Tribunal decisions

The decision

IN THE UPPER TRIBUNAL
IMMIGRATION AND ASYLUM CHAMBER
Case No: UI-2023-004749

First-tier Tribunal No: PA/10326/2018

THE IMMIGRATION ACTS

Decision & Reasons Issued:

1st May 2025

Before

UPPER TRIBUNAL JUDGE HIRST
DEPUTY UPPER TRIBUNAL JUDGE NEILSON

Between

SECRETARY OF STATE FOR THE HOME DEPARTMENT
Appellant
and

MD
Respondent

Representation:
For the Appellant: Mr Tufan, Senior Home Office Presenting Officer
For the Respondent: Mr Lester, counsel instructed by Ata & Co Solicitors

Heard at Field House on 18 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
1. The Secretary of State appeals from the decision of the First-tier Tribunal promulgated on 18 August 2023, allowing the Respondent’s deportation appeal on human rights (Article 8) grounds. Permission was granted by the Upper Tribunal on 12 December 2023.
2. The appeal came before the Upper Tribunal at an error of law hearing on 18 February 2025. At the hearing the panel heard submissions from the parties and reserved our decision. For the reasons set out below, we find that there was no error of law in the decision of the First-tier Tribunal and decline to set the decision aside.
Background
3. The Respondent is a national of Guinea. He arrived in the UK on 4 March 2007 as an unaccompanied child and claimed asylum. His asylum claim was refused and subsequent appeal dismissed but he was granted discretionary leave to remain until 7 January 2008. On 12 December 2007 he submitted an application for further leave to remain which was refused. His appeal against the refusal was dismissed on 31 August 2011 and he became appeal rights exhausted on 26 October 2011.
4. The Respondent has a significant number of criminal convictions. In November and December 2015 he failed to appear on several occasions for non-payment of fines and for a criminal charge of possessing an offensive weapon. He was sentenced for those offences on 27 January 2016 to 12 weeks’ imprisonment. On 2 November 2016 he was convicted of four counts of possession with intent to supply class A drugs and was sentenced to 2 years and 8 months’ imprisonment. That sentence triggered the Appellant’s decision on 6 August 2018 to deport the Respondent under s32(5) UK Borders Act 2007. The Respondent was sentenced again on 7 May 2022 to 32 weeks’ imprisonment for possession of a blade.
5. The Respondent’s deportation appeal came before the First-tier Tribunal on 5 June 2023. The Tribunal dismissed the Respondent’s protection claim, concluding that although the Respondent had been arrested, detained and ill-treated by the Guinean authorities in 2007 following his attendance at a demonstration, he had not demonstrated that he would continue to be of adverse interest to the authorities or be at risk on return as a result.
6. The First-tier Tribunal judge considered the Respondent’s Article 8 claim under the Immigration Rules and s117C Nationality, Immigration and Asylum Act 2002 (‘NIAA 2002’). It was common ground before the First-tier Tribunal that the Respondent could not meet Exception 1 in paragraph 117C(4) NIAA 2002, because he had not been lawfully resident in the UK for most of his life. The Tribunal accepted however that the Respondent was ‘socially and culturally integrated into the UK’ despite periods of homelessness and repeated criminal offending. At paragraphs 162- 174 of the decision, the Tribunal accepted that there were very significant obstacles to the Respondent’s reintegration to Ghana. Having carried out a detailed proportionality analysis, the judge accepted that the Respondent’s Article 8 claim was strong enough to reach the elevated threshold of ‘very compelling circumstances’ and allowed the appeal on human rights grounds.
7. The Secretary of State sought permission to appeal. The grounds of appeal challenged the adequacy of the First-tier Tribunal’s reasoning, and in particular asserted that the judge had failed to provide adequate reasons for finding that (i) the Respondent was socially and culturally integrated into the UK, (ii) that there would be very significant obstacles to his reintegration within Guinea, and/or (iii) that the ‘very compelling circumstances’ threshold had been reached. The grounds of appeal asserted that the judge had failed to have regard to the elevated threshold required, and/or had failed to apply full scrutiny to the evidence.
8. Permission to appeal was granted by Upper Tribunal Judge Sheridan on 12 December 2023.

