Tribunal decisions

The decision

IN THE UPPER TRIBUNAL
IMMIGRATION AND ASYLUM
CHAMBER
Case No: UI-2023-004411

First-tier Tribunal No: IA/10711/2022
PA/54467/2022

THE IMMIGRATION ACTS

Decision & Reasons Issued:
On 29 April 2025

Before

UPPER TRIBUNAL JUDGE MANDALIA

Between

Secretary of State for the Home Department
Appellant
and

GM
(ANONYMITY DIRECTION MADE)
Respondent

Representation
For the Appellant: Ms R Arif, Senior Home Office Presenting Officer
For the Respondent: Ms A Bachu. Instructed by Primus Solicitors

Heard at Birmingham Civil Justice Centre on 2 December 2024
Decision and Reasons
Anonymity
Pursuant to rule 14 of the Tribunal Procedure (Upper Tribunal) Rules 2008, GM is granted anonymity. I have borne in mind the principle of open justice and balanced that against the possibility of the appellant being identified in circumstances where he claims, in part, to be at risk upon return to Iran. No-one shall publish or reveal any information, including the name or address of GM, likely to lead members of the public to identify GM. Failure to comply with this order could amount to a contempt of court.
Introduction
1. The appellant in the appeal before me is the Secretary of State for the Home Department (“SSHD”) and the respondent to this appeal is GM. However, for ease of reference, in the course of this decision I adopt the parties’ status as it was before the FtT. I refer to GM as the appellant, and the Secretary of State as the respondent.
The Background
2. The appellant is a national of Iran of Kurdish ethnicity. He first arrived in the UK in July 2004 and claimed asylum. He claimed that he was at risk upon return because his girlfriend’s parents had reported him to the authorities for having sex with her outside of marriage. His claim was refused by the respondent on 29 August 2004 and an appeal against the respondent’s decision was dismissed by ‘Adjudicator’ Mrs N Bircher for reasons set out in a decision promulgated on 29 December 2004. The Adjudicator did not find the appellant to be a credible witness. She found the appellant’s account was littered with inconsistencies and she concluded the appellant was not subjected to the ill-treatment he had claimed. She rejected the appellant’s claim that he had a sexual relationship with a girl that places him at risk upon return from either the authorities or the girl’s family. The Adjudicator concluded the appellant will not be at risk upon return to Iran and dismissed his appeal. Permission to appeal was refused by the Immigration Appeal Tribunal on 4 February 2005.
3. On 25 July 2008, the appellant was convicted at Maidstone Crown Court for “Possessing false identity document with view to gaining pecuniary advantage”. He was sentenced to 12 months imprisonment. He was made the subject of a deportation order. The appellant was notified in August 2008 of his liability to deportation. The respondent considered information provided by the appellant and on 12 November 2008, a deportation order was signed by the respondent. On 17 November 2008, the respondent considered representations that had been made by the appellant and concluded that the exceptions set out in section 33 of the UK Borders Act 2007 do not apply. The appellant was informed that he must now leave the UK and that any appeal may be brought after he has left the UK.
4. The appellant subsequently made further submissions to the respondent that were considered by the respondent by reference to paragraph 353 of the Immigration Rules. On 7 March 2011, the respondent decided that the further submissions made on 30 April 2010 do not amount to a fresh claim. Further submissions were again made by the appellant on 15 April 2011. On 22 May 2014, the respondent refused to revoke the deportation order.
5. Further submissions were made again by the appellant on 3 April 2019 and the appellant subsequently provided a statement dated 25 June 2019 claiming that he will be at risk upon return to Iran because of his sur place activities in the UK. That was supplemented by a further statement dated 22 September 2020 and further submissions from the appellant’s representatives (Freedom Solicitors) dated 22 September 2020 and 15 April 2022.
6. On 6 October 2022 the respondent made a decision to refuse the appellant’s protection and human rights claims. The appellant was informed that he does not qualify for leave to remain in the UK on any basis. The respondent also concluded that there are no grounds on which to revoke the deportation order.
7. The appellant’s appeal against that decision was allowed on human rights grounds only by First-tier Tribunal Judge Blackwell for reasons set out in a decision dated 30 August 2023.
The Appeal to the Upper Tribunal
8. The respondent claims the judge erred in finding that the appellant’s deportation would result in unduly harsh consequences for the appellant’s child, [C]. The respondent claims the judge fails to identify anything that on the facts and findings made, establishes that the high threshold applicable when considering the ‘unduly harsh’ test, is met. The respondent claims the judge’s reasoning that the appellant’s deportation would result in undue harshness for the appellant’s son, simply does not establish that the high threshold, as set out in the established case law cited by the respondent, is made out.
