Tribunal decisions

The decision

IN THE UPPER TRIBUNAL
IMMIGRATION AND ASYLUM CHAMBER Case No: UI-2026-001248
First-tier Tribunal No: PA/65558/2024

THE IMMIGRATION ACTS

Decision & Reasons Issued:
On 15 October 2026

Before

DEPUTY UPPER TRIBUNAL JUDGE SWANEY

Between

ROIE ANJELO RAMIREZ ABAN
(NO ANONYMITY ORDER MADE)
Appellant
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: Mr L Magsino, solicitor
For the Respondent: Ms A Ahmed, senior presenting officer

Heard at Field House on 7 October 2026
DECISION AND REASONS
Background
1. The background to the appellant’s appeal is contained in the Upper Tribunal’s decision sealed on 10 August 2026 and is not repeated here.
2. Following the error of law hearing, it was held that the decision of the First-tier Tribunal judge (the judge) involved the making of a material error of law, in relation to his treatment of the appellant’s case pursuant to article 8 of the European Convention on Human Rights (ECHR).
3. In setting aside the judge’s decision, the Upper Tribunal preserved the judge’s findings in paragraphs 7 to 10 in relation to the appellant’s asylum claim. The Upper Tribunal also preserved the findings contained in paragraphs 13 and 14 of the judge’s decision that paragraph EX.1 of Appendix FM of the immigration was not satisfied. It must be noted that these findings are in respect of paragraph EX.1(b) which relates to whether the appellant and his partner would face insurmountable obstacles to enjoying their family life outside the United Kingdom.
4. At the end of the error of law hearing there was discussion about the impact of the birth of the appellant’s son on 4 July 2026 and whether it was a new matter for the purposes of section 85 of the Nationality, Immigration and Asylum Act 2002 (the 2002 Act) and therefore whether the respondent’s consent was required for the Upper Tribunal to consider it in re-making the decision. I initially indicated that section 117B of the 2002 Act is a mandatory consideration in any proportionality assessment, it appeared that consent would not be required, notwithstanding that the birth of a child would be a new matter. After the hearing concluded, I became aware of the Court of Appeal’s judgment in MD Abdur Rahim v SSHD EWCA Civ 930 (20 July 2026), in which it was held that:
…Part 5A always applies when a tribunal considers whether a decision breaches article 8. But the extent to which Part 5A will apply will depend on the procedural facts of the particular appeal, and, in particular, on whether a matter such as a relationship with a qualifying child has either been considered first by the Secretary of State before the appeal is heard, or, if not, is properly before the tribunal in the appeal in question with her consent, given under section 85(5).
5. Mr Magsino made submissions on behalf of the appellant seeking to distinguish Rahim and submitting that the birth of the appellant’s son was not in fact a new matter. I would have rejected those submissions. However, there was no need for me to consider them, as the respondent consented for the birth of the child to be considered. Ms Ahmed raised a preliminary issue relating to that consent in that it appeared that the appellant was seeking to re-open paragraph EX.1 of Appendix FM of the Immigration Rules.
6. I clarified whether it was only paragraph EX.1(a) of the Rules which the appellant contended ought to be considered. Mr Magsino confirmed that it was. I observed that the wording of paragraph EX.1(a) of the Rules is in material respects the same as that of section 117B(6) of the 2002 Act and that given consent had been granted, it would appear there was no prejudice to the respondent in having to address paragraph EX.1(a). Ms Ahmed confirmed that there was not.
7. The issues for determination in the re-making of the decision in this appeal are therefore:
(i) Does the appellant satisfy paragraph EX.1(a) of Appendix FM of the Rules and/or section 117B(6) of the 2002 Act?
(ii) If not, would the appellant’s removal otherwise be a disproportionate and therefore unlawful interference with his rights pursuant to article 8 of the ECHR?
The hearing
8. The appellant and his wife both adopted their witness statements and were tendered for cross-examination. I considered the oral evidence and submissions together with the following documents in reaching my decision:
(i) Composite bundle.
(ii) Respondent’s response to the new matter.
(iii) Respondent’s skeleton argument.
(iv) Appellant’s response to the respondent’s skeleton argument.
(v) Letter dated 1 October 2026 in respect of the appellant’s son.
9. Both parties adduced documents otherwise than in accordance with directions in this matter. I indicated that as they had each had an opportunity to consider the other’s documents, I proposed to admit them all in the absence of any objections. There were no objections and I admitted the documents.
Findings and reasons
Paragraph EX.1(a) of the Rules and section 117B(6) of the 2002 Act
10. Paragraph EX.1(a) is not a standalone provision which, if satisfied, results in a grant of leave to remain. If that paragraph is satisfied, it provides an exception to certain eligibility requirements (English language, finances, and immigration status) under the partner and/or parent provisions of Appendix FM. Because the appellant would be eligible to apply for leave as a partner (albeit that it has been determined that he does not meet the requirements), he is not eligible for leave to remain under the parent provisions of Appendix FM. Paragraph EX.1(a) of the Rules is therefore not material in the re-making of this appeal.
11. Section 117B(6) of the 2002 Act on the other hand is a standalone provision which, if satisfied, subject to article 8 being engaged, means that the removal of the appellant is not necessary in the public interest without the need for any further balancing exercise. My focus is therefore on section 117B(6) of the 2002 Act.
12. I find that the appellant enjoys both private and family life in the United Kingdom. He has lived here since 2016, a period of ten years and during that time has worked with permission and has established significant relationships. He is married to a British citizen and has a British citizen child.
