Tribunal decisions

The decision

IN THE UPPER TRIBUNAL
IMMIGRATION AND ASYLUM CHAMBER
Case No: UI-2023-005193
& UI-2023-005526

First-tier Tribunal No: HU/07364/2020

THE IMMIGRATION ACTS

Decision & Reasons Issued:
On 17th of June 2025

Before

UPPER TRIBUNAL JUDGE PINDER

Between

A A
(ANONYMITY ORDER MADE)
Appellant
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: Ms J Heybroek, Counsel instructed by Kamran & Co Solicitors.
For the Respondent: Ms A Everett, Senior Presenting Officer.

Heard at Field House on 7 April 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 Appellant appeals the decision of the First-tier Tribunal (‘the FtT’). On 9th November 2023, the FtT dismissed the Appellant’s appeal against the Respondent’s decision of 9th September 2020 refusing the Appellant’s human rights claim. The Respondent issued a decision on 24th April 2020 to deport the Appellant from the UK.
2. This is not the first set of proceedings in this Tribunal. The Appellant’s initial appeal against the Respondent’s decision of 9th September 2020 was allowed by the FtT on 22nd August 2022. I will refer to that decision as the FtT 2022 decision.
3. Following a successful appeal lodged by the Respondent, the Upper Tribunal decided on 6th July 2023 to set aside the FtT’s 2022 decision and remitted the appeal back to the FtT for re-making. As I have summarised below, this was subject to a number of findings from the FtT’s 2022 decision being preserved by the Upper Tribunal. Following this remittal, the appeal came back before the FtT, which heard the appeal on 14th September 2023, resulting in the subject of these proceedings: the FtT’s decision of 9th November 2023. I will refer to this decision as the FtT’s 2023 decision.
4. I have also decided to make an Anonymity Order in favour of the Appellant. After hearing and considering brief submissions from both parties on this pre-liminary issue, I determined that the specific facts of this appeal justify derogation from the principle of open justice. In particular, the Appellant’s children are of an age (14 and 10 years old) that they can easily access the internet and there are real and justified concerns that identifying the Appellant in any publication or reporting of this decision is likely to be accessed by the Appellant’s children and those close to the family, thereby likely to cause harm to the Appellant’s children, who are vulnerable for a number of reasons.
Factual and Procedural Background
5. The Appellant is a citizen of Pakistan, who is 56 years old and who entered the UK in 2007 as a visitor. Subsequent applications for leave to remain submitted to the Respondent were refused and on 16th July 2019, the Appellant was notified of his liability for removal.
6. On 25th February 2020, the Appellant was convicted of possession of false identity documents and he was sentenced to two years and four months imprisonment. Following this conviction, the Respondent issued the Appellant with the relevant decisions as summarised above.
7. The Appellant does not have any other criminal convictions. The Appellant is otherwise married and has two children with his wife, aged 14 and 10 years old. Much of the focus of these proceedings, as well as those at first instance (including in 2022), concerns whether the Appellant meets one of the exceptions contained in s.117C(5) of the Nationality, Immigration and Asylum Act 2002, also referred to as ‘Exception 2’. In particular, whether it is ‘unduly harsh’ for the Appellant’s children to either accompany the Appellant on his deportation from the UK or for them to remain in the UK without the Appellant. The Appellant’s wife is not settled in the UK and so the Appellant cannot qualify under the other limb of Exception 2 concerning a genuine and subsisting relationship with a ‘qualifying partner’.
The decision of the First-tier Tribunal under challenge
8. Before the Judge, the parties were agreed that Article 8(1) of the ECHR is engaged and that the Appellant has a genuine and subsisting relationship with his (qualifying) children. It was also agreed that s.117C of the 2002 Act applies in light of the Appellant’s criminal conviction, which together with his immigration history was not in dispute. In addition, it was agreed that the Appellant cannot meet the private life exception (Exception 1), contained in s.117C(4) of the 2002 Act.
9. The Judge recorded at [11] the findings that had been preserved by the Upper Tribunal in the earlier set of proceedings from the FtT’s 2022 decision as follows:
“a. §53: the effect of the appellant’s removal on the elder child would be unduly harsh if they remained in the UK without the appellant (‘stay scenario’);
b. §48: the restrictions on the ability to access proper mental health care and the disadvantage the elder child would have at school in Pakistan, (§47).
c. §55: the evidence in the experts’ reports that the appellant provides a significant amount of support for his wife.”
10. The Judge identified at [12], with the parties’ agreement, the remaining issues in dispute to be determined as follows:
“a. Family life exception: whether it would be unduly harsh for the appellant’s children to relocate to Pakistan with the appellant (‘go scenario’); and
b. Article 8 ECHR, very compelling circumstances over and above the exceptions in section 117C NIAA 2002.”
11. In dismissing the appeal and in so far as is relevant to this onward appeal, the FtT’s findings of fact and conclusions include the following:
(i) The Judge considered the previous expert reports filed in the 2022 FtT proceedings and he adopted the preserved findings, which he had summarised at [11] (also listed at para 9 above). The Judge noted that the FtT had also recorded in 2022 that none of this evidence had been challenged – [26];

(ii) It has now been over a year since the FtT’s 2022 decision, with the oral evidence, at the very least, indicating an improvement in the mental health of the Appellant’s elder child – [27];

(iii) Following a summary at [29] of the three updating expert reports (psychologist, psychiatrist and cognitive behavioural therapist) concerning primarily the Appellant’s eldest child, the Judge confirmed at [30] that he would treat the experts’ opinions “with some caution”. The Judge also added the following:

“I note the witness evidence before me, which remained consistent and credible, was that the appellant’s child’s health had improved since the appellant was released and rejoined the family; he was currently not receiving any treatment for his conditions, whether medication or counselling, for the past 1 ½ to 2 years; and I note neither the GP records nor CAMHS report had been provided to the authors of those reports or indeed to this tribunal. I do not consider the reports to be supported either by any evidence from the schools, I was told that said elder child, was very much engaged and happy at school, with no measures in place that would be expected in terms of the opinions given by the experts.”