The error of law hearing
9. On behalf of the Appellant, Mr Tufan began by making an oral application to adduce evidence, namely the updated PNC record of the Respondent’s convictions. I refused that application on the basis that the proper procedure was a written application under Rule 15(2A) of the Tribunal Procedure (Upper Tribunal) Rules 2008; no reason was given for not complying with that procedure. The evidence in question had in any event been in front of the First-tier Tribunal as was clear from paragraph 23 of the determination.
10. Mr Tufan then made an oral application to rely on a further ground of appeal. He submitted that as the record of the Respondent’s convictions demonstrated that he had offended in 2020, 2021, and 2022 and had been imprisoned for a further period of 32 weeks, the First-tier Tribunal’s conclusion as to the low risk of reoffending had been wrong. As Mr Lester pointed out on behalf of the Respondent, the application to rely on a new ground of appeal was made orally at the error of law hearing, with no prior indication to the Respondent or his representatives. It was not clearly formulated and the Respondent had not had an opportunity to respond to it.
11. If the appellant in a statutory appeal before the Upper Tribunal wishes to amend the grounds set out in her application for permission to appeal, then the appropriate procedure is via a formal written application for an order permitting amendment under Rule 5(3) of the Tribunal Procedure Rules. It is not appropriate, nor in accordance with parties’ duty under Rule 2 to assist the Tribunal to further the overriding objective, for an application to amend grounds to be made orally at an error of law hearing more than 15 months after permission to appeal was granted, and without notice to the respondent to the appeal. In the event, I have considered the new ground of appeal as part of the decision. For the reasons given below I do not consider that there is any merit in it.
12. In relation to the grounds of appeal on which permission had been granted, Mr Tufan focused his submissions on the First-tier Tribunal’s findings as to the statutory exceptions in s117C(4) and (5) Nationality, Immigration and Asylum Act 2002. He submitted that s117C(6) imposed a very high threshold which was not met in this case; the Tribunal had failed to consider all of the relevant circumstances and the judge’s reasoning was inadequate. In particular, the judge had not given proper reasons for finding that the Respondent was culturally and socially integrated into the UK and that finding was irrational given the guidance in CI (Nigeria) v SSHD [2019] EWCA Civ 2027 and Binbuga v SSHD [2019] EWCA Civ 551. The judge had referred to the Respondent’s medical evidence but a medical case could not succeed under Article 8 where an Article 3 case would fail. The judge’s finding at §212 that the Respondent posed a low risk of reoffending and a low risk of serious harm if he did reoffend was wrong. His findings as to the Respondent’s situation on return were based materially on the expert report of Dr Kenny, which the judge had rejected earlier in the determination.
13. On behalf of the Respondent, Mr Lester addressed the grounds of appeal. He submitted that the First-tier Tribunal’s decision had to be considered as a whole; as the Upper Tribunal judge had observed when granting permission, the decision was very well reasoned and was obviously thorough and considered. The judge had taken a significant number of different factors into account in his overall Article 8 assessment. He had applied the correct tests and had expressly directed himself by reference to HA (Iraq) v SSHD [2022] UKSC 22 at §140 and CI (Nigeria) at §153 of the decision. He had relied on the expert report of Lisa Davies which had addressed the Respondent’s risk of reoffending; that report at paragraph 1.2 included the Respondent’s post-2016 offending. The Appellant’s appeal was directed to the adequacy of the First-tier Tribunal’s reasoning, but the reasoning was very thorough and clear. The judge had not rejected Dr Kenny’s report in its entirety, but had properly rejected the parts of it which contained inappropriate advocacy as to the Respondent’s individual circumstances. That did not negate the report as a whole, nor mean that the judge could not consider the parts of Dr Kenny’s report which were based on objective evidence about the country situation. There was no material error of law in the decision.
Discussion and decision
14. The Appellant’s appeal challenges the adequacy of the First-tier Tribunal’s reasons, with particular focus on three issues: (i) whether the Respondent was culturally and socially integrated in the UK; (ii) whether there would be very significant obstacles to his reintegration in Guinea; and (iii) whether there were in the Appellant’s case very compelling circumstances.
