and
(c) any period of overstaying between periods of permission on or after 24 November 2016 even if the Exceptions for overstayers section of Part Suitability applies to that period of overstaying; and
(d) any current period of overstaying where the Exceptions for overstayers section of Part Suitability applies.
LR 11.3. Subject to LR 11.4, the applicant must have had permission on their current immigration route for at least 12 months on the date of application, or have been exempt from immigration control in the 12 months immediately before the date of application.
LR 11.4. If the applicant’s current permission was granted before 11 April 2024, LR 11.3. does not apply.

Continuous residence requirement for settlement on the Long Residence route
LR 12.1. The applicant must have met the continuous residence requirement set out in Appendix Continuous Residence for the entirety of the qualifying period.”
Decision and Reasons
29. I have considered all the evidence in the round, even though I may not explicitly refer to all the evidence below.
30. I considered the Second Appellant to be a credible witness, just as was found by the FtT in their earlier decision. Her evidence was consistent with her witness statement and the documentary evidence. She answered questions in a clear and straightforward manner and gave detail where necessary. I am satisfied that weight can be placed on her evidence.
31. The starting point for consideration of article 8 claims is Lord Bingham's judgment in R (Razgar) v Secretary of State for the Home Department [2004] UKHL 27 which requires that, when assessing article 8, a decision maker consider the following five questions [17-20]:
(1) Will the proposed removal be an interference by a public authority with the exercise of the applicant's right to respect for his private or (as the case may be) family life?
(2) If so, will such interference have consequences of such gravity as potentially to engage the operation of article 8?
(3) If so, is such interference in accordance with the law?
(4) If so, is such interference necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others?
(5) If so, is such interference proportionate to the legitimate public end sought to be achieved?
32. I find that both Appellants have established a family and private life in the UK. I find that the right to family and private life is protected by article 8.
33. The Appellants in this case are accepted to have entered the UK lawfully in April 2014 as dependants of the First Appellant’s husband and the Second Appellant’s father. Thereafter they have both extended their leave in the UK.
34. The Appellants have always lived together. The First Appellant has been diagnosed with severe depressive episode, generalised anxiety disorder, and cognitive impairment (marked by short term and long term memory problems). Her memory issues are said in the medical evidence to have left her at times leaving the stove on, leaving taps on, burning food and she is considered to pose a mild to moderate risk to herself. She has also disclosed diabetes, high blood pressure and cholesterol. Medical evidence in the CB from Dr Aslam refers to the First Appellant’s health interfering with her functioning and her being reliant on family in the UK for her health, wellbeing and to leave the house. Dr Aslan’s opinion was that change in her social and family setup was likely to cause major distress and adjustment issues which she would be unlikely to cope with. It has consistently been stated, throughout the evidence in this case, that the Second Appellant has supported the First Appellant with her health issues. The First Appellant is in receipt of healthcare in the UK.
35. They have lived here lawfully since 2014 for some 12 years (noting of course their absences which I refer to below). The Second Appellant has spent most of her adult life here, she has studied here and worked here. The evidence in the CB and provided orally suggests she has been in work for many years and that she is now also supporting her brother in his work (alongside other employment). They have wider family in the UK. The Second Appellant maintains face to face and telephone contact with her father in the UK, following the breakdown of his relationship with the First Appellant. The Appellants also live with two brothers who are in the UK lawfully.
36. In respect of family life and the submissions made with reference to IA [2025] EWCA Civ 1516, I do consider that there are additional elements of dependence, involving more than emotional ties here. Indeed the First Appellant on the evidence is financially, practically, physically and emotionally dependant on the Second Appellant (and to some extent her sons in the UK).
