UI-2021-001181

• Status of case: Unreported
• Hearing date: 6 Jan 2026
• Promulgation date: 9 Jan 2026
• Publication date: 27 Jan 2026
• Last updated on: 27 Jan 2026

The decision

IN THE UPPER TRIBUNAL
IMMIGRATION AND ASYLUM CHAMBER
Case No: UI-2021-001181

First-tier Tribunal No: HU/07266/2022

THE IMMIGRATION ACTS

Decision & Reasons Issued:
On 9 January 2026

Before
UPPER TRIBUNAL JUDGE NORTON-TAYLOR

Between
MA
(ANONYMITY ORDER MADE)
Appellant
and

SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the appellant: Mr M Aslam, Counsel, instructed by Lexnova Solicitors LLP
For the respondent: Mr J Nappey, Senior Presenting Officer

Heard at Field House on 6 January 2026

Order Regarding Anonymity
Pursuant to rule 14 of the Tribunal Procedure (Upper Tribunal) Rules 2008, the appellant and his family members are granted anonymity.
No-one shall publish or reveal any information, including the name or address of the appellant, likely to lead members of the public to identify the appellant and/or his family members. Failure to comply with this order could amount to a contempt of court.

RE-MAKING DECISION AND REASONS

Introduction
1. This is the re-making of the decision in the appellant’s appeal against the respondent’s refusal of his human rights claim. This follows my previous error of law decision, issued on 4 December 2023, which set aside the decision of the First-tier Tribunal allowing the appellant’s appeal against the respondent’s refusal.

2. Previously, the appellant has been referred to as “MSA”. In line with the Tribunal’s current practice, I am reducing the initials from three to two: the appellant will now be referred to as “MA”.

3. The appellant, a citizen of Pakistan, came to the United Kingdom in January 2010. He last held leave to remain on 11 March 2016, which had been granted to him on 2 October 2013 in respect of his relationship with his British wife, X, and their British daughters, A and B, who were born in February 2013 and June 2014 respectively. X is of Pakistani origin. Prior to her naturalisation, she was recognised as a refugee by the respondent.

4. The appellant has a long history of domestic violence against X. He has been convicted on two occasions of common assault against her. On 19 December 2019, he was sentenced by the Crown Court to 13 months’ imprisonment for assault occasioning actual bodily harm, following his conviction in the magistrates’ court. That conviction triggered the automatic deportation provisions in the UK Borders Act 2007. The appellant is a “foreign criminal”.

5. The appellant made a human rights claim in response to the deportation action. He relied on his relationship with his daughters and his wife, and the length of his residence here.

Procedural history
6. As will be immediately apparent from the appeal reference number and the date of my error of law decision, this case has a very protracted history. The parties are well-aware of the details and I need not set them out here. Suffice it to say that some of the delay has been caused by the failure of the appellant’s legal representatives to organise and prepare their case in good time. The most significant delay was caused by the need to obtain further evidence from the relevant local authority’s Children’s Services department in light of a development which occurred in July 2024.

The error of law decision
7. The error of law decision is annexed to this re-making decision and the two should be read together. In summary, I concluded that the First-tier Tribunal had failed to give legally adequate reasons for its conclusion that it would have been unduly harsh for the appellant to be deported to Pakistan whilst his two children, A and B, remain in the United Kingdom with their mother, X. My conclusion on the adequacy of the reasons provided was based on the context of this particular case, with specific reference to the report of an independent social worker, Dr Farooqi. The judge had placed very significant weight on that report, but had failed to adequately explain why this was the case, given its substantial shortcomings.

The live issues
8. In setting aside the First-tier Tribunal’s decision, I preserved a number of findings made by the judge (which had not in any event been challenged by either party):

(a) The appellant is not at risk on return to Pakistan;

(b) The appellant cannot satisfy Exception 1 under section 117C(4) NIAA 2002;

(c) The appellant does not have a genuine and subsisting relationship with X;

(d) The appellant does have a genuine and subsisting relationship with A and B;

(e) It would be unduly harsh on A and B to go to Pakistan to live with the appellant.

9. Following further evidence and submissions, I rescinded the preservation of the finding at (c), above: the issue of the relationship between the appellant and X is now live.

10. The scope of this re-making decision has therefore been narrowed considerably.

11. There is no protection claim in play.

The legal framework
12. The essential legal framework (both legislative and arising from the binding authorities) is well-known to all and I do not propose to set out at length here.

13. In light of the preserved findings, I am concerned with section 117B and section 117C(1), (2), (5), and (6) of the Nationality, Immigration and Asylum Act 2002, as amended.

14. As regards the relevant authorities on deportation, I have directed myself in particular to KO (Nigeria) v SSHD [2018] UKSC 53, HA (Iraq) v SSHD [2022] UKSC 22, NA (Pakistan) v SSHD [2016] EWCA Civ 662, and most recently, Kapikanya v SSHD [2025] EWCA Civ 987. Without citing them here, I have also taken account of the various other authorities referred to by the parties in their respective arguments.

The evidence
15. I have a bundle provided by the appellant for the resumed hearing, indexed and paginated 1-734 (736 in the PDF format). Unfortunately, that did not contain all relevant materials and I have the respondent’s appeal bundle as a separate document. Prior to the resumed hearing, the respondent provided an updated PNC report, dated 17 November 2025.

