Tribunal decisions

The decision

IN THE UPPER TRIBUNAL
IMMIGRATION AND ASYLUM CHAMBER
Case No: UI-2023-000381

First-tier Tribunal No: HU/52123/2024

THE IMMIGRATION ACTS

Decision & Reasons Issued:

18th June 2025

Before

UPPER TRIBUNAL JUDGE RIMINGTON
DEPUTY UPPER TRIBUNAL JUDGE WILLIAMS

Between

SANDRO MIGUEL GARDETE MARQUES DIAS
(NO ANONYMITY ORDER MADE)
Appellant
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: Mr K Pullinger of Counsel, instructed by Liberty & Co Solicitors
For the Respondent: Mr E Terrell, Senior Home Office Presenting Officer

Heard at Field House on 14 May 2025

DECISION AND REASONS
1. This is our remaking of the Appellant’s appeal against the decision of the Respondent to refuse the Appellant’s human rights claim dated on 15th March 2022.
Background
2. The Appellant is a national of Portugal who entered the United Kingdom in 2003, when he was three years old. On 28th December 2019, the Appellant was granted Indefinite Leave to Remain under Appendix EU.
3. On 1st September 2021, the Appellant was convicted at Central London Magistrates Court of possessing a controlled drug, i.e. Cannabis, and he received a £100 fine. On 20th September 2021, the Appellant was convicted at Southwark Crown Court of one count of robbery and one count of threatening another with an article with a blade or point. On 11th November 2021, he was sentenced to 30 months’ imprisonment and 15 months’ imprisonment to run consecutively.
4. On 15th March 2022, the Respondent decided to make a deportation order. The Appellant exercised his right of appeal to the First-tier Tribunal and his appeal came before the First-tier Tribunal, which by a decision dated 2nd February 2023, allowed the appeal on human rights grounds.
5. The Respondent appealed to the Upper Tribunal with permission granted by First-tier Tribunal Judge Parkes. Following a hearing before her on 8th August 2023, Upper Tribunal Judge Rimington found material errors of law within the decision of the First-tier Tribunal and set aside the decision, directing that it be remade by the Upper Tribunal. It is on this basis that the appeal comes before us for determination.
The Issues
6. It was agreed by the parties that we are tasked with determining whether the Appellant satisfies the statutory exceptions to deportation outlined in section 117C of the Nationality, Immigration and Asylum Act 2002 (the 2002 Act). The Appellant was sentenced to a period of less than four years’ imprisonment but more than one year. Accordingly, he is required to demonstrate that he meets either Exception 1 or Exception 2 under sections 117C (4) and (5) of the 2002 Act. The Appellant’s position is that he satisfies both of these criteria, whilst the Respondent does not accept that either is satisfied.
The Hearing
7. We were provided with a consolidated bundle of 446 pages. The representatives also provided skeleton arguments, Mr Pullinger’s being dated 25th April 2025, and Mr Terrell’s being dated 2nd May 2025. We heard oral evidence from the Appellant, his mother Ana Correia, his maternal aunt Catia Correia, and his girlfriend Tanem Tjokshum.
8. Whilst a Portuguese interpreter had been booked for the hearing, we were told all witnesses would give their evidence in English. They did so, and at no time during the hearing did we observe any difficulties in communication, nor were any raised by those giving evidence.
The Respondent’s Submissions
9. Mr Terrell reminded us of the public interest in the Appellant’s deportation. The public interest is not solely focused on the likelihood of further offending, but also the public expectation of deportation following serious offending.
10. It was submitted that neither exception was met. As far as Exception 1 was concerned, it was not accepted by the Respondent that the Appellant had been in the United Kingdom lawfully for most of his life, there being limited and inconsistent evidence on this point. Whilst it was accepted the Appellant was socially and culturally integrated into the United Kingdom, it was not accepted that there would be very significant obstacles to his integration into Portugal.
11. This was on the basis of inconsistent evidence about the Appellant’s ability to speak Portuguese, transferrable skills possessed by the Appellant which would enable him to find work, and the availability of State benefits for Portuguese nationals. It was further submitted that the Appellant had a strong family network in the United Kingdom, and it was realistic to assume they would provide short-term financial support to the Appellant upon return to Portugal.
12. Turning to Exception 2, the Appellant’s relationship with Ms Tjokshum was relatively new, having started in November 2023. They do not live together, and there is no evidence of undue harshness. There were a number of assertions made about her circumstances in the United Kingdom which were not supported by documentary evidence. Ms Tjokshum speaks a number of languages and was herself someone who had adapted to life in the United Kingdom moved here from another country. It was not accepted that her separation from the Appellant would be unduly harsh.