15. It is trite that the Tribunal is required to give adequate reasons for its decision. The judge is required to address and resolve conflicts in the evidence, and give reasons which are sufficient to enable the parties to understand how the decision has been reached. The Tribunal is not however required to set out every step in its reasoning, nor to refer in detail to each piece of evidence or authority cited: R(Jones) v First-tier Tribunal (Social Entitlement Chamber) [2013] UKSC 19. On appeal, the Upper Tribunal should not ‘pick over’ a first instance determination or subject it to detailed textual analysis, and caution is required before concluding that the First-tier Tribunal judge has misdirected himself or failed to take a point into account: HA (Iraq) v SSHD [2022] UKSC 22, 1 WLR 3784 at §72. Where the criticism is that the judge failed to give the evidence a balanced consideration, this court must be particularly cautious in its approach: Volpi & Anor v Volpi [2022] EWCA Civ 464 at §2.
16. The First-tier Tribunal’s decision in this appeal is on any view a very well-structured, detailed and extensive determination, running to 214 paragraphs over 29 pages. It is important to note that the Appellant does not challenge most of the factual findings made by the Tribunal. In particular there is no challenge to the judge’s findings (§98-101) that the Respondent had been arrested, detained and tortured by the Guinean authorities following his attendance at a demonstration; that he had scarring as a result; or that his father was killed in February 2007, following which the Respondent fled to the UK where he was granted discretionary leave to remain as an unaccompanied child. There is no challenge to the judge’s finding (§207) that the Respondent has serious and significant mental health conditions, namely depressive disorder, generalised anxiety disorder and suicidal ideation with symptoms of post-traumatic stress disorder. Nor is there any challenge to the judge’s reliance on the country expert report of Dr Birchall, the psychiatric report by Dr Galappathie, or the psychologist’s report by Ms Lisa Davies.
17. As part of its consideration of the Respondent’s asylum claim, the First-tier Tribunal considered (§§104-117) an expert report by Dr Erin Kenny. The judge noted (§105) that Dr Kenny appeared, in the final parts of her report, to advocate for the Respondent. As the judge made clear, the advocacy in Dr Kenny’s conclusions was entirely inappropriate given her duties as an independent expert. At §109, the judge commented:
“I do not dismiss all of her report but I approach it with extreme caution given her overt advocacy for the Appellant”
The judge went on to consider Dr Kenny’s views as to the risk of persecution based on his political beliefs and his perceived association with his late father and concluded that Dr Kenny’s report did not show that the Respondent would be at risk on return to Guinea. Having considered the evidence as a whole, the judge dismissed the asylum and humanitarian protection claims.
18. He then went on to consider Article 8 ECHR. The judge set out the relevant parts of s117A-D Nationality, Immigration and Asylum Act 2002 and correctly directed himself that the Respondent had to demonstrate that he met either the family or private life exceptions in s117C NIAA 2002 or that there were very compelling circumstances over and above those exceptions. He expressly directed himself as to the “high and elevated threshold” required and referred to HA (Iraq) v SSHD[2022] UKSC 22. He then considered the family and private life exceptions in s117C(5) and (4) in turn.
Cultural and social integration
19. There is no challenge to the judge’s conclusion (§150) that the Respondent could not meet the family life exception to deportation; the Appellant’s challenge is only to the judge’s conclusions in relation to Article 8 private life under ss117C(4) and (6) NIAA 2002.
20. Although the Appellant accepted before the First-tier Tribunal that the Respondent had a private life in the UK engaging Article 8, it was conceded on his behalf at the hearing that he could not meet the private life exception because he had not been lawfully resident in the UK for most of his life. The judge correctly directed himself that the other two limbs of the private life exception were however relevant to whether the Respondent could demonstrate that he met the ‘very compelling circumstances’ test in s117C(6) NIAA 2002.