16. The day before the resumed hearing, the appellant’s representatives provided a supplementary bundle, indexed and paginated 1-132. There was no accompanying explanation for the extremely late service. The possibility of a supplementary bundle had not been raised by the representatives at any time prior to it being filed and served. Mr Aslam, who as ever acted with consummate professionalism, had not been provided with any instructions as to why the supplementary bundle was so late. He submitted that despite the representative’s failings, admitting the supplementary bundle would not cause prejudice to the respondent, did not contain anything of particular importance, and that fairness was an important consideration.

17. Mr Nappey opposed the admittance of the supplementary bundle.

18. I refused to admit the supplementary bundle. Its provision was blatantly in contravention of all previous directions issued in this case. There has been no explanation, let alone a satisfactory one, as to why the bundle was served so late in the day. The live issues in this appeal have been clear for a considerable period of time, and at least from the end of October 2025 when I confirmed that the appellant’s relationship with X was no longer the subject of a preserved negative finding. There has been ample time to have collated the evidence contained the supplementary bundle.

19. Of course, fairness is an important consideration. However, that cuts both ways: admitting a 133-page bundle at the very last minute would inevitably result in some prejudice to the respondent. Mr Nappey had prepared his case (clearly with considerable care) in advance of the hearing and expecting him to then to read and properly digest the various materials contained in supplementary bundle ‘on the hoof’, as it were, or even after necessarily limited additional time on the day would be to demean the respondent’s entitlement to fairness.

20. In addition, this is not a case concerning a claim for international protection where greater flexibility may be required. The evidence in the supplementary bundle is not of the greatest significance in any event: for example, does not contain important medical evidence relating to some new condition. Nor does it have a significant bearing on the circumstances of the two children.

21. In all the circumstances, it was both fair and plainly consistent with the importance of procedural rigour to exclude the supplementary bundle.

22. The appellant and X attended the hearing and gave evidence with the assistance of an Urdu interpreter. There were no difficulties with interpretation. The oral evidence is a matter of record and in addition I took careful note of what was said. I will deal with relevant aspects of this evidence was setting out my findings and conclusions, below.

The parties’ submissions
23. Mr Nappey relied on the respondent’s refusal letter and his skeleton argument, dated 31 December 2025 (references to the appellant having assaulted X in 2023 were removed). It is also common ground that the police took no further action in respect of that incident). He submitted that in light of the evidence as a whole, the appellant did not have a genuine and subsisting relationship with X. If he did, the evidence did not demonstrate that a separation of the couple would result in unduly harsh consequences for X. She had been able to properly care for the children in the past when the appellant had not been living in the family home. She could turn to others for support, although that was not essential.

24. Mr Nappey submitted that it would not be unduly harsh for the two children to be separated from the appellant. They did not suffer from any medical or behavioural difficulties and their mother would be able to cope in the appellant’s absence, as she had in the past. Beyond Exception 2, there were no very compelling circumstances. There was an absence of positive rehabilitation and the public interest in this case was strong.

25. Mr Aslam relied on his skeleton argument, dated 27 February 2025. On the genuineness of the relationship, he relied in particular on X’s oral evidence which he described as “overwhelmingly credible”. On the question of undue harshness, it was submitted that the appellant had not been out of X and the children’s lives for lengthy periods and that even when he was not at the family home, there had been regular contact. There had been no violence against X since 2019. There was a strong bond between the appellant and his daughters. It was submitted that the children had suffered a “great deal of trauma” as result of what had happened in the past. It was in their interests to have both parents as part of their lives. I was urged to consider the position of X and the two children cumulatively. Reliance was placed on the Child and Family Assessment Form (“CFA”), dated 4 February 2025, and the report of Dr Mukhtar, Consultant Psychiatrist, dated 12 January 2025, prepared in respect of X. Mr Aslam fairly acknowledged that it would be difficult to demonstrate very compelling circumstances over and above the matters he relied on in respect of Exception 2. He did not seek to place reliance on the report of the independent social worker Dr Farooqi, whose evidence had been strongly criticised in the error of law decision.

26. At the end of the hearing I reserved my decision.

Findings and conclusions
27. I have considered all of the relevant evidence in the round before making my findings of fact and reaching my evaluative conclusions.

Does the applicant have a genuine and subsisting relationship with X?
28. As a starting point, I take account of the fact that the First-tier Tribunal’s finding that there was no genuine and subsisting relationship as of November 2021 was not challenged on appeal. In light of that and the obvious sustainability of the finding in any event, I originally preserved the finding. It was only after new evidence and submissions were put forward in October 2025 that I decided to rescind the preservation of the adverse finding on the relationship. That new evidence and the accompanying submissions related to a period when after the First-tier Tribunal made its finding. Taking the evidence as a whole, I find that there was no genuine and subsisting relationship as at 2021.

29. It is difficult to determine the state of the relationship thereafter. There may have been a degree of reconciliation. However, there is no doubt that an incident occurred in early April 2023 which caused X to ring the police, who in turn arrested the appellant and remanded him on police bail with conditions not to attend the family home and not to contact X in any way. In her oral evidence, X attempted to shift the blame (or, as she put it, “the responsibility”) for involving the police. With respect, I entirely reject that aspect of her evidence. It is not a criticism of X, but rather a finding that in light of the appellant’s past behaviour and (at that time) continuing use of cannabis, it is highly likely that he did in fact verbally abuse X to the extent that she was genuinely in fear and felt compelled to call the police. For the avoidance of any doubt, I am not making a finding that the appellant physically assaulted X on this occasion.