37. If I am wrong about this, the Appellants plainly have a private life here on the evidence having regard to their long lawful residence, their relationships and the way in which their life has developed here; see Maslov v Austria [2009] INLR 7 at para. 63. I remind myself that private life as protected by ECHR article 8 is a broad concept, encompassing personal, social and economic relations; see Niemietz v Germany 1992 App no. 13710/88 at para 29 and Barbelescu v Romania 2017 App. No 61496/08 at paras.70-71. It encompasses the network of relations that a person has established with other human beings including through work, education, friendships, community ties, as well as physical and moral integrity; see for example C. v. Belgium 1996 App. No 21794/93 at para.25 and X and Y v Netherlands 1985 App no 8978/80 at para. 22.
38. I am satisfied that the immigration decisions would interfere with their right and that the interference would engage article 8(1); see AG (Eritrea) v Secretary of State for the Home Department [2007] EWCA Civ 801 at paras. 26-28 and VW (Uganda) [2009] EWCA Civ 5.
39. I find that the interference would be in accordance with the law. The legitimate aim would be immigration control. The issue in this matter comes down to a question of the proportionality of the immigration decision in relation, subject to the public interest considerations in part 5A (Public Interest Considerations) of the Nationality, Immigration and Asylum Act 2002.
40. A single issue was in dispute between the parties in respect of the ability of the Appellants to meet the Paragraph 276B of the Immigration Rules (namely Paragraph 276B(i)(a) – i.e., whether their 10 years continuous lawful residence in the UK was broken).
41. I note that in the FtT it was “accepted that the appellants left the UK on 25 January 2022 and returned on 19 October 2023, a single period of absence of 631 days, which significantly exceeds the standard limits detailed above. The appellants [did] not dispute that they spent a total of 1,122 days outside the UK during the relevant 10-year period, including the single 631-day period of absence. [The Respondent] acknowledged during the hearing that if the 631-day absence were to be disregarded due to compelling circumstances, the appellants would otherwise meet the continuous residence requirement. Accordingly, the central issue [was] whether their extended stay in Pakistan between 25 January 2022 and 19 October 2023 arose from circumstances sufficiently compelling and compassionate to justify the exercise of discretion” (see para. 13 FtT decision). The Respondent did not at any stage argue a different position before me and as such I consider this issue in looking at proportionality.
42. The Respondent argues that the Appellants’ case is to be determined by reference to Paragraph 276B of the Rules and that the Tribunal is to consider the rules as at the date of decision. She states that Paragraph 276B did not allow for compassionate factors to be considered. The Respondent chose not to exercise discretion and that was a matter for her. The Appellants argue in their skeleton argument, in summary, that on the preserved findings their absences fell within v19 of the Guidance and that discretion ought to have been exercised in their favour, or that they meet the current immigration rules with reference to Appendix Continuous Residence and that this is relevant to proportionality under Article 8 ECHR and/or positively determinative of their appeal under Article 8 ECHR as per TZ Pakistan and PG India v Secretary of State for the Home Department [2018] EWCA Civ 1109.
43. It was agreed before me by both parties, that the Tribunal is required to consider the proportionality of the refusal as at the date of the hearing. Whilst the parties agree that the Appellant did not apply under Appendix Long Residence (and Appendix Continuous Residence), these are the provisions of the Immigration Rules that apply at the date of the hearing before me (and indeed the date of the hearing in the FtT). I agree with the Appellant that the new rules are relevant to my considerations under Article 8 ECHR. The rules in this case were changed whilst the Appellants’ applications were still pending with the Respondent. I remind myself that the Immigration Rules, reflect the Respondent’s view of the public interest. These rules have changed with the effect that a long residence applicant who had excess absences due to compelling and compassionate circumstances should still be able to obtain ILR.
44. I set out the preserved findings from the FtT at paras. 15-22 of the that decision:
“15. I found A2 to be a credible and reliable witness. Her oral testimony was consistent with her written statement and the documentary evidence. She answered all questions in cross-examination clearly and with satisfactory detail. I am satisfied that weight can be placed on her evidence.
