Tribunal decisions

The decision

IN THE UPPER TRIBUNAL
IMMIGRATION AND ASYLUM CHAMBER Case No: UI-2026-001509
First-tier Tribunal No: PA/67201/2023
LP/09368/2024

THE IMMIGRATION ACTS

Decision & Reasons Issued:

25th August 2026

Before

DEPUTY UPPER TRIBUNAL JUDGE J K SWANEY

Between

ANNIEBOLYN DEONA
(NO ANONYMITY ORDER MADE)
Appellant
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: Ms E Atas, counsel, instructed by MBM Solicitors
For the Respondent: Mr E Terrell, senior presenting officer

Heard at Field House on 12 August 2026

DECISION AND REASONS
Anonymity
1. I have considered whether to maintain the anonymity order and have decided that it is no longer required. The reason for the order being made initially was that the appellant’s case involved a claim for asylum and the need to ensure that the United Kingdom discharges its obligations under the Refugee Convention outweighed the principle of open justice. That is no longer the case, as the appeal relates solely to article 8 of the ECHR and there is no risk arising to the appellant if the anonymity order is no longer in force. The interests of the individual no longer outweigh the public interest in open justice.
Background
2. The background to the appellant’s appeal is contained in the Upper Tribunal’s decision dated 16 June 2026 and is not repeated here.
3. 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).
4. In setting aside the judge’s decision, the Upper Tribunal preserved the judge’s findings of fact. The Upper Tribunal found that the appellant could not satisfy the partner provisions as at the date of hearing and therefore even though the judge found that there would be insurmountable obstacles to family life continuing outside the United Kingdom, that was not determinative of the appeal and was simply relevant to the assessment of proportionality.
The hearing
Preliminary issues
5. On 30 April 2026, the appellant made an application to rely on evidence not before the First-tier Tribunal. The evidence consisted of a marriage certificate evidencing the appellant’s marriage on 23 March 2026; Home Office correspondence regarding the appellant’s proposed marriage dated 11 February 2026; photographs of the appellant’s wedding and reception; evidence of the appellant’s continued employment from February, March and April 2026; appellant’s bank statements; medical records for the appellant and her husband; appellant’s Application Registration Card issued after the hearing in the First-tier Tribunal; P45 for the appellant; evidence of the continued cohabitation of the appellant and her husband.
6. Mr Terrell confirmed that he had no objection to the admission of the evidence and further, that the respondent consented to the new matter of the appellant’s marriage being considered.
7. I determined that the evidence was not available at the hearing before the First-tier Tribunal, as it was updating evidence and related to events post-dating the hearing. I accept therefore that there was no delay in obtaining or providing the evidence. The date for assessment of a breach of human rights is the date of hearing, and I considered that it was therefore both appropriate and necessary in the interests of justice to admit the evidence.
8. I sought to confirm the issues with the parties, indicating that my understanding was that the sole issue was the proportionality of the respondent’s decision notwithstanding the appellant’s marriage. I noted that while her marriage may mean that were the appellant to make a new application today, she may satisfy the Rules, the marriage did not change the position as at the date of the decision under appeal. So, the fact that the Rules may be met now is relevant to the question of proportionality when assessing article 8, for which the relevant date is the date of hearing, but not satisfaction of the Rules at the date of decision.
9. Mr Terrell indicated that the respondent’s position was slightly different given that the fact the appellant was not married was the sole reason for the refusal under the Immigration Rules. He drew my attention to paragraph GEN1.9 of Appendix FM of the Rules and suggested that this provides that certain validity requirements can be disregarded. Ms Atas did not have anything to add.
10. Having looked at paragraph GEN1.9, I indicated that I disagreed that this changed the position, as that provision simply allows the requirement for a valid application to be made to be waived in certain circumstances. Paragraph GEN1.9 does not provide that the need to meet the substantive requirements of the partner provisions can be waived either at the date of application or the date of decision. That eligibility under the Rules falls to be assessed at the date of decision on the basis of the Rules in force as at that date (subject to any transitional or savings provisions contained in relevant Statements of Changes) is made clear in Odelola v SSHD [2009] UKHL 25.
11. The appellant and her husband were both present at the hearing, but in light of the preserved findings and the admission of the further evidence, were not called to give evidence.
Submissions
12. Ms Atas focused her submissions on what she contends are the factors that tip the balance in the appellant’s favour. In particular, she focused on those set out in paragraph 48 of the judge’s decision which relate to the appellant’s husband including his poor health and the difficulty he would face in managing his conditions in an unfamiliar country; the fact he may not have or be able to obtain leave to remain in the Philippines; the support he requires in the home, which is provided by the appellant; the cost of living in the Philippines and the fact he is reliant on his United Kingdom state pension. She also relied on the findings about the appellant’s family and their circumstances in the Philippines, including that they would not be able to support the couple.