30. Following from the above, I have significant concerns about the state of the relationship prior to April 2023. In any event, I find it is much more likely than not that there was no genuine and subsisting relationship between that point in time and July 2024.

31. The essence of the appellant’s case on the relationship appears to be that it was, at the latest, re-established following his return to the family home in July 2024. I accept that he did in fact begin living there from that time and that he has remained there to date. That of itself does not demonstrate the re-establishment of a genuine and subsisting relationship where none existed previously.

32. There is virtually no documentary evidence concerning the claimed relationship (the supplementary bundle has been excluded).

33. Both the appellant and X have given evidence that the relationship is genuine and subsisting. I do not accept the appellant’s evidence as reliable. He has every reason to assert that his relationship with X is genuine and subsisting in order to assist his appeal. His return to the family home in July 2024, unannounced to the local authority, occurred during the course of the current proceedings and the knew that any possible hope he had of remaining in the United Kingdom rested on the claimed family life with X and/or his children. Moving back in was, I find, an attempt by the appellant to create a fait accompli, at least in respect of the local authority’s position: they were not informed until sometime after the event and the CFA took place over six months afterwards, by which time the appellant was in a better position to assert his re-establishment into ‘normal’ family life with X and the two children. To an extent, therefore, I find that the appellant has been manipulative. Specifically, I do not accept the appellant’s explanation that he did not at the time think it necessary or appropriate to inform the local authority before he moved back into the family home.

34. I combine what I have just said with other adverse aspects of the appellant’s history and evidence. There is the appellant’s history of domestic abuse and violence against X. I take account of the fact, as I find it to be, that he has been untruthful in respect of his use of alcohol and/or cannabis over the course of time. I find that he was untruthful in oral evidence when denying that he had called the two children “little bitches” and I have no hesitation in preferring what is recorded in the Sentencing Remarks. I find that the appellant lied in oral evidence when he claimed to be the subject of legal cases in Pakistan. Nothing about that is said in his latest witness statement and there is a preserved finding that he would not be at risk on return to Pakistan. His claim was an untruthful attempt to add ballast to his case.

35. The oral evidence of X was impressive, in so far as it went. I must say that I got the distinct sense that what lay at the heart of her evidence was the desire to do the best for A and B. In respect of her relationship with the appellant, and without wishing to sound patronising in any way, I also formed the distinct sense that X repeatedly sought to minimise the appellant’s behaviour towards her over time and to assume a degree of blame or responsibility on her shoulders for some if not many of the difficulties which have occurred (see also [29], above). I would suggest it to be well-understood that victims of domestic violence often adopt that position. However, I am not seeking to take judicial knowledge of this. What I am doing is making a finding that X was not to blame for any of the appellant’s abuse and misconduct. In this regard, the uncontroversial evidence of the appellant’s abuse, the convictions, the restraining order, and the involvement of Children’s Services, combine to outweigh X’s own evidence that she made mistakes or bore some responsibility for the appellant’s abuse.

36. Bringing matters back to the question of the relationship, I find that it is more likely than not that X does not regard her relationship with the appellant as genuine and subsisting, but instead sees it as the best means for ensuring that the children have their father in their lives on a day-to-day basis. Put another way, X as adopted a pragmatic view to the current arrangements.

37. Even if I were to find that X does believe a relationship with the appellant is genuine and subsisting, I do not accept the appellant’s evidence and so the relationship as a whole would not be genuine and subsisting: in other words, it would be in one direction only.

Exception 2: would it be unduly harsh on X if the appellant was deported and she remained in the United Kingdom?
38. I address this issue in case I am wrong in concluding that there is no genuine and subsisting relationship between the appellant and X.

39. Given the preserved finding, I am only concerned with the “stay” scenario; i.e. where X remains in United Kingdom whilst the appellant is deported to Pakistan.

40. The unduly harsh test is stringent, albeit fact-specific to any given case.

41. In carrying out my assessment of X’s circumstances, I have borne in mind any possible consequences which might have a knock-on impact on the two children.

42. For the following reasons, I conclude that it would not be unduly harsh on X if the appellant was deported to Pakistan.

43. First, to the extent that it is relevant to X’s circumstances, I place no weight on the independent social worker’s report of Dr Farooqi, for reasons set out in the error of law decision and in light of Mr Aslam’s realistic acknowledgement of its significant shortcomings.

44. Secondly, I place only limited weight on the report of Dr Mukhar. In large part I agree with and adopt the reasons set out at [30(a)-(f)] of Mr Nappey’s skeleton argument. It might appear as though the author had seen X’s GP records, but it is not clear. No recent GP records are in evidence before me. To the extent that Dr Mukhtar comments on the impact on the children’s emotional and/or psychological well-being if the appellant was deported, I place no material weight on this aspect of the report. Although the instructions provided by the appellant’s legal representatives requested a “professional insight” as to how a negative impact on X might affect the children, Dr Mukhtar did not interview or assess A and B. Having said that, I do take account of any possible impact on the children as regards a deterioration in X’s mental health.