16. The appellants have provided comprehensive statements and documentary support
for their assertion that their extended absence was caused by unforeseen and exceptional circumstances, including serious medical issues and the eventual death of A1’s mother (A2’s grandmother). I accept A2’s account that she and A1 travelled to Pakistan on 25 January 2022 to visit A1’s gravely ill mother. At that time, A1 was still recovering from a recent COVID-19 infection. Medical documentation confirms her positive COVID-19 test.
17. Upon arrival in Pakistan, A1’s condition deteriorated, resulting in her hospitalisation at Hameedah Memorial Hospital in Lahore. Records confirm that she was treated for viral pneumonia and suspected COVID-19. When asked by Ms Keerthy why they did not return to the UK following A1’s hospital discharge in April 2022, A2 explained that A1 remained unfit to travel on medical advice. I accept this explanation as credible in light of the serious nature of her illness and the medical evidence presented.
18. A2 further explained that in June 2022, as A1 was in recovery, her grandmother suffered a severe heart attack, necessitating emergency hospitalisation. This is supported by unchallenged records from Jinnah Hospital confirming that A2’s grandmother was admitted on 12 June 2022 and remained hospitalised until 8 August 2022.
19. A2 credibly described the emotional and caregiving burden this placed on A1, which exacerbated her mental health struggles. Psychiatric evidence from Consultant Neuropsychiatrist Dr HM Imtiaz Afzal confirms that as of October 2022, A1 was under treatment for mental illness and deemed medically unfit to travel. This is further supported by a detailed psychiatric report by Dr Shahzad Aslam, diagnosing A1 with a severe depressive episode, generalised anxiety disorder, and cognitive impairment.
20. A2 explained that in January 2023, just as A1’s condition was stabilising, her grandmother suffered a second heart attack. A1 reportedly experienced a panic attack upon receiving this news and was subsequently hospitalised herself. Hospital records corroborate the admissions of both A1 and A2’s grandmother during this period.
21. A2’s grandmother was discharged in March 2023 but continued to require constant care, which the appellants provided. On 15 June 2023, she suffered a third and fatal heart attack. A death certificate confirms her hospital admission on 15 June 2023 and her death on 28 August 2023.
22. When asked why the appellants did not return to the UK immediately after the grandmother’s passing, A2 explained that they remained in Pakistan to oversee funeral arrangements and manage her grandmother’s affairs. I accept this explanation as reasonable in the circumstances.”
45. I have set out the relevant legal framework above.
46. In Appendix Continuous Residence and v4 of the Guidance, excess absences can be disregarded where they are caused by the pandemic or owing to compelling and compassionate personal circumstances. The latter is said to include the life-threatening illness of the applicant or a close family member.
47. Considering the preserved findings and the unchallenged evidence in its entirety, I am satisfied that the Appellants’ prolonged absence from the UK was caused by a series of serious, unavoidable, and compassionate circumstances. The reasons for their departure, namely owing the ill health of the First Appellant’s mother, are compelling and compassionate circumstances. The subsequent viral pneumonia in the First Appellant (as recorded in her medical notes), who was recently recovering from Covid, is absence which is rightly to be described as life-threatening. This amounts to a serious, unavoidable, compelling and compassionate circumstances. In addition to this, I find that the recurrent hospitalisations in 2022 and 2023 (for repeated serious heart attacks) and eventual death of the First Appellant’s mother in 2023, together with the impact this had upon the health of the First Appellant emotionally and psychiatrically (who thereafter was diagnosed with anxiety, suffered a panic attack and was advised medically to not travel) to also amount to compelling and compassionate circumstances. The death of the First Appellant’s mother/second Appellant’s grandmother, and the need to be present for funeral arrangements/rituals and to manage consequent affairs, also constitutes compelling and compassionate circumstances within the meaning of the rules and guidance.
48. It follows that, on the single issue that was raised in this case in respect of the rules, the Appellants are able to meet the current rules. I remind myself of OA and Others (human rights; 'new matter'; s.120) Nigeria [2019] UKUT 65 (IAC) which held 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.