(iv) The Appellant’s wife suffers from depression for which she is taking Sertraline. In addition, she continues to engage in psychological therapies for chronic low mood, high levels of anxiety, symptoms suggestive of PTSD and difficulties relating to the management of her long-term health conditions. However, the Appellant has not made out on the evidence that her treatment/medication is unavailable in Pakistan. She can be supported by the Appellant, in a similar manner to that since his release from prison. The Judge did not consider that her needs reached the demanding threshold of ‘unduly harsh’ nor that the consequences of her conditions would affect the children so as to reach that same threshold – [31]-[32];

(v) The elder child’s past mental health issues were predominantly as a result of the separation from his father, whilst in prison. The oral evidence accepted that his health had improved, such that those symptoms witnessed during the period of separation have not manifested since, nor has he required treatment for the past 1½ to 2 years. Whilst the Judge considered that any move would have an impact on his mental health, he will have the benefit of the entire family unit to support him – [33].

(vi) The remaining points, raised with respect to impact on return, including language, social ties, and disadvantage to education, did not come close to amounting to undue harshness, even taken cumulatively – [34];

(vii) The impact on the Appellant’s younger child does not reach the threshold either – he is young and had not been similarly affected by the Appellant’s separation during imprisonment. The children’s best interests do lie in remaining with both parents in the UK, where they have built ties, are being educated and have a wider support network. However, these interests are a primary and not paramount consideration – [34];

(viii) At [36], the Judge considered the factors in favour of the Appellant’s deportation when assessing whether or not there are ‘very compelling circumstances under s.117C(6) “over and above” the Exceptions contains in s.117C(5) (‘the very compelling circumstances test’) – these included the circumstances of the Appellant’s offending, that there is inadequate evidence that the Appellant can speak English and can accommodate and maintain himself in the UK, and that little weight falls to be attached to his private life, which has been precarious and unlawful throughout. The Judge also noted that from the probation officer’s written evidence, the Appellant had engaged fully, was very keen to work and provide for his family and was assessed as low risk by the probation services. The Judge found that there was nothing to suggest that the Appellant had re-offended. He considered that the Appellant remained at a low risk of re-offending and that his remorse was genuinely held, having found him to be largely credible;

(ix) At [37], the Judge weighed the factors against the Appellant’s deportation – these included the Appellant’s family experiencing (cumulative) difficulties if they return together to Pakistan and the best interests of the children. The Judge had not found these to meet the ‘unduly harsh’ threshold and it was not made out that the Appellant’s wife’s medial needs could not be provided for in Pakistan. The Judge was also not satisfied that there would be very significant obstacles to the Appellant himself re-integrating Pakistan;