45. It is of some concern that the home interview conducted with Dr Mukhtar was “facilitated” by the appellant. The appellant provided the author with additional information. Given the history of domestic violence, I query whether the appellant’s presence was appropriate.

46. Ultimately, I accept Dr Mukhtar’s diagnosis of mixed anxiety and depressive disorder. The report does not suggest that the conditions are severe. The report does not state an opinion that the appellant’s deportation would have a particularly significant impact on X’s mental health. I acknowledge that her mental and physical health is described as “frail”, but if that term is intended to connote a significant disability, it is not supported by the body of the report or the recommended future treatment. The final paragraph of the report simply states that, “Monitoring her symptoms and considering therapy or medication if needed would also be beneficial.”

47. I accept that X takes medication for these conditions, although the evidence does not suggest that this is anything more than a first-tier medication regime. There is no evidence to indicate that the current medication does not have the desired effect.

48. In terms of physical conditions, the only problems identified in documentary evidence is what is commonly described as “frozen shoulder” and swelling in her left wrist. It appears as though both have been either treated with anti-inflammatory medication and/or arise only intermittently (the evidence cited in Dr Mukhtar’s report is dated July 2024). I accept that X may suffer from migraines. X works as a cleaner and she has not suggested an inability to continue this work as result of any physical conditions. On balance, I find that the conditions are not such as to prevent her from working.

49. Thirdly, I agree with Mr Nappey’s submission that X has been able to properly care for the children in the past whilst the appellant has either not been able to assist whatsoever (i.e. whilst he was in prison 2019-2020) and when he was otherwise not living at the family home in 2018 and 2023-2024. Having considered the evidence as a whole, there is nothing to suggest that at any stage X has neglected the children or otherwise been unable to provide appropriate loving and practical support for them. Dr Mukhtar described X as having demonstrated “resilience” in prioritising the children’s safety, although she was in a vulnerable position. The CFA contains no concerns about X’s parenting abilities.

50. I accept that the appellant had provided some forms of practical assistance for X even when he did not live at the family home (and prior to and after his release from prison). I accept that he would, for example, take the children out for food or to the cinema. Having said that, I do not accept (if it is being suggested) that his contribution at those times was necessary in order for X to reasonably cope with running the family home and looking after the two children. The evidence simply does not support such a contention.

51. I accept that since his return to the family home in July 2024, the appellant has helped with practical chores around the house. This has no doubt been of benefit to X as it would relieve a degree of pressure and physical strain on her. Again, the evidence as a whole does not indicate that this is essential or anything more than desirable.

52. The evidence shows that X was able to work and adequately look after the children whilst the appellant was in prison between 2019 and 2020.

53. The evidence relating to the children does not demonstrate that they were significantly affected in terms of education and/or overall well-being as result of any deterioration in X’s mental and/or physical health when the appellant was absent from the family home.

54. Fourthly, it is more likely than not that X would have access to emotional and/or practical assistance from others if the appellant was deported to Pakistan. She has a brother and his family living in London. It may be that the brother has not assisted thus far, but X has not stated that they are estranged. If X were confronted with the difficult scenario of the appellant being deported, it is more likely than not that her brother would be of at least some assistance. Beyond that, X confirmed that she has a network of friends. Although she may not have asked for help in the past, a long-term change in her circumstances would, I find, provide a reasonable basis for her to seek help, whether financial and/or emotional from that quarter. Further, the local authority has clearly had a good deal of involvement with the family unit. They will be well-aware of the history and, I find, would be well-placed to provide support if the appellant was deported. Whilst the case file with the local authority is currently closed, there is no reason why it could not be reopened in light of a change of circumstances, particularly following what is said in the CFA and the children’s historical child in need and child protection plans in recent years.

55. I have no doubt that the children’s school would do what it could to provide support to X if the appellant’s deportation came to pass.

56. Overall, and on a fact-specific assessment, the appellant’s deportation would not be unduly harsh on X.

Exception 2: would the appellant’s deportation be unduly harsh on A and B?
57. In undertaking this aspect of my overall assessment, I bear in mind the need for a child-focused and fact-specific approach, as set out in HA (Iraq) (both in the Court of Appeal and endorsed by the Supreme Court).

58. For the following reasons, I conclude that it would not be unduly harsh on A and B if the appellant was deported to Pakistan whilst they remained in the United Kingdom.

59. First, I factor in everything I have said in relation to X, above.

60. Secondly, I accept this that they have a good child/parent bond with the appellant, despite his previous abuse of their mother. This is supported by the evidence of X, the appellant, and the CFA. The appellant has been part of their lives throughout, although there have of course been extended periods where he was not living in the family home. I accept that the appellant plays an important part in their lives in the general sense of providing emotional and practical support and being concerned in their well-being and progress.

61. It is in the children’s best interests to have both of their parents in their day-to-day lives. That is a primary consideration within the overall unduly harsh assessment.

62. Thirdly, in so far as it relates to the children, I place no weight on the independent social worker’s report, for the same reasons set out previously.

63. Fourthly, I find that neither of the children have any mental health, behavioural, or physical health conditions. As stated previously, I place no material weight on Dr Mukhtar’s purported view as to any adverse emotional/psychological effects relating to the appellant’s deportation. I find that the evidence does not indicate that B’s difficulties at school are connected to the appellant’s circumstances.