13. Ms Atas relied on the fact of the appellant’s marriage together with the finding of the judge that there are insurmountable obstacles to family life continuing outside the United Kingdom, which mean that it is likely the appellant would now satisfy the Rules.
14. Ms Atas submitted that section 117B(4) which requires that little weight should be given to a family life established while a person is in the United Kingdom unlawfully does not mean no weight, relying on Rhuppiah v SSHD [2017] UKSC 75. She submitted that weight can be given to the appellant’s family life and that the factors identified are sufficiently compelling to outweigh the public interest.
15. Mr Terrell relied on the respondent’s decision and review. He relied on the Court of Appeal’s decision in IA & ors v SSHD [2025] EWCA Civ 1516 for his submission that an exceptional case is required before the public interest will be outweighed.
16. Mr Terrell submitted that the present case is not such an exceptional case. He pointed out the relatively short duration of the appellant’s family life with her husband and the fact that they were both aware of the appellant’s immigration status when they entered into their relationship. He submitted that their family life is precarious.
17. In relation to the weight to be given to the appellant’s family life, Mr Terrell relied on Agyarko v SSHD [2017] UKSC 11 and Butt v SSHD [2025] EWCA Civ 189 for his submission that this is not one of the rare cases where more weight can be given to a family life established while the appellant’s presence in the United Kingdom is unlawful. He contended that the required compelling factors are not present.
18. On the issue of whether the appellant would now satisfy the Rules were she to make a new application, Mr Terrell submitted that this was not a sufficiently compelling factor. Mr Terrell submitted that were the appellant to make an application for entry clearance, the finding that there are insurmountable obstacles to family life continuing outside the United Kingdom would be considered. He submitted that this was not a case in which the prospect of permanent separation was an issue.
19. Given that submission, I asked whether the appellant’s case now comes within the narrow circumstances in which the principles in Chikwamba v SSHD [2008] UKHL 40 would apply. Mr Terrell replied that it was not, because the ability to apply for entry clearance was not the only reason for refusal.
20. In reply, Ms Atas submitted that if an application were made today, Chikwamba would apply. She relied on the respondent’s advice about processing times for entry clearance applications where the financial provisions are not met, which is currently 12 months. She noted that there is no service standard for decisions in cases where the provisions of the Rules are not met in in-country applications. Ms Atas submitted that this is an additional factor to be given weight in the assessment of proportionality.
Discussion
21. The sole issue before me is whether the respondent’s decision was disproportionate, and therefore unlawful pursuant to section 6 of the Human Rights Act 1998.
22. The factual findings made by the judge were preserved. I make the following further findings on the basis of the documentary evidence admitted pursuant to rules 15(2A) of the Tribunal Procedure (Upper Tribunal) Rules 2008:
(i) The appellant and her husband married on 26 March 2026. The appellant and her husband have continued to reside together in the United Kingdom, and I accept that this is evidence that they remain in a genuine and subsisting relationship.
(ii) The appellant is no longer in employment, which appears to be as a result of her permission to work being rescinded when she was issued with a new Application Registration Card on 12 May 2026.
(iii) There is no evidence that the appellant is in receipt of public funds and she has substantial savings. She remains financially independent despite no longer being employed.
23. That article 8(1) is engaged was not in dispute and I find that it is. It was also not disputed that the respondent’s decision was made in accordance with the law and in pursuance of a legitimate aim and I find that it was.
24. The maintenance of immigration control is in the public interest and the failure to satisfy the Immigration Rules is a factor that carries significant weight in the assessment of proportionality.
25. The appellant speaks English. This is evidenced by the appellant’s employment in the United Kingdom; the fact her husband does not speak Tagalog; the appellant’s medical records which record her as an English speaker; and her ability to communicate in English at the hearing before me. This is a neutral factor.
26. The appellant is financially independent. She has worked with permission for a number of years. Although that permission was rescinded when her appeal was dismissed, she provided evidence of substantial savings and there is no evidence she has had recourse to public funds. This is a neutral factor.
27. The appellant has established a strong private life in the United Kingdom. She entered the United Kingdom lawfully, and so it can be said to have been established when her status was lawful. However, the appellant overstayed and her private life continued to develop at a time when her status was unlawful, and I bear in mind Deelah & ors (Section 117B – ambit) (Rev 1) [2015] UKUT 515 (IAC), where it was held that a private life established in the wording and in the context of section 117B(4) and (5) is not to be construed as being confined to the ‘initiation, or creation, of the private life in question’ but extends to its continuation or development. The appellant’s status in the United Kingdom has always been precarious. Pursuant to sections 117B(4) and (5), I am required to attach little weight to the appellant’s private life. This does not mean no weight however, and I do attach a little weight to it.