9. Permission to appeal to the Upper Tribunal was refused by FtT Judge Seelhoff to both parties on 2 October 2023. Both parties renewed their applications for Permission to Appeal to the Upper Tribunal. On 28 November 2023, Upper Tribunal Judge Pickup refused the appellant Permission to Appeal, but granted the respondent permission to appeal. He said:
“2. Both the appellant and the respondent renew their applications for permission to appeal to the Upper Tribunal against the decision of the First-tier Tribunal (Judge Blackwell) allowing the appellant’s appeal against the respondent’s decision of 6.10.22 refusing his further submissions in support of an application to revoke the deportation order made on 17.11.08, made on the basis of private and family life with his partner and British citizen son born in June 2021.
3. The First-tier Tribunal dismissed the asylum and article 3 ECHR claims, finding that as the appellant does not genuinely hold pre-Kurdish political beliefs and had fabricated his claim, and could delete the Facebook posts prior to return to Iran, he was not at real risk of persecution on return. However, the appeal was allowed on article 8 ECHR grounds, the judge finding removal would be unduly harsh on the child, C.
4. Both the respondent and the appellant sought permission to appeal to the Upper Tribunal from the First-tier Tribunal. By the decision of the First-tier Tribunal dated 2.10.23, permission was refused to both parties. Both have renewed their application.
5. In summary, the appellant’s grounds argue that the First-tier Tribunal (i) made finding unfounded in evidence; (ii) erred in the assessment of sur place political activity; (iii) failed to correctly weigh evidence of membership of online political groups when assessing whether he will have already come to the attention of the Iranian authorities; and (iv) erred in finding the political activities not genuinely motivated by failing to provide adequate reasoning.
6. Unarguably, the matters raised in the grounds and relating to the findings between [51] and [58] of the decision are little more than mere disagreements with the findings. As explained in MR (permission to appeal: Tribunal’s approach) Brazil [2015] UKUT 00029 (IAC), “A judge considering an application for permission to appeal to the Upper Tribunal must avoid granting permission on what, properly analysed, is no more than a simple quarrel with the First-tier Tribunal judge’s assessment of the evidence.” Whether or not the appellant has borrowed a sign for the purpose of the photograph, the point remains that it is not clear that the appellant is part of the protest. The finding that he had a very minor role, and no more than part of the crowd was unarguably open on the evidence. It was for the appellant to demonstrate that he was a regular attender and whilst he has attended several such activities, the finding that his behaviour does not suggest genuinely motivated participation was unarguably entirely open on the evidence. Similarly, it was open to the judge to disbelieve the appellant’s claim to cut hair only for free.
7. Unarguably, the judge applied the law correctly to the Facebook posts. The judge was not obliged to look at the appellant’s mobile phone but it was for the appellant to present his evidence in advance and in a way that could be checked by the respondent. Nothing this ground demonstrates any arguable claim. The third and fourth grounds overlap with earlier grounds and amount to a speculative argument that the appellant has come to the attention of the Iranian authorities. As to weight to be given, that is a matter for the judge. As explained in Herrera v SSHD [2018] EWCA Civ 412, the Court of Appeal said that it is necessary to guard against the temptation to characterise as errors of law what are in truth no more than disagreements about the weight to be given to different factors, particularly if the judge who decided the appeal had the advantage of hearing oral evidence.
8. In short, the appellant’s grounds do not advance beyond mere disagreement and minor immaterial fault-finding with the decision.
9. In summary, the respondent’s grounds argue that inadequate reasons were provided for the finding that removal would be unduly harsh on the child, C.
10. It is at least arguable that the findings relating to unduly harsh are inadequate and fail to properly reason the finding. Little is said beyond playing with the child and the limited prospect of the child visiting the appellant in Iran. It is arguable that nothing in the decision comes close to being sufficient to meet the high threshold.
11. For the reasons explained above, no arguable material error of law is disclosed by the appellant’s grounds. However, there is at least an arguable error of law in respect of the respondent’s grounds”