(x) The Judge concluded at [38] that the factors on the Appellant’s side did not amount to a “very strong claim indeed”, as identified at [38] of Hesham Ali v SSHD [2016] UKSC 60 as being capable of outweighing the public interest.
12. Accordingly, the FtT dismissed the Appellant’s appeal on human rights grounds.
The Appellant’s appeal to the Upper Tribunal
13. The Appellant applied for permission to appeal raising several grounds of appeal against the FtT’s decision. The FtT granted the Appellant permission to appeal but on limited grounds only. Following a renewal of the Appellant’s application, the Upper Tribunal granted permission to the Appellant on the remaining grounds.
14. The reasons for granting permission to appeal, from each of the FtT and the Upper Tribunal, can be summarised as follows:
(a) It is arguable that the Judge has erred in failing to make any assessment of and to reach conclusions on the country expert evidence before him - the Appellant’s third ground of appeal, as pleaded before the FtT, securing the limited grant of permission to appeal from the FtT;
(b) It is arguable that the hearing became procedurally unfair at the point that the Presenting Officer took a new point about the medical evidence for the first time in their submissions. Whether those difficulties arose as a result of the late application to admit this evidence is arguably immaterial to the ultimate question of whether the hearing was procedurally fair;
15. The Appellant’s remaining grounds of appeal, upon which the Upper Tribunal also granted permission to appeal, concern the Judge’s arguably flawed approach to the Appellant’s wife’s mental health as a factor to be weighed in the Judge’s assessment of whether or not the test of very compelling circumstances was met by the Appellant. This ground is also premised on an arguable error in the Judge’s approach to the preserved findings relating to the Appellant’s family’s ability to access mental health care on return to Pakistan.
16. In response, the Respondent filed and served a Rule 24 reply and Ms Heybroek, on behalf of the Appellant and in preparation for the hearing, filed and served two skeleton arguments. Together, these two skeleton arguments elaborated on the grounds of appeal pursued, replied to the matters raised by the Respondent in her Rule 24 reply, and made submissions on the re-making of the appeal should the Appellant succeed in having the FtT’s decision set aside.
17. The Appellant was also granted, as part of a previous hearing in these proceedings, permission to rely on further evidence under Rule 15(2A) of the Tribunal Procedure (Upper Tribunal) Rules 2008 (‘the Procedure Rules’). I only address this further evidence as part of the re-making of the Appellant’s appeal in the second part of my decision.
18. At the hearing, both parties’ advocates made further oral submissions on each of the grounds of appeal pursued and Ms Everett, on behalf of the Respondent, defended the FtT’s decision. I have addressed the parties’ respective written pleadings and oral submissions in the section below when setting out my analysis and conclusions. At the end of the hearing, I indicated that my decision would be to find in favour of the Appellant on the errors of law pursued and I provided brief reasons for this orally. I set out my reasons in more detail immediately below.
19. Both parties were also agreed that following my decision on the errors of law pursued, it was appropriate for the matter to be retained in the Upper Tribunal for re-making. The parties were ready to proceed to this second stage at the same hearing and I heard oral submissions from both parties as to how I should re-make and dispose of the Appellant’s appeal. At the end of those submissions, I reserved my decision on re-making and I provide this further below with reasons.
Analysis and conclusions on the errors of law pursued by the Appellant
The Appellant’s first ground of appeal – procedural unfairness
20. The complex procedural history in this matter was noted by the Upper Tribunal when granting permission to appeal to the Appellant. This includes the fact that the matter was previously remitted to the FtT by the Upper Tribunal with a number of preserved findings but also from the fact that the Respondent had not previously sought to challenge the contents of medical reports, relied upon by the Appellant in respect of his eldest son and which had been adduced in support of his appeal in 2022.
21. This was further complicated by the fact that on remittal, the Appellant was permitted to submit, on the morning of the hearing, updating medical reports on his eldest son from the same experts than in 2022. No objection to this was raised at the time by the Respondent, whose advocate was provided with some time to consider the reports before the hearing formally started – this was noted by the Judge at [8]. The Respondent then made a number of submissions, orally after the oral evidence had been taken, contesting for the first time matters reported upon in those reports.
22. Through his first ground of appeal, the Appellant argues that this was procedurally unfair and as a result, the Judge materially erred in how he approached the medical evidence. Ms Heybroek submitted that, pursuant to HA (expert evidence; mental health) Sri Lanka [2022] UKUT 111 (IAC), the Respondent’s Presenting Officer at first instance ought not to have been permitted to contest the medical reports without having given notice of this to the Appellant. Specifically, para 165 of HA (Sri Lanka) was relied upon:
“If the Secretary of State does not agree the contents of the expert report, she should promptly inform the appellant and the Tribunal. In such an event, the appellant will need to make arrangements for the expert to give oral evidence and be cross-examined by the Secretary of State's representative. The availability of technology to facilitate the giving of expert evidence by video should enable even busy professionals, such as consultant psychiatrists, to give evidence from their offices, without significantly delaying the holding of the hearing.”
23. To the extent that the Appellant argued in writing that the Respondent should not have been permitted to change her position with regards to the medical evidence submitted previously (in not contesting it), I accept Ms Everett’s submission: flowing from the Appellant’s adducing further and updating medical evidence, the Respondent was entitled to consider this afresh and to take a different position in response to this. There is also some force in the Respondent’s submission that the Appellant could have applied for an adjournment upon being notified through the Respondent’s submissions that the Respondent did not accept matters reported on by each of those expects – the Appellant did not do so.
24. As I have referred to above, the procedural history in this matter was complex: the Respondent’s position in the 2022 FtT appeal did not include a challenge to the diagnosis and prognosis of each expert on the Appellant’s eldest son. Nor did the Respondent seek to challenge the FtT’s findings in the 2022 appeal on this issue when the Respondent appealed that determination to the Upper Tribunal. In this specific context, I am satisfied that there was procedural unfairness in the Respondent seeking to dispute certain matters in those reports and not notifying the Appellant of the same until her oral submissions before the Judge. In permitting the Respondent to do so without considering whether this caused the Appellant procedural unfairness, does in my judgment amount to a material error of law.
25. As can be seen from my summary of the Judge’s consideration of the updating medical evidence at para 11(iii) above, the Judge was critical of this. With there not having been any dispute to the medical evidence previously despite lengthy proceedings in the FtT and the Upper Tribunal, the Appellant should have been afforded an opportunity to address the concerns raised against the medical evidence by the Respondent, which the Judge ultimately agreed with. As was considered by the Upper Tribunal in HA at para 165, the Appellant could have made arrangements to obtain addendum reports, put written questions to the relevant expert(s) and/or make arrangements for the expert(s) to be called to give oral evidence and be cross-examined by the Respondent.
26. I am satisfied for the reasons above that there was procedural unfairness to the Appellant at the appeal hearing before the Judge. Whilst this was compounded by the short notice provided to the Respondent by the Appellant of the updating expert reports, the Respondent did not object to those reports being admitted and these were duly admitted by the Judge. This ought not however to have absolved the Respondent from giving notice of any contentious issue raised by those reports. In the context of these proceedings, with the mental health of the Appellant’s eldest child being at the forefront of the Appellant’s claim as well as the previous determinations of the Appellant’s appeal in 2022 and the subsequent appeal in the Upper Tribunal in 2023, the Judge’s conduct of this issue has in my view led to procedural unfairness.
The Appellant’s second ground of appeal – preserved findings in relation to availability of mental health-care in Pakistan for the Appellant’s eldest child
27. I also consider that there is significant force in the Appellant’s further arguments under this ground of appeal. The Respondent had not disputed the experts’ expertise. Whilst the Judge noted the improvements in the eldest child’s mental health since the Appellant had been released from prison, it is not clear from the decision that the Judge rejected the experts’ diagnosis of the eldest son’s conditions.
28. On this basis, I am satisfied that the Judge failed to take into consideration relevant matters, namely the preserved finding relating to the difficulties in availability of and access to mental health facilities in Pakistan for children, further compounded by social stigma and taboo surrounding mental ill-health in Pakistan. The conclusion on this issue at [48] of the FtT’s 2022 – that there was a real risk that the Appellant and his wife would not be able to access the mental health care that is required to maintain their eldest child’s stability and development - was preserved at [17] of the Upper Tribunal’s 2023 decision. Whilst the Judge found that the eldest child’s mental health had significantly improved, I am satisfied that the Judge failed to consider whether or not the eldest child would be able to access the medical support that he may require in the event of a deterioration.
29. This flows from the experts’ opinion that accompanying his father to Pakistan would have an adverse impact on the eldest child’s mental health, which the Judge appeared to accept at [33]. In that same passage, the Judge found that whilst any move would have an impact on his mental health, he would have the benefit of the entire family unit to support him. There is no consideration of the preserved finding as referred to above. I am satisfied therefore that the above amounts to a material error of law considering the centrality of the eldest child’s mental health and the relevance of the same to whether or not the Appellant meets Exception 2 under s.117C(5) of the 2002 Act.
The Appellant’s third ground of appeal – failure to consider country expert evidence
30. The Appellant had submitted at first instance and relied upon a report from country expert Asad Ali Khan. This report was relevant to both the provision of health-care for the Appellant’s eldest son and the Appellant’s wife, and the cultural and social stigma in Pakistan surrounding mental health difficulties. The country expert had been asked the following questions:
• “Given (the wife’s) extensive medical conditions, could she receive adequate level of treatment in Pakistan as she does in the UK?”
• “Could (the eldest child) and (the wife) receive adequate help and support to the level they require should they be living with (the Appellant in Pakistan)?”
31. It is helpful to extract the expert’s conclusion as to the first question as this is relatively brief:
“30. (The wife) will face routine ostracism in daily life in Pakistan owing to her mental health problems such as depression and anxiety and as I have explained at length above healthcare for her will cost a lot and she will not be able to afford it. Overall, her predicament will be such that she will not be able to integrate in Pakistan at all and will face rejection and her mental health issues will only exacerbate her problems in that regard. She will be rejected by society and she will be ostracised in Pakistan. I would emphasise that the health care system of Pakistan is confronted with problems of inequity, scarce resources and is further plagued by inefficiency and structural mismanagement. It is my professional view that she will not be able to get the care in Pakistan she is currently receiving in the UK for her mental illness and other medical problems such as thrombosis.”
32. There is no express reference to the country expert report of Mr Khan in the Judge’s decision nor to the issues raised and pleaded on behalf of the Appellant in relation to stigma and ostracization. At [31], and as summarised above at para 11(iv), the Judge noted the evidence documenting the wife’s mental ill-health and her complex needs as a consequence but found that the Appellant had not shown that treatment/medication would not be available in Pakistan nor that this meant the ‘unduly harsh’ test was met.
33. Ms Everett agreed that the Judge had not referred to the country expert report explicitly but submitted that the Judge’s findings at [31]-[32] were not contradicted by any of that evidence. Considering the contents of the expert report, as illustrated by the extract above, it was incumbent on the Judge to give reasons as to why he reached the conclusions that he did at [32], which he also took forward in his assessment of the ‘very compelling circumstances’ test at [37]. I do not accept Ms Everett’s submission that the country expert did not contradict the Judge’s conclusions – there were matters, as summarised above, addressed by the country expert that supported a different conclusion. I am satisfied therefore that either the Judge has failed to take into consideration relevant evidence, in the form of the country expert report, which was very clearly relied upon before him, or he has failed to give reasons for rejecting the expert’s conclusions and for reaching his conclusions at [32].
34. I am mindful that it is not necessary for a judge to expressly refer to each piece of evidence and/or to set out each step of their reasoning. I am satisfied however that the Judge has materially erred for the reasons that I have set out above given again the centrality of these issues and evidence to the matters that the Judge was required to determine. The Judge was solely concerned with whether or not it was unduly harsh for the Appellant’s children to accompany the Appellant when deported to Pakistan, and failing that, whether there were very compelling circumstances over and above applicable exceptions capable of outweighing the public interest in the Appellant’s deportation. The ability of the Appellant’s wife to function in Pakistan is clearly relevant to both tests.
35. For all of the reasons above, I am satisfied that the Judge has materially erred in law and the FtT’s decision to dismiss the appeal is therefore set aside pursuant to s.12(2)(a) of the Tribunals, Courts and Enforcement Act 2007.
36. As referred to at para 19, I was able to indicate the above to both parties at the conclusion of the first stage of the hearing. Both parties also agreed that thereafter it was appropriate for the appeal to be retained in the Upper Tribunal pursuant to the guidance in para 7 of the Senior President's Practice Statement as well as the guidance in AEB v Secretary of State for the Home Department [2022] EWCA Civ 1512 and Begum (Remaking or remittal) [2023] UKUT 46 (IAC). Both parties were also ready to address me at the same hearing on how the appeal should be re-made and be disposed of. I duly heard oral submissions from both advocates each in turn and I reserved my decision on the re-making thereafter. I provide this below with my reasons.
Re-making of the Appellant’s appeal against the decision of the Respondent dated 9th September 2020 to refuse his human rights claim
37. In reaching my findings and conclusions below, I confirm that I have considered all of the evidence admitted into these proceedings as well as the parties’ respective written submissions in preparation for the re-making of this appeal. I note briefly that the Respondent criticised the Appellant at para 5 of her Rule 24 response (dated 17th January 2025) for the drafting of the skeleton argument and made various other observations critical of the Appellant’s conduct of the litigation and of his parenting of his eldest child. Ms Everett, who was not the author of this document, raised at the outset of her submissions that the criticisms at para 5 were inappropriate, particularly in circumstances whereby the author had not acknowledged difficulties caused earlier on in the proceedings by the Respondent not having complied with previous directions. Ms Everett also confirmed that certain terms and observations used elsewhere in the Rule 24 reply were not helpful or constructive. I am grateful to Ms Everett for her fair and candid reflection in this respect.
38. Ms Everett was also able to clarify that no issue was taken by the Respondent with the expertise of Dr Nuwan Galappathie, Consultant Forensic Psychiatrist. The Respondent takes issue with specific aspects of the reports adduced in this matter for the reasons given in the Respondent’s Rule 24 reply and which are specific to this case. I have considered and addressed these below.
39. As the Appellant has been sentenced to a period of imprisonment of at least 12 months, but less than four years, the public interest requires his deportation unless either of the exceptions within s.117C of the 2002 Act applies, or in the alternative, if there are very compelling circumstances outweighing that public interest over and above the exceptions and in accordance with s.117C(6).
Relevant legal framework
40. In conducting the ‘unduly harsh’ assessment that applies is Exception 2, it is well established that the focus is on the position of the children only, i.e. no account is to be taken of the seriousness of the particular offence(s) or of the particular criminal history of the children’s parent, namely the Appellant - KO (Nigeria) & Ors v Secretary of State for the Home Department [2018] UKSC 53, [32], [36]. This was found by the Supreme Court in KO (Nigeria) to be consistent with the principle that the child should not be held responsible for the conduct of the parent as considered previously in Zoumbas v Secretary of State for the Home Department [2013] UKSC 74, [2013] 1 WLR 3690, [10] per Lord Hodge.
41. The Supreme Court in KO (Nigeria) also endorsed at [27] the guidance given by the Upper Tribunal on how to interpret and apply the ‘unduly harsh’ test:
27. Authoritative guidance as to the meaning of “unduly harsh” in this context was given by the Upper Tribunal (McCloskey J President and UT Judge Perkins) in MK (Sierra Leone) v Secretary of State for the Home Department [2015] UKUT 223 (IAC), [2015] INLR 563, para 46, a decision given on 15 April 2015. They referred to the “evaluative assessment” required of the tribunal:

“By way of self-direction, we are mindful 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.”
42. In addition to the cases cited immediately above, the relevant case law that I have considered also includes HA (Iraq) v SSHD [2022] UKSC 22, NA (Pakistan) v SSHD & ors [2016] EWCA Civ 662, and more recently Sicwebu v Secretary of State for the Home Department [2023] EWCA Civ 550.
43. The ‘unduly harsh’ test is a self-contained exercise. It is not permissible therefore for a judge to consider public interest considerations, the seriousness of the Appellant’s offending and or the length of his sentence when assessing whether the impact on relevant children is unduly harsh in the context of s117C(5). The assessment of unduly harsh is confined to the consideration of the impact of deportation on the children.
44. It is important not to lose sight of the fact that the hurdle of ‘unduly harsh’ is not as high as that set by the test of ‘very compelling circumstances’ in s.117C(6). A judge’s starting point is that the deportation of foreign criminals is in the public interest and the more serious the offence the greater the public interest in deportation.
45. An appellant can rely on features of their case in Exception 2 and those factors may, together with other factors, constitute ‘very compelling circumstances’. There is no exceptionality requirement but cases in which circumstances are sufficiently compelling to outweigh the high public interest in deportation are likely to be rare. The ‘very compelling circumstances’ imports a very high threshold and compelling means circumstances which have a powerful, irresistible and convincing effect.
46. The public interest is not fixed and there is a high level of importance attached by Parliament to the deportation of foreign criminals. This can only be outweighed by ‘very compelling circumstances’ in the case of an offender, who does not satisfy the ‘unduly harsh’ test. In such cases, rehabilitation is in general likely to be of little or no material weight, but if there is evidence of positive rehabilitation it may have a bearing on whether deportation is necessary to protect the public.
s.117C(5) of the 2002 Act and the ‘unduly harsh’ test
47. Thus, I first turn to assess whether or not the effect of the Appellant’s deportation would be unduly harsh on his children, pursuant to s.117C(5) of the 2002 Act.
48. It has never been in dispute that the Appellant has a genuine and subsisting parental relationship with each of his children. Indeed, as a result of his wife’s health difficulties, the evidence in these proceedings supports the Appellant’s claim that he provides the large majority of their primary care.
49. Neither has it been in dispute that each child is a ‘qualifying child’. The definition of ‘qualifying child’s is contained in s.117D(1) and provides as follows:
“qualifying child” means a person who is under the age of 18 and who—
(a) is a British citizen, or
(b) has lived in the United Kingdom for a continuous period of seven years or more; (…)
50. The Appellant’s eldest child is British and his youngest child was born in the UK in 2014, residing here ever since, i.e. for more than seven years. The Appellant’s youngest child was also granted limited leave to remain in 2022 together with his mother, the Appellant’s wife.
51. The preserved findings from the FtT 2022 decision mean that the only aspect of the relevant test of ‘unduly harsh’ that falls to be determined in this appeal concerns whether or not it would be unduly harsh for the Appellant’s children to relocate to Pakistan with the Appellant. This is often referred to as the ‘go scenario’. The Respondent did not seek to argue otherwise before me.
52. It is first relevant to note that the Respondent had already determined in 2022 that it would be a breach of the Article 8 rights of the Appellant’s wife’s and the Appellant’s youngest son to leave the UK when she granted each of them a period of leave to remain valid until 2024. Similarly, it is noteworthy that she did so after her decision in the Appellant’s case taken on 9th September 2020 refusing his submissions in respect of his human rights claim, submitted pursuant to the Respondent’s notification of a decision to deport him issued on 24th April 2020.
53. However, in light of the Respondent’s position before me, I do not limit my assessment in respect of the children to their mother’s and the youngest child’s earlier grant of leave to remain.
54. As was the case at first instance, the focus of these proceedings has very much been on the Appellant’s eldest child. A considerable number of expert reports have been commissioned on his behalf and relied upon within these proceedings. A further set of updating reports, as well as the eldest child’s medical records, were also obtained by the Appellant in preparation of the re-making of this appeal and were admitted into evidence at an earlier case-management hearing in this Tribunal under Rule 15(2A) of the Procedure Rules.
55. The updating medical evidence relied upon can be summarised as follows:
(a) Dr Ali, Psychologist, assessed the Appellant’s eldest child on 25th October 2024 and provided an addendum report on 2nd November 2024. This assessment addressed, in summary, the child’s current state of mental health (para 9.1), whether he is a vulnerable child (para 9.2), the impact on him if he was forced to leave the UK with the family (para 9.3), whether living in Pakistan would be detrimental to his mental health (para 9.4) and whether his mental health needs could be met in Pakistan (para 9.5).

