Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: UI-2026-003052
First-tier Tribunal Number: HU/61579/2024

THE IMMIGRATION ACTS

Decision & Reasons Issued
On 16 October 2026

Before

DEPUTY UPPER TRIBUNAL JUDGE WOODCRAFT

Between

LORETA DULAY
(Anonymity order not made)
Appellant
and

SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:

For the Appellant: Mr L Magsino, solicitor
For the Respondent: Mr Ojo, Home Office Presenting Officer

DECISION AND REASONS

Heard at Field House on 5 October 2026

The Appellant

1. The appellant is a citizen of the Philippines born on 18 December 1966. She appeals against a decision of the First-tier Tribunal dated 20 April 2026 which dismissed her appeal against a decision of the respondent dated 9 January 2024. That decision in turn refused the appellant’s application for leave to remain under the Immigration Rules and Article 8. The appellant applied for a student visa on 16 February 2009 which was granted on 7 August 2009 valid until 7 December 2012. She arrived in the United Kingdom on 13 September 2009 with valid leave to enter as a student. This leave expired on 7 December 2012. On 6 December 2023 she made an application, based on her private life, to regularise her status in the United Kingdom. It was the refusal of this application on 9 January 2024 which gave rise to the present proceedings.

The Appellant’s Case

2. The appellant’s case was that she had been living in the United Kingdom for over 17 years. She was living with and in a relationship with a British citizen, Mr Aad. There was substantial evidence of the genuineness of the relationship, such as communications between the parties and their respective families. Mr Aad had a considerable number of medical conditions. He suffers from prostate adenocarcinoma, a history of heart failure with left ventricular systolic disfunction, Type II diabetes mellitus, essential hypertension and degenerative knee changes affecting mobility. and she was caring for him, as she had experience as a nurse. She had been working in the care sector since her student leave had expired. There were insurmountable obstacles to the couple travelling to the Philippines, not least the effect on Mr Aad’s health. The medication that Mr Aad requires would be very expensive in the Philippines and he could not afford it. It would be unjustifiably harsh for her and Mr Aad if she were required to return.

The Respondent’s Case

3. This was summarised by the First-tier judge at [13] of the determination as follows:

“There were scant documents to establish a relationship and his council tax bill showed a single person discount. The evidence suggested the appellant had been living elsewhere and caring for another person when they had both claimed to be living together (since 2020). Mr Aad also stated in his oral evidence that he would be prepared to move to the Philippines. The appellant’s visa expired in 2012, and she had been an overstayer for a long period of time. She has worked illegally and therefore has a poor immigration history.”

The Decision at First Instance

4. The judge did not accept that the appellant and Mr Aad were in a relationship, . The judge accepted that the appellant and Mr Aad knew each other and had done so for some time. There were photographs of them together. The appellant had cared for people in the United Kingdom in the past. She may well be assisting in some way in the care needed for Mr Aad but they had not cohabited since the year to 2020 as claimed. At its highest, the appellant was assisting with the care of Mr Aad. Whilst the appellant had been in the United Kingdom for 17 years which the judge acknowledged was a considerable period of time the appellant would not face any very significant obstacles upon return. She spoke Tagalog. had a wide network of family in country and skills that could be transferred. He dismissed the appeal.

5. I should point out that there is a minor error at the beginning of the termination in that he wrongly states the date when the appellant first arrived in United Kingdom. As the error was in fact in the appellant's favour in that the judge placed her in United Kingdom slightly earlier than she in fact arrived, I do not consider that that error was material.

The Onward Appeal

6. In lengthy grounds the appellant argued in ground 1 that she had not had a fair hearing because a Tagalog interpreter had been requested for her but none had appeared so she was required to give her evidence in English. The hearing took place remotely by CVP and was affected by technical and practical problems. The Judge’s reliance on her answers as central to adverse credibility findings was therefore unsafe. The appellant and Mr Aad met in 2018, their relationship developed over time, it had become serious by around 2020, they were in a genuine and subsisting relationship, and she was now living with him and providing him with day-to-day support because of his age and medical condition. The Judge wrongly treated the council tax single-person discount as significant evidence against cohabitation.