13. The respondent’s decision causes an interference with the appellant’s enjoyment of his family and private life, and I am satisfied that the likely consequences of the interference are sufficiently serious as to engage article 8(1) of the EHCR. There was no dispute that the respondent’s decision was made in accordance with the law or in pursuance of a legitimate aim, and I find that it was.
14. The appellant is married to the mother of his son, and he is named on his son’s birth certificate. I had a copy of the child’s birth British passport before me. There was no dispute that the appellant’s son is a qualifying child within the meaning of section 117D(1) of the 2002 Act. The appellant, his partner, and their son live together in a family unit, and here was no dispute that the appellant has a genuine and subsisting parental relationship with his son. I find that he does.
15. The second limb of the two relevant provisions is whether it would be unreasonable to expect the appellant’s son to leave the United Kingdom with the appellant. Mr Magsino relied on the respondent’s guidance: Family life (as a partner or parent) and exceptional circumstances. His skeleton argument refers to version 22.0; however, the most recent version of the guidance is version 29.0, dated 6 August 2026, and it is that version to which I have had regard.
16. The question of whether it is reasonable to expect a qualifying child to leave the United Kingdom must be determined taking that child’s best interests into account as a primary, albeit not paramount consideration.
17. It will generally be in the best interests of a child to be raised by both parents unless there are countervailing factors. There are no such countervailing factors here and I find that it is in the best interests of the appellant’s son to remain living with both parents, in the United Kingdom, which is the country of his birth and nationality, and to continue to enjoy the rights and entitlements of his British citizenship.
18. As was held by the Supreme Court in ZH (Tanzania) v SSHD [2011] UKSC 4, while British citizenship is not a trump card, it is of particular importance in assessing the best interests of any child. In MA (Pakistan) v SSHD [2016] EWCA Civ 705, the Court of Appeal held that where a child is British, there must be strong reasons before it will be reasonable to expect the child to leave the United Kingdom.
19. The respondent’s position, as set out in her guidance is:
The starting point is that we would not normally expect a qualifying child to leave the UK. It is normally in a child’s best interest for the whole family to remain together, which means if the child is not expected to leave, then the parent or parents or primary carer of the child will also not be expected to leave the UK.
20. The appellant’s son is a British citizen and is not expected and cannot be required to leave the United Kingdom. In addition, the appellant’s wife and mother of his child is also a British citizen who is not expected or required to leave the United Kingdom. This is not a situation where both parents lack leave to remain and are expected to leave the United Kingdom.
21. I had no evidence before me as to whether the appellant’s son is a Filipino national by birth, or if not, whether he is eligible for Filippino citizenship by descent. Similarly, although the appellant’s wife was born in Philippines, I had no evidence before me as to whether she retains Filippino nationality. The appellant is a citizen of Philippines.
22. The appellant’s wife has lived in the United Kingdom since she was eight years old, a period of 20 years. She was educated in this country and has lived all her adult life here. Her immediate family resides in the United Kingdom. In her witness statement, she gave clear evidence about the importance to her of her identity as a British citizen and of the life that she has established here over the past 20 years. Although she has visited Philippines and has extended family there, the overwhelming balance of the appellant’s life is in the United Kingdom. Her evidence, which was not challenged and which I accept, is that she would feel very isolated in Philippines. As a new mother and considering her oral evidence that she is seeking support for her mental health, I find that this is a significant factor and one which could impact negatively on their son if she were without her established support networks.
23. The evidence of the appellant’s wife is that she has visited the Philippines on three or four occasions since she was eight, spending around two to three weeks there on each visit. I find that she has not spent any significant time in Philippines since she was a child of eight years of age and her visits are likely to be of limited value in assisting her to adapt to life in Philippines while at the same time supporting her son to develop an understanding of Filippino culture. Her experience of Filippino culture is predominantly from living in the diaspora rather than direct experience of living in the country. The cultural experience of the diaspora is inevitably different to that of being immersed in the culture in the country. The appellant has been absent from Philippines for ten years, which is a significant period. He was a young adult when he left and therefore spent all his formative years and completed his education in Philippines. His knowledge of Philippines is likely to be more in depth than that of his wife; however, it is nevertheless ten years old, and he has not visited the country in that time. There is no evidence before me that either the appellant or his wife has a wider network of friends or community support in Philippines.
24. Ms Ahmed suggested to the appellant and his wife that they could rely on their family in Philippines and in the United Kingdom for support if necessary. Both disputed this. The appellant stated that it was his responsibility to provide for his family and that he did not wish to be a burden on his or his wife’s family. While this is understandable, the appellant’s evidence was not that his family could not or would not support him. The appellant’s wife’s evidence was more compelling. She accepted that her family may well provide her with some limited support but stated that it would be difficult for them and not sustainable because their resources are only sufficient to meet their own needs. That evidence was not challenged and I accept it.