28. The appellant’s husband is a qualifying partner, and they are in a genuine and subsisting relationship. The appellant’s family life with her husband was established when the appellant’s status in the United Kingdom was unlawful. The appellant and her husband were both aware that the appellant did not have the right to remain in the United Kingdom when they entered into their relationship. I am required to attach little weight to the appellant’s relationship pursuant to section 117B(4) of the 2002 Act. Once again, this does not mean no weight. I am mindful that in order to attach more than a little weight to the relationship, I must be satisfied on the balance of probabilities that there are compelling factors which justify this.
29. In the present case, I consider that there are such compelling factors. A factor to which I attach significant weight is that there are insurmountable obstacles to family life continuing outside the United Kingdom. This is a single factor, but it is one that takes into account all of the following: the age and length of residence of the appellant’s husband in the United Kingdom and the fact that his existing support networks are all here; his family ties in the United Kingdom in the form of his elderly, vulnerable sister; his lack of ability to speak Tagalog; the fact that he is retired and in receipt of a state pension and highly unlikely to find work in the Philippines; his poor health and need for care and medical treatment; the difficulty he would face in managing his health conditions in an unfamiliar country where he does not speak the language and the uncertainty about the cost of treatment to him as a British national; the appellant’s age, which the judge accepted would impact negatively on her ability to find work on return; the lack of anything other than emotional support from the appellant’s family.
30. Some of these concerns can be alleviated to some extent and I considered whether that means that the factors identified are not sufficiently compelling. The appellant lived in the Philippines until she was in her early 50s and there is nothing to suggest that she no longer has any knowledge of how life in society there operates. She will therefore be able to support her husband to adjust to life in the Philippines. She may be able to support him in learning Tagalog and will be able to support him to communicate with others. The appellant’s family will not be able to accommodate them or support them financially but are likely to be able to provide support of a more practical nature, for example assisting the couple to manage the things that need to be done when moving countries, e.g. registering with the authorities if it is required, finding a GP, engaging with the local community etc. The limited extent of the support the appellant could provide to her husband and the very limited extent of the support her family can provide are not sufficient to overcome the factors I have identified. I therefore consider that they are sufficiently compelling to mean that I can pace significant weight on the appellant’s family life with her husband.
31. I have considered the fact that the appellant could now return to the Philippines and make an application for entry clearance. It was not suggested that the appellant could meet the financial requirements of the Rules and given that her husband is in receipt of a state pension, I find that he could not.
32. I have had regard to Ms Atas’ submission about the processing times for entry clearance applications. Ms Atas submitted that where the financial requirements are not met, the current processing time for an application for entry clearance for a partner/spouse is 12 months. As there was no evidence before me, I had regard to the respondent’s guidance, which is publicly available online at GOV.UK. That guidance confirms Ms Atas’ submission. In addition, it provides that there is no customer service standard for an application for entry clearance or in-country applications where the financial requirements are not satisfied (or are not required). This is an additional factor to which I attach weight. The reason I attach weight to it is that the appellant is her husband’s carer. If she were to leave the United Kingdom to apply for entry clearance, it is not realistic for him to join her, meaning that they would be separated for at least 12 months. I find that this would have a significant, detrimental effect on the appellant’s husband, with potential negative consequences for his health and well-being. He would be able to access support from the NHS and/or social services; however, this would be subject to an assessment of his needs and may take some time for arrangements to be put in place.
33. Notwithstanding the finding by the judge that there would be insurmountable obstacles to family life continuing outside the United Kingdom, as Mr Terrell indicated, an entry clearance officer would carry out their own assessment of whether the appellant met the Rules. I note that an entry clearance officer will always carry out their own assessment, even following an allowed appeal. There is therefore no guarantee that an application for entry clearance would succeed, even in light of the positive findings made in respect of paragraph EX.1 of the Rules. The delay in resolving the appellant’s status and the resultant length of separation could be even longer than 12 months. The period of separation and the effect of separation on the appellant’s husband are factors to which I attach weight.
34. The cumulative effect of the factors identified lead me to conclude that the respondent’s decision creates unjustifiably harsh consequences for the appellant and her husband such that it is disproportionate. I find that the particular circumstances of the appellant and her husband are sufficiently compelling to outweigh the public interest. Accordingly, I find that the decision is unlawful pursuant to section 6 of the Human Rights Act 1998.
Notice of Decision
35. 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
13 August 2026