Tribunal decisions

The decision

IN THE UPPER TRIBUNAL
IMMIGRATION AND ASYLUM CHAMBER
Case No: UI-2023-002325

First-tier Tribunal No: HU/04693/2021

THE IMMIGRATION ACTS

Decision & Reasons Issued:
On the 24 March 2025

Before

DEPUTY UPPER TRIBUNAL JUDGE Ó CEALLAIGH KC
UPPER TRIBUNAL JUDGE SHERIDAN

Between

PK
(ANONYMITY ORDER MADE)
Appellant
and

The Secretary of State for the Home Department
Respondent

Representation:
For the Appellant: No representation
For the Respondent: Ms Nwachuku, Senior Home Office Presenting Officer

Heard at Field House on 10 March 2025

Order Regarding Anonymity

Pursuant to rule 14 of the Tribunal Procedure (Upper Tribunal) Rules 2008, the appellant is 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. Failure to comply with this order could amount to a contempt of court.

DECISION AND REASONS
Introduction
1. This is the remaking of a decision in the appellant’s human rights appeal. It follows the appellant’s successful appeal against the First-tier Tribunal’s dismissal of his appeal against the respondent’s refusal of his human rights claim.
Procedural history
2. The matter has a complex procedural history which bears setting out in some detail.
3. First however, we should address the fact that the appellant was not represented before us. The appellant has not been represented at any hearing for some time in this case, nor has he attended. We are quite satisfied that adequate attempts have been made to contact the appellant and to inform him of these proceedings. The previous hearing before Upper Tribunal Judge Sheridan and Deputy Upper Tribunal Judge Durance was adjourned precisely in order to provide a final opportunity for him to be contacted at addresses, different to that on the database of the Tribunal, in the possession of the respondent. Nevertheless he has again not appeared today.
4. The facts of the case in procedural terms are these.
5. On 19 May 2021 the respondent served the appellant with a stage 1 deportation liability notice.
6. On 11 June 2021 the appellant’s then solicitors served evidence and a letter on the respondent.
7. On 27 July 2021 the respondent served a non-conducive Stage 1 notice of a decision to make a deportation order on the appellant.
8. On 7 September 2021 the respondent served a decision on the appellant refusing his human rights claim. He appealed.
9. On 16 January 2023 the appellant’s then representatives filed and served a skeleton argument arguing that the appellant had permanent residence and so the decision should have been taken by reference to EU law. The basis for this was that the appellant had been present and working in the United Kingdom for some time before the United Kingdom left the European Union. He had not, however, applied to the EU Settlement Scheme.
10. On 24 January 2023 the Tribunal directed the respondent to confirm whether it was accepted that the appellant had acquired permanent residence.
11. On 14 February 2023 the respondent complied with this direction setting out her position that the Regulations were not saved for this appellant as the grace period had ended.
12. On or before 13 March 2023 the appellant’s representatives filed a supplementary skeleton argument arguing inter alia that the appellant could be deemed to have made a valid EUSS application by virtue of his response to the Section 120 notice.
13. On 12 May 2023 the appellant’s appeal was dismissed by First-tier Tribunal Judge Raymond. He appealed further.
14. On 10 December 2023 the appellant’s appeal was allowed and the FTT’s decision was set aside. The appeal was retained in the Upper Tribunal for remaking.
15. On 19 February 2024 there was a remote case management hearing before Upper Tribunal Judge Norton-Taylor who subsequently made directions for the respondent to set out her position in respect of the appellant’s argument that he was entitled to rely on the protection of the Withdrawal Agreement by virtue of his response to the s120 Notice. The appellant did not appear for that hearing. The respondent duly set out her position in writing.
16. On 3 October 2024 the appellant failed to attend a case management hearing. Nevertheless Upper Tribunal Judge Norton-Taylor proceeded to make findings on the issues before him, in particular whether or not the appellant’s case involved any part of European Union law. He accepted the respondent’s submission that it did not, and accordingly that is the basis on which we too proceed.
17. On 9 October 2024 Principal Resident Judge Blum directed that the matter be heard by a differently constituted Tribunal on the basis that it was not practicable for the original Tribunal to complete the hearing or give its determination without undue delay.
18. On 17 January 2025, however, the appellant again did not attend as he had not attended those earlier hearings. It then transpired that the Tribunal had a different address for the appellant than those in the respondent’s records. In the circumstances the matter was adjourned for further enquiries to be made.
19. The matter has now come again before the Tribunal this morning. Again the appellant has not attended. However, the Secretary of State for the Home Department is ably represented by Ms Nwachuku.
Issues
20. By virtue of the earlier determination of Upper Tribunal Judge Norton-Taylor, the Secretary of States’s decision to refuse the appellant’s human rights claim is the sole issue before us. It follows that the question that the Tribunal must consider is whether or not the appellant’s deportation would be contrary to Article 8 ECHR.
21. Section 117C of the Nationality, Immigration and Asylum Act 2002 provides as follows:
“117C Article 8: additional considerations in cases involving foreign criminals
(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.
(6) In the case of a foreign criminal who has been sentenced to a period of imprisonment of at least four years, the public interest requires deportation unless there are very compelling circumstances, over and above those described in Exceptions 1 and 2.
(7) The considerations in subsections (1) to (6) are to be taken into account where a court or tribunal is considering a decision to deport a foreign criminal only to the extent that the reason for the decision was the offence or offences for which the criminal has been convicted.”
22. Given the appellant’s age when he arrived in the United Kingdom there can be no question at all of Exception 1 applying. The sole issue before us is consequently whether or not Exception 2 applies, and if it does not, whether the appellant’s deportation would be disproportionate and in breach of Article 8 ECHR in any event.
The hearing
23. Although the appellant did not attend we heard submissions from Ms Nwachuku on behalf of the Secretary of State for the Home Department. She noted that there was no additional evidence of the appellant’s relationship with his daughter since the documents had been prepared for the hearing before FTTJ Raymond some two years ago.
24. Ms Nwachuku noted that the Secretary of State had never accepted that the appellant and his daughter had a genuine and subsisting relationship. In 2021 the position in the refusal letter was that it was not accepted that they had a genuine and subsisting relationship and as at the date of hearing, we do not have any up-to-date evidence. We do not know at this stage if the appellant is seeing his daughter at all and consequently the position in the refusal letter is maintained.
25. In respect of the question of whether or not the relationship exists the Secretary of State says that there is no evidence today. In respect of the question of whether or not the appellant’s deportation is or would be unduly harsh, the Secretary of State’s position is that the Tribunal has no evidence one way or the other.
26. Ms Nwachuku also drew our attention to a psychological report dated 8 December 2022 which is relied on by the appellant. She noted that this is quite out of date but even so points to the assessment that he was at the time it was produced estimated to be a medium risk of reoffending, having previously committed similar offences in Poland. She noted that he was in regular contact with his parents.