21. The judge concluded (§§153-161) that the Respondent was socially and culturally integrated into the UK. The Appellant takes issue with that finding on the basis (as put in the grounds of appeal) that “there was no evidence” that the Respondent was ever integrated in the UK to begin with, the judge did not consider whether his integration had been broken by his offending and there was no mention of remorse or attempts at rehabilitation in the determination. Mr Tufan went further in his oral submissions, and asserted that the judge’s conclusion that the Respondent was integrated in the UK was irrational.
22. The Appellant’s grounds of appeal asserted that the judge misdirected himself by failing to apply CI (Nigeria) v SSHD [2019] EWCA Civ 2027 at §62. However, I do not accept the Appellant’s suggestion that paragraph 62 of CI (Nigeria), or the similar guidance in Binbuga v SSHD [2019] EWCA Civ 551, are to be read as mandating a particular outcome or requiring a particular weight to be given to offending behaviour when considering integration. What is required, as the Court of Appeal made clear in CI (Nigeria) at §§57-62, is a multi-factorial assessment of integration which includes consideration in particular of the length of an individual’s residence in the UK and the totality of his social and cultural ties, as well as the nature and extent of his offending and periods of imprisonment. Such an assessment is necessarily always sensitive to the facts and evidence before the first instance judge.
23. The judge expressly directed himself by reference to CI (Nigeria). He considered a number of relevant factors, including that the Respondent had arrived in the UK as an unaccompanied minor in 2007 and had resided in the UK ever since; had been educated in the UK and undertaken employment; had received social services support as a minor and medical support; and had had a long-term, albeit on-and-off, relationship with his girlfriend and her family. The judge was aware of the Respondent’s offending, having cited it at §23 of the decision; he recognised (§160) and accepted the Appellant’s submission that the Respondent’s adult life had been ‘chequered’ and had involved periods of homelessness and repeated offending. The conclusion (§161) that despite his offending the Respondent was socially and culturally integrated into the UK was one which was open to the judge on the evidence. His consideration of the various factors was clearly and adequately reasoned and Ganapathy consistent with the guidance in CI (Nigeria) and Binbuga. There was no error of law in his reasoning or conclusion.
Very significant obstacles to reintegration
24. The judge went on to consider (at §§162-174) whether there were very significant obstacles to the Respondent’s reintegration to life in Guinea.
25. The judge recognised (§166) that the Respondent had been born and brought up in Guinea until he was around 16 years old and had been sent to a private school there; he would therefore have awareness of life in Guinea. The judge found that the Respondent would be returning without family support, as he was an only child, his father had been killed and he had lost contact with his mother who was in Mali. There is no challenge to those findings.
26. The judge then revisited the reports of Dr Birchall and Dr Kenny. At §§165 and 169-172 he cited Dr Kenny’s report, which included evidence on patrilineal kinship structures in Guinea and the difficulty of establishing links with an extended kin group. The judge then directed himself by reference to Kamara v SSHD [2016] EWCA Civ 813 and the ‘broad evaluative judgment’ required and found that the Respondent would not be enough of an insider in Guinea to be accepted there and be able to operate on a day to day basis.
27. Given his comments on Dr Kenny’s report earlier in the decision, the judge’s reliance on her report in relation to the question of whether there would be very significant obstacles to reintegration was the primary basis for the grant of permission to appeal and caused me some concern. However, having considered both the passages at §§104-117 and at §§165-172 of the decision, I do not consider that there was any error in the judge doing so. The judge made it clear that it was Dr Kenny’s inappropriate advocacy in relation to the Respondent’s asylum case which led him to place little reliance on her views as to the risk of persecution. However, he also made it clear that he was not rejecting the report in its entirety, and the passages of the report he relied on in considering the separate question of whether there were very significant obstacles to reintegration consisted of objective factual information, supported by external sources, which were consistent with Dr Kenny’s duties and instructions as an expert. I also note that the judge did not rely solely on Dr Kenny’s report, but also on the other country report by Dr Birchall, which was to the same effect. I do not consider that the judge erred in relying on Dr Kenny’s report when considering the issue of whether there were very significant obstacles to reintegration.