This was the second assessment conducted by Dr Ali of the Appellant’s eldest child. Dr Ali confirmed that the child is most likely vulnerable and significantly affected by his father’s potential deportation, with this exacerbating his extremely elevated levels of anxiety, depression and stress.

Dr Ali expressly commented on the child’s medical records (provided to her for the assessment together with all other relevant and necessary documents – para 3.2), which indicated a pattern of emotional distress, including feelings of loneliness and frustration, which appeared to hinder his academic performance and social interactions.

Dr Ali’s opinion is that should the child be forced to leave the UK with his family, the detrimental impact on his mental health would likely be profound. Dr Ali cited his lack of family support in Pakistan (outside of his nuclear family), speaking limited Urdu, the difficulties he would face adjusting to a different educational and cultural environment and the absence of his established support network leading to increased feelings of isolation, which could trigger self-harming behaviours.

(b) Dr Nuwan Galappathie, Psychiatrist, also assessed the Appellant for the second time on 3rd September and 24th October 2024, reporting back on 3rd November 2024. Similarly, the addendum report addressed the child’s current state of mental health (paras 52-71), whether he is vulnerable (paras 72-73), the impact on him should he be forced to leave the UK with his family (paras 74-75), whether he could live in Pakistan without this being detrimental to his mental health (paras 76-77), whether his mental health needs can be met in Pakistan (paras 78-79) and whether his mother could provide adequate care to him if she moves to Pakistan, with the support of the Appellant (paras 80-81).

The child’s medical records were also provided to Dr Galappathie for the purposes of this addendum report together with other relevant and necessary documents as noted by Dr Galappathie at para 10. Dr Galappathie confirmed at para 14 that he formed his professional opinion and conclusions on the child based on his clinical examination of him, his mental state examination, review of the case papers, GP records and not just on the history and difficulties as outlined by the child. At paras 15-18, Dr Galappathie helpfully addressed the Upper Tribunal’s criticism of one of his reports in an unreported case from 2023, which I will refer to as CE (Cameroon) (PA/01112/2020). Dr Galappathie set out how he has taken this into consideration both generally in his practice but also specifically in relation to this assessment. As I have recorded above, Ms Everett confirmed that she did not seek to dispute Dr Galappathie’s expertise nor his methodology and Dr Galappathie specifically addressed the child’s medical records and a letter from his GP at paras 25-34.