64. It is highly likely that the children will be aware, to a greater or lesser extent, of how the appellant has behaved to their mother over the course of time. I note that the Sentencing Remarks suggest that the appellant assaulted X whilst the children were in the home, albeit not in the same room. But, having regard to the evidence as a whole (including the absence of any or any reliable expert evidence), I do not accept Mr Aslam’s contention that the children have suffered “a great deal of trauma” if by that he was urging me to conclude that they have undiagnosed mental health conditions and/or that a separation from the appellant would significantly exacerbate any such conditions. With respect, that submission comes close to a purported expert opinion, which he was not in a position to provide. In truth, he was probably simply seeking to convey in his own non-expert terms a description of the children’s experiences.

65. Fifthly, and following from the above, I accept that being separated from the appellant at this stage would cause real upset to the children. They have not had a stable home environment for much of their lives. The appellant has now lived again in the family home for approximately 18 months and they will have become more accustomed to him being a daily presence in their lives.

66. Having said that, the appellant has not been a constant presence in their daily lives. Aside from being in prison in 2019-2020, during other times he was only seeing them directly for short, if fairly frequent, periods.

67. On the evidence as a whole, I find that there is no particular dependency of the children on the appellant extending beyond what one might describe as normal dedicated parenting. In respect of X, I have found that the appellant’s involvement with the family is not essential to her ability to adequately care for the children. I find the same applies to the children themselves.

68. Sixthly, I have found that X would be able to access forms of external support. In respect of A and B, I find that the local authority would be well-placed and able to provide support to the children, given its involvement with them over the last few years. In all the circumstances, it is inconceivable that the children would be refused any form of support if the appellant was deported.

69. Seventhly, I accept that the appellant’s deportation would be difficult for the two girls, bearing in mind their respective ages and past experiences. Separation may even be described as harsh on them. However, on the evidence before me and my findings thereon, I conclude that it would not be unduly so. Evaluating all relevant considerations cumulatively, the circumstances do not meet the reach the demanding standard imposed by the terms “unduly” and “harsh”, notwithstanding the fact that the best interests of the two children: HA (Iraq), at [41]-[42] of the Supreme Court’s judgment. My conclusion is based on an assessment of the two particular children in this case, and not on any notional comparator.

Are there very compelling circumstances?
70. The test under section 117C(6) is plainly very demanding, as confirmed in a number of binding authorities. It is important to remember that the test can only be met by very compelling circumstances “over and above” those described in the Exceptions. The test can be met by what has been described as an “unduly unduly harsh effect”, or by some other factor(s) not addressed in the Exceptions, but which must clearly be very strong.

71. In the present case and as I have already mentioned earlier, Mr Aslam has acknowledged the appellant’s difficulty in being able to demonstrate very compelling circumstances if he could not satisfy Exception 2. I entirely agree with that position. In my judgment, the appellant is far from being able to show a sufficiently strong case to succeed under section 117C(6). I say this for the following reasons.

72. First, the appellant cannot satisfy either of the two Exceptions.

73. Secondly, it follows from the above that he cannot show that deportation would be “unduly unduly harsh” on either X or the children.

74. Thirdly, there is on a general level a strong public interest in deportation: section 117C(1).

75. Fourthly, the public interest in this particular case is enhanced by the appellant’s offending and surrounding circumstances. Domestic abuse, particularly that involving violence, is abhorrent. The appellant assaulted X on two occasions in May 2017, for which he received 3 months’ imprisonment, suspended for 12 months in respect of each count. In October 2019, he assaulted her again, this time causing actual bodily harm. It is notable that he pleaded not guilty, a fact which in my view sits consistently with subsequent denials of full responsibility for his actions.

76. The appellant hit X whilst the children were in the house. He punched her whilst pulling her hair and then pushed her to the floor. He forced her to apologise to him. He then proceeded to beat her with a wooden stick and kicked her whilst she was prostrate. The appellant perpetuated the lie before me that X bruised easily, an assertion which had been rejected in the Sentencing Remarks. X was considered to have been a vulnerable individual at the time. There were no mitigating factors.

77. Viewed in the context of domestic abuse, I regard the particular circumstances of the offending as very serious.

78. The appellant denied responsibility even after his conviction and in the OASys report was regarded as a high risk to other known adults, specifically X.

79. Fifthly, I take into account other aspects of the appellant’s conduct. The domestic abuse goes all the way back to 2017. He was the subject of a restraining order in 2018. That order would not have been made without very good reason, namely the appellant’s abusive behaviour. The appellant continued to use alcohol and/or cannabis after his release from prison and I find that he deliberately concealed this from others. I have addressed the April 2023 incident previously and take that into account at this stage.

80. A final and significant aspect of the appellant’s conduct was his decision to return to the family home in July 2024 without first informing the local authority. That was on any reasonable view a wholly irresponsible act, given the family’s circumstances. The CFA quite understandably expresses the real concerns about what had taken place without the local authority’s knowledge, albeit that the report ultimately concluded that there were no current safeguarding concerns.

81. Sixthly, I accept that the appellant has not offended (at least has not been charged and convicted) since late 2019. That is in truth nothing more than negative rehabilitation and carries no material weight.