The Hearing of the Appeal Before me
10. Ms Arif adopted the grounds of appeal. She submits the judge gave inadequate reasons for finding that the removal of the appellant ‘would be unduly harsh on [C]’.
11. In reply. Ms Bachu referred to paragraph [26] of the witness statement of the appellant dated 12 January 2023 in which he refers to the family life he has with his son. The appellant confirms that although he does not live with his partner, they are on friendly terms and they are neighbours. He is able to see his son every day and they spend most of their time together just playing. He loves his son and would like to see him grow up and to be able to guide him through life. The appellant states he is proud of his Kurdish heritage and he wants his son to know he is Kurdish, and to learn about the language and culture.
12. Ms Bachu also refers to the letters that were before the FtT from the appellant’s partner dated 5 July 2021 and 15 August 2023. She confirms the appellant is very supportive of her and their son, and also her other children. She confirms the appellant is ‘very involved in raising their son and he loves the appellant very much. She states the appellant comes to see his son daily and takes him out to give her a break. Ms Bachu submits the judge properly noted the appellant’s partner and son would be unable to visit the appellant in Iran because of the political landscape and the importance of the child’s ethnicity and dual heritage. Ms Bachu submits the judge had regard to a number of relevant factors that cumulatively establish that effect of the appellant’s deportation on [C] would be unduly harsh.
Decision
13. In considering the respondent’s claim that the decision of the FtT is vitiated by a material error of law and in reaching my decision, I have had in mind the need to exercise judicial restraint before interfering with a decision of the FtT. I have been guided by the judgment of Lewison LJ in Volpi & Anor v Volpi [2022] EWCA Civ 464 at [2]-[5] regarding the approach to challenging a finding of fact. The Court of Appeal emphasised that the Upper Tribunal may interfere with findings of fact and credibility only where such a finding is ‘plainly wrong’ or ‘rationally insupportable’. I have also had regard to the guidance on judicial restraint given by the Court of Appeal in Ullah v Secretary of State for the Home Department [2024] EWCA Civ 201.
14. There is no doubt the appellant is a ‘foreign criminal’ as defined in s117D. The judge identified the issues in the appeal at paragraph [15] of the decision. In summary, the judge rejected the appellant’s international protection claim and I need say no more about that. As far as the appellant’s Article 8 claim is concerned, the respondent had accepted the appellant has a genuine and subsisting relationship with both his partner and their child [C] who was born on 15 June 2021 and is a British citizen.
15. The judge did not accept the effect of the appellant’s removal on his partner would be unduly harsh. The judge noted the relationship was formed at a time when the appellant was in the UK unlawfully. There is, the judge said, nothing beyond-the-ordinary about that relationship that outweighs the public interest.
16. The judge referred to the evidence before the Tribunal regarding the appellant’s relationship with his son. The judge accepted that although the appellant does not live with his partner, they are neighbours and he sees his son daily. The judge accepted the evidence that “most of the time they spend together is spent playing, due to his age”. The oral evidence of the appellant was that “he cuts the hair of his son”. The judge acknowledged that “relationships such as play, the sort of relationships that will be most important to a young child, cannot be easily satisfied remotely. Nor can hair be cut remotely.” The judge also accepted it would not be possible for the appellant’s partner and son to visit Iran. The judge found it is in the best interest of the appellant’s son to have both his parents with him in the UK and that the appellant “plays and important role in [his son’s] life”. The judge referred to the relevant public interest considerations set out in s117C of the Nationality, Immigration and Asylum Act 2002. The judges noted, at [84], that the respondent did not delay in making the deportation order and that a significant delay in enforcing the appellant’s deportation was attributable to the appellant. He absconded between 2013 and 2018. Further submissions made by the appellant in April 2019, September 202, July 2021 and April 2022 were only responded to on 6 October 2022. The judge acknowledge that certain of those years were during the pandemic, but found that there “has been substantial delay by the Secretary of State which diminishes the public interest in the removal of the appellant.” The judge referred to the decision of the Upper Tribunal in MK (Sierra Leone) v SSHD UKUT 223.
