Tribunal decisions

The decision

IN THE UPPER TRIBUNAL
IMMIGRATION AND ASYLUM CHAMBER

Case No: UI-2022-005424

First-tier Tribunal No: HU/07039/2020

THE IMMIGRATION ACTS

Decision & Reasons Issued:

6th May 2025

Before

UPPER TRIBUNAL JUDGE O’BRIEN
and
DEPUTY UPPER TRIBUNAL JUDGE FARRELLY

Between

MARIGLEN PLAKU
(NO ANONYMITY DIRECTION MADE)
Appellant
and

Secretary of State for the Home Department
Respondent
Representation
For the Appellant: Mr Scott Martin of Jain, Neil and Ruddy, Solicitors.
For the Respondent: Mr Andrew Mullen, Senior Home Office Presenting Officer

Heard at Edinburgh Tribunal Centre on 11 February 2025
Decision and Reasons
Introduction
1. The appellant is a national of Albania, born on the 3rd of April 1993. He is subject to a deportation order following his convictions for drugs offences at Dumfries Sheriff Court on the 18th of February 2020. He was sentenced on the 22nd of April 2020 to 12 and 16 months imprisonment respectively on two counts of supplying controlled drugs. He was sentence served on the 10th of July 2020. He then went into immigration detention until 25th September 2020.

2. He is in a relationship with a Hungarian national, Dora Fodor. They met in April 2015. They currently live together in Glasgow. She is settled in the United Kingdom under the EU settlement scheme. They have a child, L, born in January 2017. He is a British citizen. He is autistic and largely non-verbal. He attends a school in Glasgow for children with significant learning needs. The appellant lived with mother and child from the child's birth until the summer of 2019 when they separated. He continued to visit his son before conviction and contact continued when he was incarcerated.

3. The appellant says he is the father of another British child, born in October 2015 with Catherine Daly. The respondent disputes this, pointing out that he is not named on the birth certificate, he appeared to have been in custody in Albania at the time of conception and the child never visited him when he was detained. While she was pregnant they became estranged and then reconciled in April 2019. After his release on immigration bail on the 25th of September 2020 he resumed contact with her but the relationship then ended and he returned to Dora Fodor. He says he continues to see the child.

4. On the 12th of June 2020, the respondent made a deportation order in accordance with section 32(5) of the UK Borders Act 2007. The appellant unsuccessfully sought to counter this by bringing a claim on the 19th of June 2020 based upon an Article 8 right to respect for family life. He appealed the decision of the 18th of August 2020 refusing that claim .His appeal before First tier Tribunal Judge Komorowski was dismissed.

5. The matter came before Upper Tribunal Judge Rintoul on the 10th of April 2024. Upper Tribunal Judge Rintoul found a material error of law in that Judge Komorowski mistakenly concluded the second conviction was in respect of offences committed after the appellant's release. The decision was to be remade afresh in the Upper Tribunal. The appellant was given the opportunity to introduce updated evidence.

6. A transfer order was made on the 29th of November 2024 by Principle Resident Upper Tribunal Judge Blum, further to paragraph 9 of the Practice Statement. The Order was for the appeal to be concluded by a differently constituted tribunal to avoid undue delay.

THE BACKGROUND

7. The appeal papers contain details of the appellant’s convictions in Albania which have not been challenged. On the 2nd of March 2010, at which stage he would have been 16 years of age, he was sentence to 8 months’ imprisonment for theft. On the 21st of June 2010 he was sentence to a further six months for theft. Then, on the 4th of June 2012, he received one year’s imprisonment for theft. On the 17th of October 2014, he was sentenced to 18 months’ imprisonment, again for theft. In the social work pre-sentencing report of the 20th of April 2020, he accepted he had been convicted of theft in Albania but said this was in 2013 in respect of theft of a length of cable for which he received 18 months’ imprisonment suspended. This clearly is not the full account.