28. I do not accept the Appellant’s assertion that the judge’s conclusion on the issue of very significant obstacles was inadequately reasoned. The judge correctly directed himself by reference to Kamara; it is clear from his reasoning that he considered that the obstacles to the Respondent’s reintegration in Guinea, given the length of time he had been absent and the lack of any family support in a society reliant on kinship structures, went beyond mere hardship or difficulty. The judge did not make reference to the Respondent’s mental illness or the stigma attached to mental illness in Guinea in relation to the issue of reintegration, but given his unchallenged factual findings at §§207-208 of the decision I consider that those aspects of the evidence would in any event provide further support for his conclusion.
29. Although the Appellant relies on Bossade (ss117A-D – interrelationship with Rules) [2015] UKUT 00415 and AS v SSHD [2017] EWCA Civ 1284 as indicating that the judge’s conclusion was wrong, it is clear from those cases and from Kamara that the broad evaluation required is sensitive to the facts and circumstances of the individual case. The judge’s conclusion was one which was open to him on the evidence and on the basis of his (unchallenged) findings of fact as to the Respondent’s individual circumstances on return. There was no error of law in his approach.
Very compelling circumstances
30. The Appellant’s grounds of appeal asserted that the First-tier Tribunal had failed to provide adequate reasons for its conclusion that there were very compelling circumstances in the Respondent’s case over and above the family and private life exceptions.
31. In oral submissions Mr Tufan also took particular issue with the judge’s finding (§212) that the Respondent posed a low risk of reoffending and serious harm, which he described as irrational. The judge relied on the report of Ms Lisa Davies, a consultant forensic psychologist, and gave detailed consideration to her report at §§63-69 of the decision. Although the Appellant now takes issue with Ms Davies’ views, there does not appear to have been any challenge to her qualifications, expertise or suitability as an expert at the hearing. Her report was based on a review of the Respondent’s prison records together with other documents and a lengthy assessment of the Respondent using structured assessment tools. Her clear view was that the Respondent presented with a low risk of reoffending and a low risk of causing serious harm if he were to reoffend. I reject Mr Tufan’s submission that Ms Davies’ conclusions were themselves irrational and I consider that it was entirely open to the judge to rely on her report both in relation to the Respondent’s mental health and his risk of reoffending. There was nothing irrational in the judge’s finding, on the evidence before him, that the risk posed by the Respondent was low.
32. The judge considered whether there were very compelling circumstances over and above the family and private life exceptions at §§175-214 of the decision. He expressly reminded himself (§175, §205) that ‘very compelling circumstances’ imposed a high and elevated threshold which must be over and above the private and family life exceptions. He reminded himself at §187-188 and §201 of the seriousness of the Respondent’s offending and noted the sentencing judge’s remarks. He set out the factors both in the Respondent’s favour and in the public interest, and gave detailed consideration to balancing the competing interests (§201-214). His conclusion that the elevated ‘very compelling circumstances’ threshold was met was one based on his unchallenged findings of fact and I consider was open to him on the facts and evidence before him.
Conclusion
33. The Appellant’s challenge to the adequacy of the First-tier Tribunal’s reasoning is not in my view sustainable. The judge’s reasoning was clear, structured and detailed; he gave balanced consideration to the evidence and directed himself correctly by reference to applicable legislation and authorities. His conclusions were open to him on the evidence and given his unchallenged findings of fact.
34. There was no error of law in the First-tier Tribunal’s decision.

Notice of Decision
The decision of the First-tier Tribunal did not involve an error of law. The Secretary of State’s appeal is dismissed.

L Hirst
Judge of the Upper Tribunal
Immigration and Asylum Chamber
28 April 2025