82. Although the appellant undertook an anger management program whilst in prison, it seemingly had limited effect: the appellant demonstrated uncontrolled anger in April 2023, if not on other occasions as well. There is no evidence of any drugs or alcohol programs having been completed. There is no evidence of any positive contribution to wider society.

83. Whilst not double-counting this consideration, what I have said about the appellant’s decision to move back into the family home in July 2024 unannounced is hardly indicative of positive rehabilitation. Rather, it is indicative of a lack of full responsibility and a disregard for safeguarding procedures in order to further his desire to remain in the United Kingdom and have greater contact with the children.

84. Having regard to X’s oral evidence, I do accept that the appellant is seeking to take steps to address some of his former behaviours. This has been manifested in what I accept is his cessation of the use of alcohol and now cannabis and what might be described as a belated recognition of his past conduct. Having said that, I am bound to say that I find at least part of his motivation comes from the realisation that his position in this country is decidedly precarious at this stage.

85. Overall, any rehabilitation is limited and in certain respects tarnished by the appellant’s conduct.

86. Seventhly, the appellant has resided in the United Kingdom without leave since March 2016. The majority of his time in this country has therefore been on an unlawful basis. Prior to that, he was only here on a precarious basis. The respondent is entitled to rely on the importance of maintaining effective immigration control, pursuant to section 117B(1).

87. Eighthly, all aspects of the appellant’s private life have previously been considered under Exception 1 and I need say nothing more about this.

88. Ninthly, the appellant does not suffer from any material health conditions.

Summary
89. The appellant cannot succeed on any basis. The “stay” scenario in respect of Exception 2 would not lead to unduly harsh consequences for either X or the children. There are no very compelling circumstances in this case.

90. For the sake of completeness and the avoidance of any doubt, I confirm that even if I had admitted the supplementary bundle, the evidence contained therein would not have made any material difference to my findings and conclusions in this case.

Anonymity
91. The appellant and his family members have been granted anonymity throughout the proceedings. There is of course a strong public interest in open justice, and this is particularly true in respect of deportation cases. However, the present case concerns a history of domestic violence and two children who have previously been on the Children at Risk register. In all the circumstances, it is appropriate to maintain the comprehensive anonymity direction stated at the outset of this re-making decision.

Notice of Decision
The making of the decision of the First-tier Tribunal did involve the making of an error on a point of law and that decision has been set aside.

The decision in this appeal is re-made and the appeal is dismissed on human rights grounds.

H Norton-Taylor
Judge of the Upper Tribunal
Immigration and Asylum Chamber
Dated: 8 January 2026
ANNEX: THE ERROR OF LAW DECISION

IN THE UPPER TRIBUNAL
IMMIGRATION AND ASYLUM CHAMBER
Case No: UI-2021-001181

First-tier Tribunal No: HU/07266/2022

THE IMMIGRATION ACTS

Decision & Reasons Issued:
…………………………………

Before
UPPER TRIBUNAL JUDGE NORTON-TAYLOR

Between
SECRETARY OF STATE FOR THE HOME DEPARTMENT
Appellant
and

MSA
(ANONYMITY DIRECTION MADE)
Respondent

Representation:
For the Secretary of State: Ms A Ahmed, Senior Presenting Officer
For Mr MSA: Mr Z Nazim, Counsel, instructed by M-R Solicitors LLP

Heard at Field House on 20 October 2023

Order Regarding Anonymity
Pursuant to rule 14 of the Tribunal Procedure (Upper Tribunal) Rules 2008, the appellant and members of his family are granted anonymity.
No-one shall publish or reveal any information, including the name or address of the appellant and members of his family, likely to lead members of the public to identify the appellant and members of his family. Failure to comply with this order could amount to a contempt of court.

DECISION AND REASONS

Introduction
1. The Secretary of State brings this appeal to the Upper Tribunal. For the sake of continuity, I shall refer to the parties as they were before the First-tier Tribunal: therefore, the Secretary of State is once again “the respondent” and Mr MSA is “the appellant”.

2. The respondent challenges the decision of First-tier Tribunal Judge G Clarke (“the judge”), promulgated on 25 November 2021. By that decision, the judge allowed the appellant’s appeal against the respondent’s refusal of his human rights claim.

3. The appellant, a citizen of Pakistan, came to the United Kingdom in January 2010. He last held leave to remain on 11 March 2016, which had been granted to him on 2 October 2013 in respect of his relationship with his British wife, X, and their British daughters, A and B, who were born in February 2013 and June 2014 respectively. X is of Pakistani origin. Prior to her naturalisation, she was recognised as a refugee by the respondent.

4. The appellant has a long history of domestic violence against X. He has been convicted on two occasions of common assault against her. On 19 December 2019, he was sentenced by the Crown Court to 13 months’ imprisonment for assault occasioning actual bodily harm against her, following his conviction in the magistrates’ court. That conviction triggered the automatic deportation provisions in the UK Borders Act 2007.

5. The appellant made a human rights claim in response to the deportation action. He relied on his relationship with his daughters and his wife, and the length of his residence here.

Procedural history in the Upper Tribunal
6. This case is once again at the error of law stage. It is taken a long time to get here in large part because of a specific procedural issue. The case originally came before the Upper Tribunal on 26 May 2022. Upper Tribunal Judge S Smith concluded that the judge had erred in law and that decision was set aside. A resumed hearing followed and the appellant’s appeal was dismissed. The appellant had not attended either of these two hearings.