8. The appellant was detected as an illegal entrant on the 21st of December 2017. His account is that he arrived in the back of a lorry 3 1/2 years earlier, at which stage he would have been 20 years of age. He referred to living with Dora and having a son. He was granted bail and then absconded. He was encountered again on the 30th of June 2018 and again granted bail. On the 7th of September 2018 he applied for an EEA residence card on the strength of his relationship with Dora. This was rejected on the 16th of October 2018. He absconded once again. He was arrested on the 16th of July 2019.

9. The pre-sentencing social work report of the 20th of April 2020 recorded the history above and states that drug use had become an issue with him since 2016 and that he was using cocaine on a daily basis and had been hospitalised because of drug psychosis. He was assessed as presenting a medium risk of further offending, albeit not an imminent risk of perpetrating serious harm.

THE HEARING

10. The appellant adopted his statement. He accepted he had been in prison in Albania on several occasions. He then entered the United Kingdom illegally. He never claimed asylum. He said the journey was financed by his brother at a cost of around £4,000 and he came here because he had relatives here and hoped to obtain employment. He said he has been with Dora since 2015. He said that his son L was still not talking. He said he was not allowed to work lawfully. He said that he sees Ms Daly’s son two days a week.

11. We then heard from his partner, Dora ,who adopted her statement. She accepted when the relationship began she was aware the appellant had no right to be here. She said her son's behaviour is unpredictable and that he is better with the appellant. When he was incarcerated she was unable to leave the house and her sister, who is here, could give limited assistance because she was working.

12. In submissions, Mr Mullen argued that deportation was justified and was not unduly harsh on the appellant, his partner, or their child, as the term was explained in HA (Iraq) [2022] UKSC 22. The appellant entered the United Kingdom illegally and there was no protection claim. The family life he established here was always on a precarious basis. The situation was exacerbated by his subsequent offending. He said it is always difficult separating a father from his child. However, he submitted deportation remained justified and there was nothing to show it was unduly harsh. It was as a consequence of the appellant’s own act. Due regard was to be had to the public interest in the deportation of foreign criminals. Deportation was proportionate in this particular case, balancing the strength of the public interest against the impact on private and family life.

13. In response, Mr Martin acknowledged that in order to succeed undue harshness must be shown. He said the focus in the appeal should be upon the effect of deportation on the appellant’s child, L, who was autistic with significant needs. He adopted the skeleton argument and emphasised that at the error of law hearing Upper Tribunal Judge Rintoul said there was little factual dispute. The appellant had now spent over 4 years with L and his mother since release from prison, playing a crucial role in L’s life, and had demonstrated rehabilitation. The appellant had helped with L’s needs. His condition required stability and the appellant’s deportation would be unduly harsh on him.

14. In reply, Mr Mullen referred again to the appellant’s offending here as well as the historical offences committed in Albania. He said it was not being argued that L should leave. The splitting up of the family was the issue. The previous tribunal thought it likely he would re-offend.

CONSIDERATION

15. The skeleton argument for the appellant identifies the following issues:
(i) Does the Appellant have a genuine and subsisting relationship with his son, L?
(ii) Would it be unduly harsh for L to live in the country to which the Appellant is to be deported?
(iii) Would it be unduly harsh for L to remain in the UK without the Appellant?

16. It was accepted on the appellant’s behalf that he has been sentenced to a period of imprisonment exceeding 12 months. He was sentenced on the 22nd of April 2020 to a period of 16 months in prison, following his conviction on guilty pleas at Dumfries Sheriff Court on the 18th of November 2029. The Appellant served half of his sentence, his imprisonment having started on the 13th of November 2019 and qualified for early release on the 10th of July 2020. He remained in immigration detention until he obtained bail on the 25th of September 2020.

17. We are required to follow the statutory regime governing the deportation of foreign criminals under section 117C of the Nationality, Immigration and Asylum Act 2002. It refers to additional considerations in relation to foreign criminals beyond those in s117B applicable to all Article 8 appeals. Again, it emphasises that deportation is in the public interest and the more serious the offence the greater the public interest in deportation. The public interest requires deportation unless the prescribed exceptions apply or there exist very compelling circumstances over and above those exceptions which render deportation disproportionate.