13. The Appellant also claimed to have a genuine and subsisting relationship with his son, who was just over 3 years old. There was again inconsistent evidence about the Appellant’s involvement with his son, and no evidence from the mother of the Appellant’s son despite her being aware of the deportation proceedings and the Appellant’s evidence that she wants him involved with their son. Whilst there is an outline of contact provided in the order of the Family Court, there is nothing to suggest the arrangement set out therein had been modified in any way. The Appellant’s family could facilitate the Appellant’s son visiting the Appellant in Portugal.
14. We were accordingly invited to find neither exception was met and to dismiss the appeal.
The Appellant’s Submissions
15. For the Appellant, Mr Pullinger accepted there was limited evidence in relation to the Appellant’s lawful residence, but this was a result of what was said at [17] of the error of law decision, which indicated that lawful residence was not in dispute. There was in any event evidence of the Appellant’s attendance at primary and secondary school, and his own employment records. When considering the Appellant’s ability to integrate into Portugal, we were invited to find the Appellant does not speak Portuguese, although it was accepted he could learn.
16. The Appellant would not benefit from a support system in Portugal because all of his family members lived in the United Kingdom. Whilst there was evidence adduced by the Respondent of a social security system, this was contribution-based and the Appellant had no work history in Portugal.
17. As far as the Appellant’s relationship with his son was concerned, the order of the Family Court was a starting point from which contact was expected to progress as agreed between the parents. There was no evidence that the supervision of the Local Authority had continued and contact had progressed to the point where the Appellant was now having his son overnight for part of the week. The Respondent was not asserting the Appellant’s son could go and live in Portugal, but the ‘stay’ scenario such that the appellant be removed whilst the son remain in the UK would be unduly harsh. There would be a disconnect from the paternal family, and it was unlikely that the child’s mother would promote contact involving travel to Portugal.
18. The Appellant was in a genuine and subsisting relationship with Ms Tjokshum, irrespective of whether they shared one address, they spent every day together. It was accepted that Ms Tjokshum is an intelligent young woman who could learn new languages. She did however have her own caring responsibilities and was in the middle of a Law degree. Moving to Portugal would interrupt those studies and affect her family members. The ‘stay’ scenario would effectively end the relationship between the couple.
19. We were invited to find that the statutory exceptions were met, or alternatively that these factors cumulatively constituted ‘very compelling circumstances’ which are sufficient to outweigh the public interest in the Appellant’s deportation such that we should allow the appeal.
The Law
20. The relevant statutory provision applicable in this appeal is section 117C of the Nationality, Immigration and Asylum Act 2002.
(1) The deportation of foreign criminals is in the public interest.
(2) The more serious the offence committed by a foreign criminal, the greater is the public interest in deportation of the criminal.
(3) In the case of a foreign criminal (“C”) who has not been sentenced to a period of imprisonment of four years or more, the public interest requires C's deportation unless Exception 1 or Exception 2 applies.
(4) Exception 1 applies where—
(a) C has been lawfully resident in the United Kingdom for most of C's life,
(b) C is socially and culturally integrated in the United Kingdom, and
(c) there would be very significant obstacles to C's integration into the country to which C is proposed to be deported.
(5) Exception 2 applies where C has a genuine and subsisting relationship with a qualifying partner, or a genuine and subsisting parental relationship with a qualifying child, and the effect of C's deportation on the partner or child would be unduly harsh.
Analysis and Discussion
Does the Appellant satisfy Exception 1?
21. We turn first to consider whether the Appellant has been lawfully resident in the United Kingdom for most of his life. The evidence of both the Appellant’s mother and his aunt is that the Appellant’s mother entered the United Kingdom in 2003 when the Appellant was 3 years old. The Appellant’s mother explained that she struggled to find work until 2004, when she started work as a Kitchen Porter until 2009 when she started her current employment with the NHS. There is no documentary evidence before us which would support the claim that the Appellant’s mother has worked continuously since 2004.