7. It transpired that notice of those two hearings had not been effectively sent to the appellant. On 20 September 2023, Judge Smith set aside his combined error of law and re-making the decision.

The judge’s decision
8. The judge entirely rejected the appellant’s protection claim and there has been no cross-appeal against that element of his decision. I need say nothing more about it.

9. The judge found that the appellant could not bring himself within the private life exception contained in section 117C(4) of the Nationality, Immigration and Asylum Act 2002, as amended.

10. The judge found that the appellant was not in a subsisting relationship with X and so that element of the unduly harsh test could not apply.

11. The judge accepted that the appellant had a genuine and subsisting parental relationship with A and B. It had been common ground that it would be unduly harsh for the two daughters to go and live in Pakistan. The core issue was therefore whether it would be unduly harsh for the two daughters to be separated from the appellant (what is often described as the “stay scenario”). There was evidence before the judge which raised very clear concerns about the appellant’s past behaviour and future risk. However, a report by an independent social worker, Dr R Farooqi, dated 1 April 2021, was favourable to the appellant’s case. Dr Farooqi concluded that it would not be in the welfare and best interests of A and B if the appellant were to be “forced back to Pakistan at this stage.” That was based on the desire of both A and B for their father to be present in their lives. The report noted that a range of steps would be required before it would be safe or appropriate for the appellant to be permitted to return to live with them: see [52] of the report. Such steps included a psychological risk assessment in relation to the appellant and a joint parenting assessment. “If the further assessments are positive”, said Dr Farooqi, “it will mean [A] and [B] are given a chance to have a relationship with their father in the UK.” The judge quoted [53] of Dr Farooqi’s report at length and I set that paragraph out here:
“… [X] is very clear she would like [the appellant] to help parent their daughters and she would like him to move back to live with her. It appears there may be a deterioration in her mental health if he is forced back to Pakistan. On this basis the removal of [the appellant] is is [sic] likely to have an exceptionally detrimental impact on this family due to the likelihood of it leading to the risk of a further deterioration in the mental health of [X] and [the appellant]. This will be affected both [sic] [A and B] as they will witness a deterioration in their mother’s mental health. This will mean they will become Children in Need under section 17 of the Children’s Act 1989 [sic].”
(Emphasis in the original)

12. The core of the judge’s conclusions on the unduly harsh test are contained in [120]-[122] of his decision and I set them out here in so far as relevant:
“120. However, if their father is deported they will experience more trauma and the loss of any meaningful relationship with him for the rest of their childhood. Citizens and they cannot be expected to leave the United Kingdom. Notwithstanding the appalling history of domestic violence perpetrated by the Appellant against his wife, there are 2 factors that lead me the Appellant’s removal will have an unduly harsh effect on the Appellant’s children. Firstly, I place great weight on Dr Farooqi’s professional assessment. Dr Farooqi is a qualified social worker, and accredited social work practice educator and has vast experience working with children and families for local authorities. She has been a Guardian ad litem in various parts of the United Kingdom and worked part-time as a Family Court Welfare Officer. Dr Farooqi has worked for CAFCASS and acts as an expert witness. In summary, Dr Farooqi is highly qualified and experienced in the area of child protection. I therefore rely on her opinion that the Appellant’s deportation will deprive the children of their relationship with their father, and will have “an exceptionally detrimental impact on this family” as [X’s] mental health is likely to deteriorate.

121. Secondly, Social Services have obviously approved the Appellant’s return to the family home. This presupposes that there is a relationship between the Appellant and his children…

122… I rely on the fact that there is an expert report that states that the Appellant’s deportation will have “an exceptionally detrimental impact on this family.””

13. These conclusions led the judge to allow the appellant’s appeal on Article 8 grounds, whilst dismissing it on asylum and humanitarian protection grounds.

The grounds of appeal
14. As is somewhat to familiar in the deportation context, the respondent grounds of appeal are not particularly clearly drafted. It is not for the Upper Tribunal to re-draft grounds of appeal or to make a party’s case out for them.

15. In the present case I am satisfied that the central thrust of the challenge is the claimed inadequacy of the reasons provided for the conclusions reached by the judge.

16. There has been no rule 24 response from the appellant.

The hearing
17. I helpful submissions from Ms Ahmed and Mr Nazim, all of which are a matter of record. I will deal with relevant aspects of these when setting out my conclusions, below.

Conclusions
18. I emphasise the need to read any judge’s decision sensibly and holistically. The Upper Tribunal should not likely interfere with a decision of the First-tier Tribunal, particularly where evidence has been assessed from a variety of sources and evaluative judgments undertaken.

19. I have taken account of VV (grounds of appeal) Lithuania [2016] UKUT 00053 (IAC), to which Mr Nazim referred me. As already mentioned, I have proceeded with caution. I am also satisfied that the respondent’s grounds of appeal encompass the matters which I address below.

20. Notwithstanding the need for appropriate restraint, I am satisfied that the judge did materially err in law when reaching his conclusion that it would be unduly harsh on A and B if the appellant were deported to Pakistan.