18. We accept the skeleton argument correctly identifies the issues. We accept that the appellant has a genuine and subsisting relationship with L who is a British citizen. We find he has not established this is the case with the other child. There is no evidence from the child’s mother to corroborate the appellant’s claimed involvement in his life. Even if we had, it was not suggested that unduly harsh consequences would follow for that child from the appellant’s deportation.

19. It is accepted by Mr Mullan that it would be unduly harsh to expect the child L to adapt to life in Albania, a country with which they have no connection. There is nothing to suggest his child would receive the special care he requires. We would adopt the same approach in relation to Dora.

20. The determinative issue is therefore whether it would be unduly harsh for L to stay in the United Kingdom without the appellant.

21. In considering the notion of undue harshness we have had regard to the guidance given in HA (Iraq) [2022] UKSC 22 .This requires consideration of the child enduring the appellant’s absence. The threshold is beyond it being inconvenient; ‘harsh’ denotes something severe or bleak; ‘unduly harsh’ raises an already elevated threshold even higher (HA (Iraq)) at paragraphs 41-42, re-endorsing as authoritative the self-direction in MK (Sierra Leone) [2015] UKUT 223 (IAC)).

22. Whilst harm to the public of any possible future offending is relevant to whether there are very compelling circumstances rendering deportation disproportionate, it is not relevant to an assessment of the harshness of the consequences. However, the likelihood of the parent remaining free and having a caring role is relevant. The appellant has expressed regret and appears to appreciate the likely consequences of further reoffending. He has also remained at liberty for around 4 years without reoffending. However, he has not always displayed strength of character when difficulties arise. Moreover, he has not produced any independent evidence that his risk of reoffending has reduced. Therefore, the likelihood of the appellant remaining free and having a caring role remains doubtful.

23. We accept that Dora and L rely on the appellant’s support and that she believes he has a positive influence upon the household. However, and despite having been given the opportunity to do so by Judge Rintoul, the appellant has provided little by way of updated documentary evidence on L, and no reliable, independent evidence on the likely impact on L (or Dora) of his absence. The evidence does show that Dora was able to take L with her to Romania for 5 weeks when dealing with the death of her mother. She describes little of the problems encountered with L save that he missed the appellant ‘enormously’ and enjoyed her video calls with the appellant. The witnesses’ evidence was unclear as to whether L remains non-verbal (and the most recent school correspondence does not expressly say that he is). However, we are told that L is doing well in school. Moreover, we have no professional opinion as to whether L’s continued welfare is contingent on the appellant’s continued permanent presence and the extent to which it would be compromised if the appellant were deported.

24. We are prepared to accept that the appellant’s deportation would involve significant difficulties resulting in harsh consequences for L and, consequentially, Dora. However, we have simply inadequate evidence to be persuaded that the consequences reach the further elevated threshold of undue harshness. We reach that conclusion even if the appellant could be expected to remain out of prison. However, it is even more the case given our doubts as to his ability to do so.

25. Whilst not strictly argued before us on the alternative basis of very compelling circumstances, we do nevertheless consider whether deportation is in any event proportional. We are conscious of the nature of the offending in that it involved drugs. The appellant was convicted of two such counts for which he was sentenced to 12 months’ and 16 months’ imprisonment respectively. He was found to have been in possession of and having used cannabis on one occasion while in prison. The appellant’s pre-sentence report assessed him as posing a medium risk of re-offending.

26. We find that there is a very strong public interest in the appellant’s deportation. We weigh against that the harsh consequences of deportation on Dora and L and some evidence indicating rehabilitation. Nevertheless, looking at all the facts, we do not see very compelling circumstances over and above the exceptions, and so find the decision is proportionate.

Decision

1. Pursuant to the decision of Upper Tribunal Judge Rintoul (annexed) the decision of the First-tier Tribunal involved the making of an error of law such that it is set aside.
2. We remake that decision by dismissing the appeal.