Discussion
27. We note with some concern that this case involves a young child who is potentially to be permanently separated from her father. We do not have any up-to-date evidence in respect of either the child’s position, or the current state of their relationship, or indeed on the question of whether there is still any contact at all between her and her father. We must proceed on the basis of the evidence before us, which is extremely and regrettably stale and limited.
28. The appellant is a Polish national born on 9 August 1992. He has lived and worked in the United Kingdom since 2012, but became unemployed in 2020 due to the Covid pandemic. In October 2020 he was convicted of four counts of burglary, one count of attempted burglary, and one count of fraud by false representation.
29. The appellant has a daughter who is now almost 12 years old. In 2021, while the appellant was in custody, proceedings were instigated by the local authority to remove the child from her mother’s care due to concerns that she was being abused. The abuse arose from the mother’s issues involving alcohol and drugs. As a result the child was placed with her maternal grandmother and a special guardianship order was made.
30. As at the date that we have evidence for, which is some two years ago now, the child was living with her grandmother. Again as at that date, the appellant appears to have had considerable contact with the child and to have been a major figure in her life. According to the witness statements that are before the Tribunal, the appellant saw his daughter every day following his release from prison. They lived around 0.8 miles apart, which is ten minutes’ walk.
31. If it were still the case that they were seeing each other daily, as suggested in those witness statements, which have not been tested before this Tribunal because neither the appellant nor the witnesses have appeared, we would not have been inclined to accept the Secretary of State’s submission that the appellant does not have a genuine and subsisting relationship with his daughter. That indeed would have been a bold submission to make.
32. However, the reality is that we have no evidence from the past two years demonstrating that there is, as at the date of this hearing, a genuine and subsisting relationship between the appellant and his daughter. It follows inexorably that the appellant cannot succeed under Exception 2 in Section 117C of the 2002 Act. Moreover, there is no evidence whatsoever to show that as at today’s date, even if the relationship were subsisting, it would be unduly harsh for the child to be separated from the appellant.
33. There are documents and witness statements suggesting that, as at the time the witness statements were produced in 2023, there was at least a prima facie case that deportation would have been unduly harsh on the child given the very difficult circumstances in which she appeared to be living.
34. Nevertheless, on the basis that the Tribunal must examine the situation as it exists today, there is no conclusion available to us other than that the appellant has failed to substantiate his case that he has a genuine and subsisting relationship with his daughter, or indeed that the severing of that relationship by his deportation would be unduly harsh. There is no other basis suggested on which the appeal could succeed under Article 8 ECHR. It follows that the appellant’s appeal is dismissed.
Notice of Decision
35. The Upper Tribunal previously set aside the decision of the First-tier Tribunal. We now remake that decision by dismissing PK’s appeal against the Secretary of State’s decision to refuse his human rights claim.

Greg Ó Ceallaigh KC

Deputy Judge of the Upper Tribunal
Immigration and Asylum Chamber

17 March 2025