17. The judge set out his reasons for allowing the appeal on Article 8 grounds at paragraphs [90] to [97] of the decision. The judge said it would be impossible for the appellant’s partner and [C] to visit him in Iran. The relationship might be able to continue in some form through modern means of communication, but would be more limited in scope than the relationship in its current form. The appellant has demonstrated a commitment to the relationship. He sees his son everyday and takes him out to give his mother a break. He plays with the child. He cuts his hair. He has aspirations for the relationship: he wants to teach his son Kurdish and teaching about Kurdish culture. If the appellant were to be deported his son would lose all possibility of that. More importantly, he would lose having a second adult in his life to provide love, affection and understanding.
18. In HA (Iraq) v SSHD [2022] UKSC 22, Lord Hamblen (with whom Lord Reed, Lord Leggatt, Lord Stephens and Lord Lloyd- Jones agreed) said:
“41. Having rejected the Secretary of State's case on the unduly harsh test it is necessary to consider what is the appropriate way to interpret and apply the test. I consider that the best approach is to follow the guidance which was stated to be "authoritative" in KO (Nigeria) , namely the MK self-direction:
"… '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."
19. It was for the judge to make an informed assessment of the effect of deportation on the appellant’s son. This was in fact an application for revocation of the deportation order that the appellant is subject to. The underlying question for the judge was whether the harshness which the deportation will cause for the appellant’s son is of a sufficiently elevated degree to outweigh that public interest, which in this context also includes the maintenance of effective immigration control, noting that the appellant absconded for a number of years and thwarted earlier attempts to deport him.
20. A fact sensitive assessment was required and I accept that how a child will be affected by a parent's deportation will depend on an almost infinitely variable range of circumstances. It is however difficult to see from the factors referred to by the judge how that elevated standard has been met. The question is not whether the effect of the appellant’s son is merely harsh, but unduly harsh. The judge found that the appellant plays an “important role” in the child’s life. The judge does not say what that “important role” is, given the child’s age and the fact that he lives with, and his primary carer is, his mother. The fact that it is in the child’s bests interest to have both parents with him in the UK is not a trump card. There will inevitably be an impact on the appellant's son but the fact that the appellant’s son will not be able to and play with his father daily or have his hair cut by him, might be described as harsh or inconvenient, but that is not the test. True it is that the appellant’s partner and son may not be able to travel to Iran, but there is no reason why they cannot continue their relationship through modern means of communication and meeting elsewhere. The factors referred to by the judge could not rationally be described as bleak or severe, let alone excessively or inordinately so. The consequences of the appellant’s deportation may well, rationally, be described as harsh, but not unduly harsh.
21. I am satisfied therefore that this is one of those appeals to the Upper Tribunal in which the judge has failed to give adequate reasons for the finding that the effect of the appellant’s deportation on his son would be unduly harsh. The reasons given do not demonstrate that the judge applied the relevant test and had in mind the elevated threshold.
22. I therefore set aside the decision for material error of law. As to the further consideration of the appeal, as a result of the nature of the error of law identified, it is likely that further fact-finding on the circumstances of the appellant’s son will be necessary with updating evidence.
23. I am satisfied that the level of fact-finding is such that the appeal should, in fairness to the appellant, be remitted to the FtT for a rehearing as to the appellant’s Article 8 claim only under section 12 (2) (b) (i) of the TCE 2007 and paragraph 7.2 (a) of the Presidential Practice Statement (Begum (remaking or remittal) Bangladesh[2023]UKUT 0046 (IAC) considered). The Judge did not go on to consider the issue of “very compelling circumstances” (S 117C(6)) having concluded that Exception 2 in s117C(5) applies. It is of course for the FTT to give directions in the appeal and as to case management review before any hearing.
Notice of Decision
24. The decision of the First-tier Tribunal involved the making of an error on a point of law limited to the appellant’s Article 8 claim.
25. The decision to allow the appellant’s appeal on Article 8 grounds is set aside.
26. The appeal on the ground that the respondent’s decision would be unlawful under section 6 of the Human Rights Act 1998 is remitted to the FtT for a hearing.

V. Mandalia
Upper Tribunal Judge Mandalia

Judge of the Upper Tribunal
Immigration and Asylum Chamber

28 March 2025