F J Farrelly
Deputy Upper Tribunal Judge Farrelly

The Upper Tribunal
Immigration and Asylum Chamber

IN THE UPPER TRIBUNAL
IMMIGRATION AND ASYLUM CHAMBER
Case No: UI-2022-005424

First-tier Tribunal No: HU/07039/2020

THE IMMIGRATION ACTS

Decision & Reasons Issued:
03/05/2024
…………………………………

Before

UPPER TRIBUNAL JUDGE RINTOUL

Between

MARIGLEN PLAKU
(NO ANONYMITY ORDER MADE)
Appellant
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: Mr Martin, instructed by Jain, Neil & Ruddy Solicitors
For the Respondent: Mr A Mullen, Senior Home Office Presenting Officer

Heard at Edinburgh on 10 April 2024

DECISION AND REASONS
1. The appellant appeals with permission against a decision of First-tier Tribunal Judge Komorowski dismissing his appeal for the reasons set out in a decision promulgated on 7 October 2022. In this case the decision was to deport the appellant on account of his conviction and imprisonment for sixteen months for being concerned in the supply of drugs.
2. In this case the judge heard evidence from the appellant who in his oral evidence said that after he had been released from his sentence he had been convicted again subsequent to being rearrested on a warrant and was then sentenced to a further term of imprisonment. The judge in this case found that it would be unduly harsh to expect the child given his particular needs to be deported to Albania. The judge also at paragraph 17 held that it would be of benefit to the child for the father to be present. The judge did however conclude that the prospect of the father, that is the appellant, being present to support the child and contribute to his care was poor because of the fact that the appellant had been convicted of drugs offences shortly after his release from the earlier prison sentence. That was a major factor which the judge took into account in assessing that it would not on the facts of his case be unduly harsh to expect the child to live in the United Kingdom without the father, that is the appellant.
3. The appellant sought permission to appeal on a number of grounds. Ground 2, which is the pertinent one, is that the judge had made a mistake of fact and had assumed that the events giving rise to the second offence took place after the appellant had been released from prison. What it is said had in fact been the case was that the events which gave rise to the second conviction had taken place before the appellant had been imprisoned and in summary that as a result the judge’s findings as to the likelihood of reoffending and thus the support that the appellant would be able to provide were flawed. Permission was granted on that ground and on the other grounds and it is on that basis the appeal comes before me today.
4. Mr Martin relied on his grounds submitting that the judge had erred in fact.
5. Mr Mullen in response submitted that there was in reality no real error of fact made by the judge and that there was no clear evidence as to when the offence had taken place and thus the judge could not be faulted for the findings he made. He submitted further that in any event completing a sentence and not reoffending was not clear evidence of rehabilitation but accepted that if there was an error of law it ought to be remitted to the same judge.
6. Having considered the material before me carefully I am satisfied that the judge did approach the appeal on the basis that the second conviction had taken place in respect of events which had taken place after the appellant’s release. It is evident from what the judge wrote at paragraph 19 that he assumed that the second conviction was in respect of offending that had taken place after release hence the phrasing that he had engaged in this criminal conduct at a time when he had instituted an appeal against deportation following his convictions for previous incidences of the same conduct. I am satisfied that this error of law was material in that it coloured significantly the judge’s approach to the extent of which the appellant would be present to persist with his son and that this went to the core issue as to whether removal of the father would be unduly harsh to the son.
7. Accordingly for these reasons, I am satisfied that the decision is flawed and I set it aside. It is therefore unnecessary for me to consider the other grounds.
8. I am not of the view that this is a matter which should be remitted. There appears to be little if any factual disputes in this case and in my view it would be better re-made in the Upper Tribunal given the narrow nature of what is now in dispute although of course given the length of time that has elapsed since the first decision, nearly two years, it will be sensible to permit further evidence to be adduced be that oral or written with regard to the appellant and probably the child who is relatively young and has significant problems.

Notice of Decision
1. The decision of the First-tier Tribunal involved the making of an error of law and I set it aside.
2. The appeal will be remade in the Upper Tribunal on a date to be fixed.
3. Any further material that a party wishes to adduced must be served at least 10 working days before the hearing, accompanied by a statement complying with rule 15 (2A) of the Tribunals Procedure (Upper Tribunal) Rules 2008.

Signed Date 22 April 2024

Jeremy K H Rintoul
Upper Tribunal Judge Rintoul