22. We noted there was some inconsistency between the evidence given by the Appellant’s mother, and that given by his aunt, in that each gave differing evidence about where it was the Appellant’s mother had worked. The Appellant’s mother claimed to have changed employment in 2009, whereas the Appellant’s aunt said his mother had simply changed role within the same company and had always worked for the same employer. Taking into account the lack of documentary evidence and the inconsistent oral evidence on this point, we do not find the Appellant’s mother has worked continuously in the United Kingdom as claimed.
23. In any event, we were reminded by Mr Terrell that even accepting the evidence at its highest, i.e. that the Appellant’s mother had worked since 2004, it does not necessarily follow that the Appellant’s residence was lawful under the Immigration (European Economic Area) Regulations 2016 (‘the EEA Regulations’), or their earlier iteration, the Immigration (European Economic Area) Regulations 2006. Whilst EEA nationals were afforded an initial three month right of residence, during which time no economic activity was required, a person would subsequently have to demonstrate that they were a qualified person or the family member of a qualified person.
24. Whilst it appears the Appellant was largely relying on his education in the United Kingdom, the definition of a ‘student’ under the EEA Regulations is someone who ‘…has assured the Secretary of State, by means of a declaration, or by such equivalent means as the person may choose, that the person has sufficient resources not to become a burden on the social assistance system of the United Kingdom during the person’s intended period of residence’. There is no evidence before us that the Appellant made such a declaration, and we do not find that he was a qualified person during his education.
25. Beyond this, the Appellant’s own evidence suggests that his employment in the United Kingdom spanned six months at most, with him working as a cleaner for one or two months and then working in a café for around four months. Reminding ourselves that the burden of proof is upon the Appellant to show that he has been lawfully resident in the United Kingdom for most of his life, we do not find this burden has been discharged.
26. Even if we are wrong about that, we turn now to consider whether there would be ‘very significant obstacles’ to the Appellant’s integration into Portugal. There were in effect three obstacles advanced by the Appellant which we will consider in turn. First, the Appellant’s ability to speak Portuguese is in dispute. The Appellant claimed his understanding of Portuguese was limited to ‘one or two words’. We have no hesitation in finding the Appellant’s understanding of Portuguese is more advanced that he claims.
27. The Appellant’s mother accepted that she spoke to the Appellant in only Portuguese until he was around 8 or 9 years old. We find that living with his mother, whose evidence was that she was more comfortable speaking Portuguese than English, the Appellant will be able to speak and understand a basic level of Portuguese. There is no reason why, besides his own admission that he lacked ‘motivation’, that the Appellant could not learn Portuguese, and we find that he could reasonably be expected to acquire fluency in a short period of time, especially when he would be ‘immersed’ in the language, and taking his academic ability (evidenced by his GCSE results) into account.
28. We have considered what was said at [14] of Secretary of State for the Home Department v Kamara [2016] EWCA Civ 813, i.e. whether the Appellant will be enough of an insider in terms of understanding how life in the society in that other country is carried on and a capacity to participate in it, so as to have a reasonable opportunity to be accepted there, to be able to operate on a day-to-day basis in that society and to build up within a reasonable time a variety of human relationships to give substance to the individual's private or family life.
29. Whilst we have borne in mind the age at which the Appellant came to the United Kingdom, the Appellant’s mother and his aunt, both of whom he appears to be close to, have retained their ties to Portugal, with his mother last visiting in March of this year, and his aunt confirming she visits ‘here and there’. We consider the Appellant will have some familiarity with how life in Portugal is carried on. There are a number of identity documents provided in evidence from the Appellant’s extended family [pp.147-154] which show they were themselves born in Portugal or hold Portuguese nationality. We find it is likely the Appellant will have gleaned some understanding of life in Portugal as a result of what are evidently strong familial connections to the country.
30. As far as the Appellant’s ability to integrate, we do not find there would be anything preventing him from finding employment, bearing in mind he is in his mid-twenties, and we were not told of any physical or mental health conditions which would make employment difficult for him. It is further clear that the Appellant’s family provide some financial assistance to him here in the United Kingdom, and whilst we accept that his family will have their own financial obligations, we find it is likely that were the Appellant in real need of financial assistance, his family would do what they could to provide this to him, especially in light of their closeness.