49. Further and/or alternatively, the Appellants have been lawfully present in the UK for 12 years. For the Second Appellant this is for almost all of her adult life between the ages of 20 and 32 years and over a third of her life. She has worked and studied here. They are both of unblemished character. They both have wider family ties and commitments here. The First Appellant has a range of health issues which means she is reliant on the Second Appellant and family here. They have established a family and/or private life of significance.
50. I accept the evidence that they would have no ties to return to in Pakistan, they have lived away from their extended family for many years now and when they previously returned this was to care for a grandmother/mother who has now sadly passed away.
51. I note that their leave has been precarious and therefore attracts little weight. However, I consider that their ability to show ten years’ continuous lawful residence means that, as a matter of the Respondent’s own policy reflected in the Immigration Rules and in Policy Guidance, their private life is of such that it warrants a grant of indefinite leave to remain. Contrary to the submissions made by the Respondent, I find that they are financially independent in that it has not been suggested that they have ever had recourse to public funds and they have clearly been able to maintain and accommodate themselves throughout their lengthy stay in the UK. The Second Appellant has studied here and can speak English. I did not hear evidence from the First Appellant, but I note there is medical evidence in the CB which refers to memory impairment which is said will impact her ability to study and retain new information and as such to learn a new language. Having regard to all of this, there is nothing within s117B NIAA 2002 which tips the balance in the Respondent’s favour.
52. I considered the decision in Afzal [2023] UKSC 46 and agree with the submissions made by the Appellants’ representatives on this case. Ms Khan was unable to explain before me the relevance of the decision to the facts of this claim.
53. I note that even at the time of the decision v19 of the Guidance, which was applicable to the decision making in this case, there was allowance for discretion to be exercised over excess absences in compelling and compassionate circumstances, for example where this prevented an Applicant from returning to the UK through unavoidable circumstances. I have reminded myself of SF and other (Guidance, post-2014 Act) Albania [2017] UKUT 120 (IAC), which states that even in the absence of a ‘not in accordance with the law’ ground of appeal the Tribunal ought to take the Secretary of State’s Guidance into account if it points clearly to a particular outcome in a case. As I have found above, with reference to the preserved findings of the FtT and the evidence before me, the reasons given for the absences do amount to unavoidable, compelling and compassionate circumstances.
54. Whilst not submitted by the Respondent before me, I have considered whether it is the public interest for the Appellants to submit a second, paid application in materially identical terms to the earlier application with reference to the amended current Rules. Given the findings made above, such an application would be certain to succeed. I have regard to the decision in Chikwamba v SSHD [2008] UKHL 40 and Tikka v Secretary of State for the Home Department [2018] EWCA Civ 642 at para. 22. I conclude that there is no public interest or sensible reason that has been provided to me in requiring the Appellants to make such an application. This would be disproportionate see R (Quila) v SSHD [2011] UKSC 45 at para. 45 and Huang v SSHD [2007] 2 AC 167 at para. 19) as, inter alia, there is no rational connection between the enforcement of immigration control and the requirement for a lawful resident who meets the rules to ‘tick the box’ of submitting a second materially identical application. As has already been highlighted, it was the Respondent’s decision to change the Rules whilst this application was outstanding which means the position under Article 8 ECHR at the time of the FtT hearing and this hearing differed from the situation at the time of the application. It is not the case that the case put forward by the Appellants has materially changed from the point at which they made their applications.
55. In all of these circumstances, the refusal of leave and their removal would constitute a disproportionate interference with their rights under Article 8 ECHR.
Notice of Decision
56. The decision of First-tier Tribunal involved the making of an error of law and is set aside. I remake the decision, allowing the appeal on human rights grounds.

P. Solanki

Deputy Judge of the Upper Tribunal
Immigration and Asylum Chamber

9 October 2026