Dr Galappathie remained of the opinion that the child is suffering from a moderate episode of depression, indicated by his account of suffering from low mood and a range of depressive symptoms, including difficulty sleeping and concentrating, his objective presentation upon mental state examination, information within his GP records and results upon psychometric assessment (para 56). Dr Galappathie was also of the view that the child’s health records support his diagnosis of depression and set out his reasons for this at paras 58-60 of his addendum report.

Dr Galappathie also confirmed that the child suffers from a generalised anxiety disorder, indicated by his account of suffering from a number of anxiety related symptoms: he feels anxious and worried all the time. Dr Galappathie placed these as ‘moderate’ symptoms of anxiety (para 65), and this diagnosis was also supported in his view by the child’s medical records for the reasons given at paras 67-69 and was in keeping with Dr Ali’s assessment as noted by Dr Galappathie at para 70.

As a consequences of these diagnosis, Dr Galappathie stated that the child presents as a highly vulnerable individual (para 73). With regards to the impact on the child of him relocating to Pakistan with his family, Dr Galappathie stated at para 73 that this is likely to have a severe adverse impact on his mental health and development. Dr Galappathie noted what such a relocation would entail in light of the child never having lived in Pakistan. He is of the view that this is likely to worsen his depression and anxiety. In his opinion, being separated from his friends, teachers and country where he feels comfortable and wishes to remain, would worsen his mental health and adversely affect his psychological and emotional development.

Specifically with regards to the Appellant’s mother, Dr Galappathie expressed the view at para 81 that it is unlikely that she could provide adequate care for the child if she was moved to Pakistan and it is likely that her own depression would
worsen, impairing her concentration, memory, energy levels and leading to her having difficulty prioritising the child’s increasing mental health care needs, leading to safe-guarding concerns.

(c) The child’s medical records – the child’s GP confirmed in a letter dated 22nd October 2024 that the child was suffering from low mood for some time and reports having poor sleep and occasionally crying by himself alone, as well as poor concentration which was affecting his school studies. The GP also reiterated the child’s history of having sought support for his mental health in 2021 and that he had been referred to the “young person social prescriber team” for further mental health support.

The child’s medical records (printed on 22nd October 2024) disclose, in so far as is relevant to these proceedings, that the child has had 14 appointments in the last 12 months. Notably, on 20th December 2023, the child saw his GP complaining of feeling low and stressed, crying, that he thinks that his parents did not win the immigration case because of him. On 13th February 2024, the child was seen alone by his GP (accompanied by a chaperone from the surgery) disclosing anger issues. On 3rd July 2024, he disclosed not feeling stressed at present but on 20th August 2024, he attended disclosing that he felt angry, agitated, unhappy, sad, and that he felt under a lot of stress, and was fed up. Similar disclosures were made in an appointment on 30th September 2024 including feeling low, having poor sleep and concentration, crying and low appetite as well as worried about feeling lonely.