31. We were directed to evidence in the bundle [pp.314] from the European Commission entitled ‘Your Social Security Rights in Portugal’. We accept the submission made by Mr Pullinger that the Unemployment Benefits available in Portugal require some previous employment within the two years prior to a claim being made, a requirement the Appellant could not satisfy. We note that there is ‘Social Integration Income’ which the Appellant would appear to be eligible for which would provide some short-term assistance. Taken together with the support we have found would be provided by his family, and his own ability to work, we do not find the Appellant would be without financial support upon return to Portugal.
32. We have taken into account the Appellant’s familiarity and accepted integration into the United Kingdom. We bear in mind the entirety of his education was in the United Kingdom, and there is no evidence that he has returned to Portugal since his arrival here. We do not find that the Appellant’s integration into British society necessarily means that he would not be able to integrate into Portuguese society.
33. Mr Terrell drew our attention to the recent case of Secretary of State for the Home Department v Ackom [2025] EWCA Civ 537, which considered the ability of a German national to integrate into Germany. Whilst this assessment is invariably a fact-sensitive one, there are clear similarities between Germany and Portugal. Portugal is a member state of the European Union and is likely to share similar values to the United Kingdom. The Appellant is not returning to a distant country which is so culturally unlike the United Kingdom that he would struggle to integrate. Whilst there will be a period of adjustment, the factors we have identified lead us to find there would be no obstacles to integration, much less any we would consider ‘very significant’. The Appellant does not meet Exception 1.
Does the Appellant satisfy Exception 2 – Partner?
34. Mr Dias relies on his relationships with his girlfriend and with his son in asserting that he meets Exception 2. We will look at each of these relationships discretely. First, we consider the Appellant’s relationship with Ms Tjokshum, a national of Bulgaria with settled status under Appendix EU. The evidence of both Mr Dias is that the relationship started in November 2023. We accept the evidence we heard that they are a couple, and that they spend nearly every day together. Whilst both maintain separate addresses, we are satisfied that they are in a committed relationship and have been for over 18 months. Accordingly, we are satisfied that Ms Tjokshum is a ‘qualifying partner’ ([19] of Buci (Part 5A: "partner") [2020] UKUT 00087).
35. We ask ourselves whether the effect of the Appellant’s deportation would be unduly harsh on Ms Tjokshum. Looking first at the ‘stay’ scenario, that is whether it would be unduly harsh for Ms Tjokshum to remain in the United Kingdom, neither her nor the Appellant particularise how the impact of the Appellant’s deportation would be unduly harsh. The Appellant’s witness statement of 22nd April 2025 [p.25] states that his deportation would have a ‘detrimental’ effect upon his partner, but this is not particularised.
36. We take into account that whilst the couple are in a relationship, they have never cohabited and do not assert to have any shared financial responsibilities or children together. Their relationship is a relatively recent one, having started less than two years ago. The fact there have been extant deportation proceedings since the genesis of this relationship, and that Ms Tjokshum has been aware since the night they met that there was a possibility of the Appellant’s deportation means it has been something the couple have been able to prepare for. We are not told of any mental or physical health conditions which necessitate the Appellant’s presence with Ms Tjokshum.
37. Ms Tjokshum’s evidence [p.31] is that Mr Dias’ removal would cause ‘irreparable emotional harm’, however this is an unparticularised assertion. It would be open to the couple to maintain their relationship by way of visits. Both enjoy freedom of movement as EEA citizens, and we also take judicial notice of the relatively low cost of flights to Europe. There is, in reality, no reason why the relationship could not be maintained by visits and regular electronic communication should Ms Tjokshum choose to remain in the United Kingdom following the Appellant’s deportation. Even were the effect of deportation to sever the relationship, we do not accept the consequences would be ‘unduly harsh’ for Ms Tjokshum.