7. The Judge misdirected himself as to the correct legal test under Appendix FM. GEN.1.2(iv) provides that “partner” includes an unmarried partner where the couple have been in a relationship similar to marriage or civil partnership for at least 2 years before the date of application. The test under EX.2. was not whether relocation is theoretically imaginable. The question is whether there would be very significant difficulties which could not be overcome or which would entail very serious hardship for the Appellant or her partner if family life continued outside the United Kingdom. The judge did not adequately take into account the difficulties in relocation with the appellant that Mr Aad would have due to his medical situation. Under GEN.3.2. even if the Appellant could not satisfy every requirement of the partner route, the Tribunal still had to ask whether refusal would result in unjustifiably harsh consequences for the Appellant or her partner. If permission was granted and the appeal succeeds, the Tribunal should set aside the decision of the First-tier Tribunal and remit the appeal for a fresh hearing before a different judge.

8. In granting permission to appeal the First-tier wrote:

It is apparent from the online portal that a Tagalog interpreter was requested. It is likewise clear from the decision that one was not present at the hearing, and that the Appellant gave evidence in English (for example, at [10]). This does, at face value, suggest that there is at least an arguable issue of procedural unfairness… In circumstances where an interpreter was requested but was not provided, however, I am satisfied that it is at least arguable that the hearing was unfair, albeit that this may not necessarily have arisen through any error on the part of the judge. Grounds two, three, and four appear to amount to disagreements with the weight given to the evidence and the findings of fact reached. However, there is a degree of overlap with ground one, given that the assessment of the evidence may be impacted by the circumstances in which that evidence was given. I accordingly do not restrict the grant of permission.

The Hearing Before Me

9. In consequence of the grant of permission the matter came before me to determine in the first place whether there was a material error of law in the decision of the First-tier Tribunal such that it fell to be set aside. If there was then I would make directions on the rehearing of the appeal. If there was not the decision at first instance would stand.

10. The appellant's solicitor made an application for an adjournment during the hearing which he explained was because his sister-in-law had just passed away and he needed to return to the Philippines is a matter of urgency to deal with matters. However, he indicated that in the circumstances he was prepared to continue to represent his client the appellant in this appeal and the matter proceeded.

11. For the appellant her solicitor stated that the appellant entered the United Kingdom on 13 September 2009 with student leave. The date given in the first paragraph of the determination was therefore wrong. From 2020 the appellant has been in a serious relationship with Mr. Aad. They started to cohabit under the same roof from December 2024 onwards. The appellant could speak English but that was without considering that cross examination was different and required a higher standard of English. The sponsor Mr. Aad could not travel to the Philippines. The appellant did care for the sponsor. The appeal should be allowed outright but if not it should be remitted back to the First-tier Tribunal for a rehearing.

12. For the respondent the presenting officer said that not much could be added to the rule 24 response to the grant of permission. The relationship between the appellant and the sponsor was only brought up after the refusal letter although the judge knew about the claim at the hearing. From the perspective of the respondent the issue of interpretation was the appellant's strongest ground. The rule 24 response to the grant of permission said the appellant was legally represented and there was no indication of problems with interpretation. The judge had no concerns. The appellant had been in the United Kingdom for a significant period of time but it was not automatic that she should still be allowed to stay.

Discussion and Findings

13. There are two difficulties for the appellant's appeal which she must engage with. The first is that the judge at first instance did not accept that she was a credible witness and in particular did not accept she was in a relationship with Mr Aad. The second difficulty is that even if the appellant can show that she is in a relationship with Mr Aad, the appellant is still outside the immigration rules because she has no leave to remain. She must be able to show that it would be unduly harsh for her to return to Philippines with or without Mr Aad.

14. It is not clear to me from the determination and the evidence that was submitted to the First-tier about the relationship between the appellant and the sponsor why the existence of that relationship was not accepted. The appellant had explained that she had looked after a number of elderly and unwell people in this country. Working unlawfully appears to be way she supported herself for much of the time she has been here since her visa expired. There was a considerable amount of supporting evidence to suggest that the appellant and Mr Aad were in a relationship since 2020 that is six years by the time the matter came before me on appeal.

15. The First-tier judge was evidently impressed by the fact that Mr Aad was claiming council tax benefits in his sole name but that of itself is not in my view decisive to show that the appellant was not in a relationship. The appellant could not claim for herself or be part of Mr A'ad’s application for assistance with Council tax benefit because she had no status in this country. She could not apply for it and it would make no difference to Mr Aad's application. The judge was in error in finding that the couple were not in a relationship.