21. Reading the operative part of the judge’s reasoning sensibly and holistically (as I must), it is inescapable that [120] is based in large part, or at the very least to a material extent, on Dr Farooqi’s view that X’s mental health could deteriorate and that this would in turn adversely affect A and B. The phrase adopted by the judge at [120] and [122] – “exceptionally detrimental impact” – is lifted directly from [53] of the report and was stated by the judge to be one of two factors rendering separation unduly harsh. With respect to Mr Nazim, it cannot properly be said that the judge’s analysis and reasoning could stand absent any reliance on Dr Farooqi’s evidence. Therefore, if the judge erred in respect of his reasoning, it was a material error.

22. The judge was entitled to consider Dr Farooqi to be an expert in her field and was, in principle, entitled to place significant weight on the report. Mr Nazim was correct to point out that Dr Farooqi had had training and experience in the field of mental health. There are, however, difficulties with Dr Farooqi’s opinion that there could/would be an “exceptionally detrimental impact” on A and B because of X’s mental health.

23. Firstly, Dr Farooqi was not qualified to undertake a psychiatric or psychological assessment (in fairness to her, she did not expressly purport to do so). All she was able to do was re-state X’s view that she (X) might suffer a decline in mental health if the appellant was to be deported. With respect to Dr Farooqi, her conclusion at [53] that deportation would have such an adverse impact on X’s mental health so as to justify the consequent conclusion regarding A and B appears to stray outside of her field of expertise and/or was simply unsupported by the evidence she had before her.

24. Secondly, Dr Farooqi couched her opinion on X’s mental health in highly tentative terms – “it appears there may be a deterioration…” Even leaving aside the problems with her expressing an opinion on mental health at all, that link in the chain was speculative.

25. Thirdly, there was no medical evidence on X before either Dr Farooqi or the judge. There was no medical evidence to suggest that X had either suffered a decline in her mental health whilst the appellant was in prison, or that such a decline would be likely if he was deported.

26. In light of the above and in the context of the state of the evidence before him, the judge failed to adequately explain how and why he was, in the words of the respondent’s grounds, elevating Dr Farooqi’s opinion on X to the level at which it substantially (if not decisively) rendered deportation unduly harsh on A and B. In particular, he failed to explain: (a) why such significant weight was placed on Dr Farooqi’s view of X’s mental health in light of her expertise and in the absence of any medical evidence; (b) why Dr Farooqi’s tentative view of a possible deterioration in X’s health was seemingly elevated to a strong likelihood at [120].

27. It must be recalled that the “exceptionally detrimental impact” on A and B had been directly attributed by Dr Farooqi to X’s mental health and therefore it was that X’s circumstances which required adequate reasoning before moving on to any impact on the children. In the context of this case, the judge’s reasons were not legally sufficient.

28. On this basis, I set aside the judge’s decision.

Disposal
29. It is appropriate to retain this appeal in the Upper Tribunal and hold a resumed hearing in due course.

30. Certain of the judge’s findings have not been challenged and are preserved:

(a) The appellant is not at risk on return to Pakistan;

(b) The appellant cannot satisfy Exception 1 under section 117C(4) NIAA 2002;

(c) The appellant does not have a genuine and subsisting relationship with X;

(d) The appellant does have a genuine and subsisting relationship with A and B;

(e) It would be unduly harsh on A and B to go to Pakistan to live with the appellant.

31. I raise a concern here as to the state of the evidence which was before the judge. I am not presently satisfied that there was clear evidence from, for example, Children’s Services in the relevant local authority, that approval had in fact been given for the appellant to return to the family home. This will need to be addressed. Following a discussion with Mr Nazim at the hearing, it was agreed that a direction to adduce relevant evidence should be targeted at the appellant rather than the local authority itself.

32. The core issues to be determined now are (a) whether it would be unduly harsh on A and B to be separated from the appellant; or (b) whether there are very compelling circumstances.

Anonymity
33. Open justice is an important aspect of the public interest. However, this case involves an individual who has been the subject of serious domestic violence and two children who are aware of this and are (or at least have been) on the Child Protection Register. Anonymity is appropriate at this stage.

Notice of Decision
The making of the decision of the First-tier Tribunal did involve the making of an error on a point of law.

I exercise my discretion under section 12(2)(a) of the Tribunals, Courts and Enforcement Act 2007 and set aside the decision of the First-tier Tribunal.

The appeal is retained in the Upper Tribunal for a resumed hearing in due course, following which the decision will be re-made.

Directions to the parties

1. No later than 35 days after this error of law decision is sent out to the parties, the appellant shall file and serve a consolidated bundle of all evidence relied on. The bundle shall be in electronic format, bookmarked, and compressed so as to avoid splitting it into sections. The bundle must be uploaded onto CE-File by the appellant’s representatives and served on the respondent separately;

2. The appellant shall include in the consolidated bundle evidence from the relevant Children’s Services/the relevant local authority pertaining to:

(a) A and B’s inclusion on the Child Protection Register;

(b) Approval for the appellant to reside in the same household as X and A and B;

(c) Any risk assessments on the appellant conducted since 1 January 2020

3. No later than 21 days following receipt of the appellant’s consolidated bundle, the respondent may file and serve (in the same format and in the same manner as in Direction 1, above) any further evidence relied on;

4. The parties may apply to vary these directions, with any such application copied to the other side.

H Norton-Taylor
Judge of the Upper Tribunal
Immigration and Asylum Chamber
Dated: 30 October 2023