38. As to whether Ms Tjokshum could relocate to Portugal with Mr Dias, there were two reasons advanced as to why this would be unduly harsh. First, Ms Tjokshum’s oral evidence was that her mother is a single parent who is disabled. We note that this does not feature in Ms Tjokshum’s witness statement, where there is only a reference to ‘family and responsibilities’ in the United Kingdom which are not detailed. The explanation for this omission was that Ms Tjokshum ‘did not think about it’. It is difficult to understand why, if the weight of providing assistance to her disabled single mother is so great, this would not feature in the witness statement provided by a person studying Law who must have appreciated its importance. Despite his ‘strong relationship’ with his girlfriend’s family, Mr Dias makes no mention of her mother’s poor health in his witness statement. There was no medical evidence provided in support of the claim that Ms Tjokshum’s mother is disabled, which we consider would have been easily obtainable. We reject the evidence given on this point, and do not find that Ms Tjokshum is a carer for her mother.
39. It was further clear in the oral evidence that it was a preference for Ms Tjokshum to follow Mr Dias to Portugal. We take into account that Ms Tjokshum has successfully adapted to an unfamiliar country, having only moved to the United Kingdom in April 2018. She can speak three languages and accepted she had capacity to learn Portuguese despite not ‘wanting’ to learn it. We accept that she has another year left of her Law degree, and that she would prefer not to transfer in the middle of her education. There is in reality no reason why she could not finish her studies and seek employment in Portugal having regard to her EEA citizenship.
40. We remind ourselves that ‘‘unduly harsh’ does not equate with uncomfortable, inconvenient, undesirable or merely difficult. Rather, it poses a considerably more elevated threshold. "Harsh" in this context, denotes something severe, or bleak. It is the antithesis of pleasant or comfortable. Furthermore, the addition of the adverb "unduly" raises an already elevated standard still higher’. (MK (Sierra Leone) v Secretary of State for the Home Department [2015] UKUT 223).
41. Pulling these threads together, we do not find that the Appellant has established that the effect of his deportation would be unduly harsh on Ms Tjokshum. They are a young couple who have the skills as well as the practical advantage of free movement rights, and there is no reason why they could not continue their relationship outside of the United Kingdom together.
Does the Appellant satisfy Exception 2 – Child?
42. The Appellant has provided evidence from the Family Court in relation to his contact with his son. We say at the outset that the evidence on this issue was inconsistent in a number of respects. First, we note that there are references in the evidence to a paternity test being conducted in respect of the Appellant and his son. These references are in the order of HHJ Lewis dated 21st March 2025 [p.21] and also in correspondence between the Appellant’s solicitor and the Local Authority [p.146]. It is clear there appeared to be a question at some point over the paternity of the child, but we accept that the Family Court are unlikely to have made the orders it did without knowledge that the Appellant was indeed the father of the child.
43. The final order made by DJ Barrie was made on 22nd February 2023. The order provides for direct contact between the Appellant and his son, and a Supervision Order under s35 of the Children Act 1989. The schedule for contact is set out in an annex to the order [p.9]. From 21st February 2023, the Appellant was to have 6 sessions of direct contact with his son, these sessions were 2 hours a month. There was to be a review in May 2023, with a view to progressing contact.
44. There is no evidence before us of the review in May 2023. It was also confirmed by Mr Dias that there had been no further involvement of the Family Court since the final order was made. We note that a Local Authority Family plan dated October 2024 recorded a meeting attended by the child’s two paternal aunts, his paternal grandmother, his mother and his godmother and the appellant, indicates Mr Dias would have his son overnight for two nights a week [p.16]. There is also provision for Mr Dias to ‘sometimes’ have his son every other weekend. The oral evidence given by Mr Dias was that the child’s mother was the primary carer, indicating that she has the child the majority of the time.
45. Whilst there is provision for increased contact between the Appellant and his son, it does not follow that the arrangement is adhered to. There was no evidence before us from the mother of the child confirming the Appellant’s role in the life of their son, despite the oral evidence that she is aware of the proceedings and that she wants the Appellant to continue to be involved. We note the concerns of the social worker involved with the family, that ‘there are concerns re his relationship with his dad [Mr Dias] and consistency with this relationship’ [p.15], and in a letter which states the child ‘deserves a father that is more present in his life’ [p.20]. The Appellant stated he had ’never met’ the social worker who made these comments however we do not accept this. The social worker makes specific reference to ‘observing’ the Appellant and his son together, and the Appellant’s mother who said she had met the social worker ‘once’ with the Appellant.