16. In arriving at this conclusion I bear in mind that the judge had the benefit of seeing the witnesses give evidence including the appellant and Mr Aad. It seems that at least one witness was not heard because she could not find a suitable place to give her evidence from. There were friends of the couple who could testify as to the relationship. That the appellant was in a relationship with Mr Aad was not however the end of the story.

17. Although the appellant had been in United Kingdom for 17 years, a considerable length of time, there is no de minimis rule that the appellant's application should be granted because she only relatively narrowly missed completing the 20 years required by the Immigration Rules. It is a factor to weigh in the balance but given that she was not here lawfully it cannot carry such weight as to outweigh the weight that needs to be placed on the respondent side of the scales.

18. Permission to appeal was granted because there was potentially an error in the hearing of the appeal because of a mix-up over the interpreter who should have been called but was not. The hearing was held over the Internet. The appellant had specifically asked for an interpreter in the tagalong language and was therefore always at a potential disadvantage because English was not her first language. The appellant's solicitor who appeared at first instance and also appeared before me did not seek an adjournment for a Tagalong interpreter to be arranged. One can understand the reluctance of a lay witness such as the appellant to see a case that has been brought after many years in this country being adjourned again to a later date. It is understandable that the appellant would have preferred to continue with the appeal rather than have the matter adjourned. Though it was potentially a problem that she might give some evidence wrongly because English was not her first language.

19. These potential problems went to the issue of the appellant’s evidence about whether she and Mr Aad were in a relationship and whether the appellant had effectively explained through English what the relationship was. Since I accept that the evidence before the Tribunal at first instance pointed to the appellant being in a relationship with Mr Aad I do not consider that this case needs to be reheard for the appellant such that she has to give her evidence all over again. The proportionality exercise balancing the rights of the appellant and sponsor against the public interest in maintaining immigration control should be considered in the light of the positive finding in the appellant's favour about the existence of her relationship with the sponsor. The impact of the decision to refuse leave to remain is significantly different now than it appeared at first instance as it would now be affecting a married couple.

20. The question is whether the decision to remove her would put this country in breach of its obligations under article 8 and/or immigration rules. It is a high threshold for an appellant who is outside the immigration rules to show that they should nevertheless be granted some form of leave to remain. That is why both the rules and the jurisprudence speak of the need to show unduly harsh consequences. The appellant relies in part on Mr Aad’s medical condition such that it would be unduly harsh to expect him a British citizen to leave the United Kingdom and live with the appellant in the Philippines. The list of medical problems he has are indeed quite considerable.

21. If the relationship of the appellant to MrAad was that she was caring for him as she had cared for others in the past (whose names were referred to in evidence) then it might not be considered to be unduly harsh. The appellant could return to the Philippines a country of which she is a national and where she speaks the language. Mr Aad would remain in this country and have access to medical services here under the NHS for example. However that is not the situation if the appellant and Mr Aad are in a relationship as I have found that they are.

22. I indicated at the conclusion of the hearing that if I found a material error of law in the judge's determination I would set it aside and remake the decision of the appellant's appeal. The reason for this is because these proceedings have taken a very long time and the appellant has been waiting a long time for her case to come to court. Given Mr Aad’s fragile medical condition he too is entitled to a relatively fast response to his claim that the appellant should remain living with him in the United Kingdom thereby assisting him with the care he needs. There was a material error of law in the judge's determination in that through no fault of the judge’s there was a wrong view taken of the relationship between the appellant and Mr Aad influenced by the difficulties with interpretation.

23. I therefore proceed to deal the substantive appeal. There is no doubt that there would be unduly harsh consequences for Mr Aad if either he has to go to the Philippines or has to remain here without the appellant. His conditions are serious and he requires the care of his partner, the appellant. The availability of sufficient medical care if he went and the sharp difference in climate would also make it unduly harsh. There would be harshness for the appellant to return on her own to the Philippines as it would separate the parties and end the private and family life she has built here. In those circumstances I find that the country would be in breach of its obligations under the immigration rules and article 8. I allow the appellant's appeal.

Notice of Decision

The decision of the First-tier Tribunal involved the making of an error of law and I Set aside the decision of the first-tier Tribunal. I remake the decision in this case by allowing the appellant's appeal against the decision of the respondent dated 9 January 2024.

Appellant's appeal allowed

Signed this 14th day of October 2026

……………………………………………….
Judge Woodcraft
Deputy Upper Tribunal Judge