The records include “feeling anxious” and “feeling stressed”, as well as acne under the section headed “active problem” and “on-going”.
56. In addition to the medical evidence summarised above and the evidence previously filed with the FtT, the Appellant relied upon updating statements from himself and his wife as well as a further letter from his eldest child. By way of background or country evidence, the Appellant relied on the Respondent’s CPIN ‘Pakistan: Healthcare and medical treatment’, published in July 2024 and an article written by Ahmad, S. S. and Koncsol, S. W. in 2022 ‘Cultural Factors Influencing Mental Health Stigma: Perceptions of Mental Illness (POMI) in Pakistani Emerging Adults’. The Appellant also continued to rely on the country expert report of Asad Ali Khan, which was available at first instance and which I have cited from above in the context of my consideration of the Appellant’s third ground of appeal.
57. Addressing first the medical evidence, the Respondent’s position is that the expert reports do not support a finding that it would be unduly harsh for the eldest child to relocate to Pakistan. This is because, in the Respondent’s submissions, various relevant matters were not considered by the various experts.
58. I address these concerns each in turn in respect of each expert, first Dr Ali and then Dr Galappathie. The Respondent first submits with regards to Dr Ali’s report that she inappropriately commented on whether or not the Appellant’s son would be able to access the mental health-care that he requires in Pakistan. It is important to consider that her summary opinion at para 2.4 is that the likelihood of the eldest child’s “mental health care needs being adequately met in Pakistan seems to be extremely low due to poor access to mental health services, cultural stigma surrounding mental health issues, as well as language barriers”. These matters, as well as those addressed in brief by Dr Ali in the body of her report (sub-para 5 of para 9.1), were all the subject of preserved findings between the FtT 2022 and the Upper Tribunal 2023 decisions, and thus did not concern matters of controversy in any event – see para 9 above.
59. The Respondent also submits that Dr Ali has not acknowledged that any exacerbation to the Appellant’s son’s mental health caused by the Appellant’s immigration issues and associated stressors “would all be non-issues for the Appellant and his family after the deportation appeal is finally determined”. This is rather simplistic and does not engage with the matters that Dr Ali reported upon concerning the impact(s) on the eldest child of having to leave the UK for Pakistan. As it stands at present, the sole reason for such a departure would be his father’s deportation. I am satisfied that Dr Ali has fully assessed the Appellant’s eldest child in so far as he presented himself to her as part of the two assessments she carried out of him. She has given her opinion in so far as his mental health and his well-being is concerned, both at the time of her assessments and upon any departure from the UK, within the scope of her expertise.
60. The remaining criticisms of Dr Ali’s report amount to no more than mere disagreements, many of which are subjective and stated without expertise. The author states at para 13(c) of the Respondent’s reply that “it is far-fetched to conclude that mental health issues have had a profound impact on (the child’s) well-being”, in the context of the child’s extra-curricular activities. This is stated without any supporting evidence. The Respondent also states these are “normal experiences for any child of a parent who is facing deportation” - a submission I return to further below.
61. The Respondent also criticises Dr Ali for her purported lack of consideration of the child’s medical records. In particular, it is said that Dr Ali did not have regard to the entry from 21st August 2024, in which the child is reported as feeling better. This entry appears to be in isolation, amongst many other appointments, as I have considered above, and as was listed and considered by Dr Ali herself in her section entitled ‘notable entries’ (where the entry of 21st August 2024 is also listed). Moreover, in the context of mental health and well-being, it is commonly known that emotional and mental health states can fluctuate.
62. The Respondent submits that there is no direct evidence from the child’s school, which supports his and his parents’ disclosures to Dr Ali and other professionals that his performance at school has been negatively affected. I have considered this submission very carefully but I do not consider that a lack of evidence from the child’s school otherwise undermines or in some way contradicts Dr Ali or other professionals’ opinions. The child’s GP records are clear: the Appellant’s child has sought the support of his GP, with the assistance of his parents, on numerous occasions since 2021 when the Appellant was sent to prison. These records disclose that there is a long history of attempting to encourage the child to engage with specialist mental health services. It is also clear that the child has been reluctant to access the same - he himself has written a letter [CB.p.113] explaining what his fears are about mental health treatment.
63. The Respondent also submits that Dr Ali’s consideration of the difficulties that the Appellant’s eldest child is likely to experience on relocating to Pakistan is “fanciful” because the child would not be moving to an unfamiliar culture as a result of growing up in a household with a Pakistani background. The Appellant’s child is a British citizen, who was born in the UK and who has never lived in Pakistan. It is also consistently reported in the evidence that the eldest child does not speak Urdu fluently (his parents’ language) and he only has a basic command of this language. In this context, it cannot be said that Dr Ali’s consideration of these issues is fanciful.
64. For the reasons above, I do not accept the Respondent’s criticisms of Dr Ali’s report. I have summarised her opinions and conclusions on the Appellant’s eldest child above at para 55(a) and do not rehearse these here. I attach significant weight to this report in light of Dr Ali’s expertise, her consideration of the child’s medical records and in light of the fact that it is her second report on the Appellant’s eldest child having now seen him twice in a period of almost 12 months.
65. I now turn to the Respondent’s submissions on Dr Galappathie’s report. The same criticism is made by the Respondent of Dr Galappathie’s report that I have addressed in the context of Dr Ali’s report at para 58 above. However, the Respondent raises this criticism at para 12(a) of her reply without acknowledging that Dr Galappathie stated himself at para 77 that he is not familiar with the conditions in Pakistan. He stated as follows:
“Whilst I am not familiar with the conditions in Pakistan for children, as a UK based psychiatrist, I would anticipate his mental health would deteriorate if removed from the UK and required to live in a country where he does not want to reside. This would be likely to be detrimental for his mental heath as outlined earlier.”
The criticism that Dr Galappathie has accepted inappropriate instructions from the Appellant’s solicitors is therefore misplaced. He answered the question asked of him entirely appropriately and making it clear that he could not provide his opinions on the conditions prevalent in Pakistan.
66. Similarly, the same criticism is made of Dr Galappathie with regards to a lack of evidence from the child’s school and this not being taken into consideration by him. It is noteworthy that Dr Galappathie at paras 22 and 28 is merely recording the child’s updating information on his schooling. The expert has not taken this forward into his overarching opinions of the child.
67. The more substantial criticisms of Dr Galappathie’s report are that the expert applied “a rather questionable methodology in making findings on whether he has been malingering” (para 12(c) of reply), that his diagnosis of moderate episode of depression is unreliable because he fails to explain how this is corroborated by the Appellant’s eldest child’s recent GP records (para 12(e)) and the fact that the child has not accessed therapy nor is he prescribed medication (para 12(f)). In addition, that the expert has completed a PHQ-9 depression rating scale and a GAD-7 test for anxiety without recognising the consideration by the Upper Tribunal at [136] of HA that these tests are not diagnostic (para 12(g) and (i)).
68. The evidence that was accepted by the Upper Tribunal in HA at [136] was that “even in purely clinical settings, these tests can only provide an indication of whether someone might be suffering from a mental health problem. In medico-legal settings, (the expert) says that it is “wholly possible to provide whatever answers someone wants to in order to appear as ill, or as well, as the person wants to.””
69. Dr Galappathie has not based his diagnoses on the tests alone. He has made clear in his report that his first diagnosis “is indicated by his account of suffering from low mood and a range of depressive symptoms, his objective presentation upon mental state examination, information within his GP records and results upon psychometric assessment” (para 56 of his report). He also expressly stated that the test used “is a rating scale to help augment diagnosis” (emphasis added). Dr Galappathie recorded a similar methodology in respect of his second diagnosis of generalised anxiety disorder.
70. With regards to Dr Galappathie’s consideration of the eldest child’s medical records, the Respondent has not particularised in her reply in what way the expert is said not to have engaged properly with these medical records. Ms Everett did not elaborate on this issue at the hearing. With regards to the Respondent’s submission that Dr Galappathie’s diagnoses do not explain the fact that the child has not accessed therapy or medication in the UK, the Respondent does not offer any evidence that a diagnosis needs to be corroborated with or validated in some way by treatment. The Respondent does not explain, nor substantiate, why the absence of prescription-based medication and/or the refusals thus far of the child to access therapy, may imply either a mis-diagnosis or less severity in the diagnosis. Dr Galappathie is clear in his report that the symptoms displayed by the child are moderate and have arisen at a time when the child remains in the UK with his family unit. Dr Galappathie was asked for his prognosis should those elements of the child’s life suddenly change to a very significant extent and he has given those accordingly, as I have summarised at para 55(b) above.
71. As briefly referred to above, the Respondent was also critical of Dr Galappathie’s consideration of whether or not the Appellant’s eldest child was malingering. The Respondent states at para 12(c) of her reply as follows:
“it is unclear why the appellant’s son has been given credit for not complaining of every mental health symptom possible. The appellant’s son is a child, and Dr Galappathie has applied a rather questionable methodology in making findings on whether he has been malingering.”
72. Ms Everett did not elaborate on this submission and I note that there has not been an allegation from the Respondent that the Appellant, his eldest child or any other member of his family have been fabricating or otherwise exaggerating the concerns relating to the Appellant’s eldest child and his experiences. No other evidence or submission has been made as to how the Respondent states Dr Galappathie ought to have considered these matters and I do not therefore accept this criticism.
73. For all of the above reasons, I do not accept the Respondent’s criticisms of either Dr Ali’s and Dr Galappathie’s reports. I have found each report to be thorough, objective and within the remit of their respective expertise. I therefore attach significant weight to both of their opinions, which I accept.
74. The Respondent also submits more broadly at para 7 of her reply that “(t)he expert evidence repeatedly refers to the Appellant’s deportation case having contributed towards his child’s feelings of distress and anxiety, but these matters are the baseline of any deportation case which involves children, and it would be extraordinary to imagine there being any scenario in a deportation case where a child would not feel disappointed by the prospect of his family departing the United Kingdom.”
75. It is well established that I am to assess whether it would be unduly harsh for these children, and in particular the Appellant’s eldest child in light of his history of mental health difficulties, to accompany their father on the Appellant’s deportation to Pakistan. The Respondent’s arguments involving a ‘notional comparator’ were rejected by the Supreme Court in HA (Iraq) v SSHD [2022] UKSC 22 and most notably, Lord Hamblen stated at [37]-[38] as follows:
“37. (…) a test involving a notional comparator child is potentially inconsistent with the duty to have regard to the “best interests” of the child in question as a primary consideration in accordance with section 55 of the Borders, Citizenship and Immigration Act 2009. This requires having “a clear idea of a child’s circumstances and of what is in a child's best interests” and carrying out “a careful examination of all relevant factors when the interests of a child are involved” - see Zoumbas at para 10. The focus needs to be on the individual child, but the discounting of what are said to be the “normal” or “ordinary” effects of deportation by reference to a notional comparator child risks the court or tribunal ignoring the actual impact of deportation on the particular child in a search for features which are outside the supposed norm. As Lord Carnwath stated at para 15 of his judgment in KO (Nigeria), the presumption is that the statutory provisions are intended to be consistent with the general principles relating to the “best interests” of children.