25. I find that it is unlikely that the appellant, his wife, and their son would receive support from either family in the United Kingdom or Philippines which could meet their essential living needs for anything other than a short, initial period. I take into account the oral evidence that they have some savings on which they can rely, and both the appellant and his wife have a record of employment/self-employment and so have skills and experience that are likely to assist them in finding work. Their circumstances are however that the appellant’s wife is not working as she is caring for their infant son and has never worked in Philippines. Given his age, he will require full-time care which realistically would have to be provided by either the appellant or his wife. The appellant’s wife has no established employment record in that country and would be competing with other potential employees who have an employment record and knowledge of the employment market. The appellant also has not lived in Philippines for at least ten years meaning that he would be in a similar position to his wife with regard to the employment market. It may well take some time before they are able to find employment capable of meeting the essential living needs for a family of three.
26. While the appellant and his wife will not be entirely without support in Philippines, I accept their evidence that the support they can reasonably expect to receive is likely to be limited. I find that it is reasonably foreseeable that the appellant and his wife would struggle to support themselves and their son in the short term. This is a factor to which I attach some weight.
27. The appellant’s son is three months old and is completely dependent on his parents. He is too young to have developed any relationships outside of his immediate family and will readily adapt to life wherever he is with his parents. Given his infancy, there are no communication or language difficulties for him associated with moving to a new country. The appellant and his wife both speak Tagalog and will be able to teach their son. Although it is likely that the appellant’s son would readily adapt to life in Philippines, it may well be at the expense of the development of his identity as a British citizen. This is a factor to which I attach weight.
28. The appellant’s son had a low birth weight, and I accept the consistent evidence of the appellant and his wife that he has been monitored since birth because of this. He was considered to be at risk of developing jaundice and was also monitored for this. It was not clear that this is an ongoing risk. He has had his first vaccinations and was due to have his second batch of vaccinations the week of the hearing. The appellant’s wife stated that he had suffered from heat rash, and the medical evidence confirmed that he had been treated for urticaria and eczema. Both the appellant and his wife acknowledged that they are first time parents and anxious about their son’s health and well-being, which is of course entirely understandable. The medical evidence did not suggest that the conditions were serious or were not successfully treated. There was no evidence that the appellant’s son would be unable to access healthcare in Philippines. The appellant and his wife indicated that they would have to pay for medical care but did not suggest that it would not be available. The appellant’s wife indicated that they have some savings. Other than possible further treatment for his skin conditions or having routine vaccinations, there was no evidence that the appellant’s son has any medical needs. Any concern that he may need medical treatment in the future is therefore simply speculative and born out of natural concern rather than any identified needs. I do not attach any significant weight to this factor.
29. The respondent submits that it is not unreasonable to expect the appellant’s son to leave the United Kingdom in circumstances where he was born in the knowledge that the appellant may not be able to remain here. This is to visit the consequences of the appellant’s actions on the child, which the senior courts have repeatedly held is not appropriate. The lawfulness and precariousness of the appellant’s immigration status are relevant considerations in an overall proportionality assessment but in determining whether it is reasonable to expect the child to leave the United Kingdom, the only limited relevance is where both parents are expected to leave, which is not the position here.
30. In the present case, the child’s best interests lie in remaining in the United Kingdom, his country of birth and citizenship, living in a family unit with both parents. In this case, where one parent is also a British citizen, the best interests of the child carry significant weight. His British citizenship is of particular importance, especially in the light of his mother’s evidence about the importance to her of her British identity. The respondent has failed to identify any strong reasons which would displace the starting point that she would not normally expect a qualifying child to leave the United Kingdom.
31. The cumulative effect of the factors identified leads me to conclude that it would be unreasonable to expect the appellant’s son to leave the United Kingdom to continue family life with the appellant in Philippines. Accordingly, as set out in section 117B(6) of the 2002 Act, the public interest does not require the appellant’s removal. That is determinative of the proportionality assessment. The respondent’s decision is disproportionate and therefore unlawful pursuant to section 6 of the Human Rights Act 1998.
Notice of Decision
32. The appeal is allowed on human rights grounds (article 8 of the ECHR).

J K Swaney
Deputy Judge of the Upper Tribunal
Immigration and Asylum Chamber
14 October 2026