46. We also found elements of the oral evidence which told against a consistent involvement with the child in the way the Appellant framed it. The Appellant’s mother was asked ‘how it would be difficult for the child if his father was removed?’. The answer she gave was unusual in that she made no reference to the child, simply saying ‘not just for him but for me as a mother’. Despite this opportunity to detail the relationship between the Appellant and his son, she opted to focus on her own difficulties. In our judgment, this was either an attempt to avoid being asked any further questions about contact for fear of contradicting the Appellant’s evidence, or a reflection of the reality that there is only limited contact between the Appellant and his son, albeit there may be more contact with the appellant’s own extended family as evidenced by the Local Authority plan.
47. Ms Tjokshum was asked about her relationship with Mr Dias. She said saw him ‘pretty much every day’. She was then asked what Mr Dias did during the day. She said he helped his mother, goes shopping for her, and helped her mother with the garden. There was no mention at all in that answer which gave any indication that Mr Dias spent up to five days a week with his son or as to the time actually spent. This evidence, together with the lack of evidence from the child’s mother, and the social worker’s concerns around consistency lead to our finding that the relationship between the Appellant and his son is one which is tenuous at best.
48. It was not suggested by Mr Terrell that the Appellant’s son could live in Portugal with Mr Dias. In light of the current dynamics, we agree that this would not be an option, and our consideration is limited to the ‘stay’ scenario. The contact between Mr Dias and his son is inconsistent, and we also remind ourselves that the child has only just turned 3 years old, and the limited involvement of Mr Dias by his own evidence started in 2023. The child will continue to have the benefit of the involvement of the family of Mr Dias, as well as his mother, the primary carer. Whilst we note there have been difficulties in her mental health, it is clear from the evidence before us that she has a support system independent of Mr Dias and his family [p.16].
49. We do not consider the Appellant’s deportation would be the end of the relationship between the Appellant and his son. There is no reason why the child could not be taken to visit his father in Portugal by his paternal family, who themselves visit Portugal regularly. When asked whether this would be possible, Mr Dias said that the child’s mother would not want to be around him, but that she would ‘get someone to drop him off’ if that was the case. There is no evidence before us that the impact of the Appellant’s deportation would be unduly harsh upon his child.
Are there very compelling circumstances which outweigh the public interest in the Appellant’s deportation?
50. In our consideration of the public interest, we take into account holistically all the evidence presented by the appellant and considered the factors cumulatively. Neither of the exceptions under Section 117C of the 2002 Act have been made out. We have paid regard to the appellant’s claimed length of residence in the UK. We have taken into account Section 117B.
51. We also consider the seriousness of the Appellant’s offending. The Appellant was sentenced to 30 months’ imprisonment. The circumstances of his offending are outlined in the Judge’s sentencing remarks [p.307]. The Appellant committed a robbery, the victim of which was someone known to him. The Appellant held a Rambo-type knife ‘near to’ the victim’s neck for 10 seconds. The impact upon the victim was such that the sentencing Judge deemed it ‘not possible’ to sentence the Appellant to anything other than immediate custody. We have taken into account the OASys report’s conclusions, that there is a low risk of reoffending [p.386]. We are reminded that the public interest does not begin and end with the Appellant’s risk of reoffending, but we are also to take into account the need to maintain the confidence of the public in their expectation that foreign nationals who commit crime will be deported. We find that there is a significant public interest in the Appellant’s deportation.
52. The Appellant falls short of satisfying any of the exceptions which would apply. We do not find that there is anything in the Appellant’s circumstances which would outweigh the public interest in his deportation, and we accordingly find that the Appellant’s deportation to Portugal is proportionate and lawful.
Notice of Decision
The decision of the First-tier Tribunal having been set aside, we remake the decision, dismissing the Appellant’s appeal against the decision to refuse his human rights claim.

CJ Williams

Deputy Judge of the Upper Tribunal
Immigration and Asylum Chamber

12th June 2025