38. (…) the notional comparator approach gives rise to the risk that a court or tribunal will apply an exceptionality threshold. Searching for particular features which take the facts of an individual child’s case outside the ordinary run of cases is Page 15 likely to mean looking for exceptional or rare cases. (…)”
76. Simler LJ considered in Sicwebu v Secretary of State for the Home Department [2023] EWCA Civ 550 at [29]:
“there is no "notional comparator" which provides the baseline against which undue harshness is to be evaluated. In this regard, the Supreme Court affirmed the approach explained by Underhill VP in this court ([2020] EWCA Civ 1176) as follows:
“56…if tribunals treat the essential question as being "is this level of harshness out of the ordinary?" they may be tempted to find that Exception 2 does not apply simply on the basis that the situation fits into some commonly-encountered pattern. That would be dangerous. How a child will be affected by a parent's deportation will depend on an almost infinitely variable range of circumstances and it is not possible to identify a baseline of "ordinariness". Simply by way of example, the degree of harshness of the impact may be affected by the child's age; by whether the parent lives with them (NB that a divorced or separated father may still have a genuine and subsisting relationship with a child who lives with the mother); by the degree of the child's emotional dependence on the parent; by the financial consequences of his deportation; by the availability of emotional and financial support from a remaining parent and other family members; by the practicability of maintaining a relationship with the deported parent; and of course by all the individual characteristics of the child.””
77. Having considered all of the relevant evidence and the parties’ competing submissions, my task does not involve an assessment by reference to the impact that can ordinarily be expected from the deportation of a parent because this risks my ignoring the actual impact of deportation on the particular child/children. What is required of me is an appropriate focus on the specific factors in the particular case that might affect the degree of harshness of the impact upon the Appellant's family.
78. The FtT had found at [34] that the best interests of both the Appellant’s children lie in remaining with both parents in the UK, where they have built ties, are being educated and have a wider support network. I must have regard to the children’s best interests as a primary consideration. Having reminded myself of the Courts’ interpretation of the ‘unduly harsh’ test, as summarised above, I am satisfied that the Appellant has demonstrated, through the submission of medical, expert and country background evidence, that the health and needs of his eldest son in particular will be exacerbated upon any return to Pakistan so as to meet the elevated standard required to succeed under s.117C(5).
79. I have accepted Dr Ali’s opinion that expecting the eldest child to accompany the Appellant to Pakistan would have a profoundly detrimental impact on his mental health. Similarly, Dr Galappathie’s diagnoses of moderate episode of depression and generalised anxiety disorder for the eldest child have not been successfully challenged. Dr Galappathie is equally of the view that a move to Pakistan is likely to have a severe adverse impact on his mental health and development.
80. With the eldest child’s needs, I do not consider that a move to Pakistan for him would just be merely uncomfortable, inconvenient, undesirable or just difficult. Rather, I am satisfied that, for him, such a move would be unjustifiably severe and would meet the threshold of ‘unduly harsh’. This is particularly so in light of the eldest child’s other characteristics: his age of 14 years old, his entering a critical stage in his education with forthcoming GCSEs and his best interests lying in the UK as a British citizen child, who was born in the UK and who has never lived anywhere else. In those circumstances in accordance with the statutory provisions, the Appellant’s appeal stands to be allowed.
81. I have also taken into consideration the country expert evidence of Mr Khan in respect of the availability and accessibility of mental health care, and the cultural and social stigma attached to it, in Pakistan. The Respondent submits in the reply that the Appellant and his family have been cognisant of their respective difficulties and have sought help in the UK. In these circumstances, the Respondent submits that it is unknown what will specifically prevent the family from seeking help in Pakistan if they need to. I do not consider that this addresses the opinion raised by Mr Khan that the Appellant’s mother in particular would face routine ostracism in daily life in Pakistan owing to her mental health problems such as depression and anxiety, which would as a result be further exacerbated (para 30).
82. I accept that the Appellant, his wife and his eldest child have been able to seek a certain level of support whilst in the UK and may as a result, feel able to on any return to Pakistan. However, the ostracization and stigma that is addressed at length by Mr Khan in his report permeates wider society in Pakistan and is not something that the Appellant and his family can control or significantly influence. It is this that I consider also contributes to the Appellant’s deportation being unduly harsh for the Appellant’s eldest child, whether it is him who would experience stigma and ostracization or his mother given his age.
83. The Respondent has not disputed that the Appellant’s wife suffers herself from depression and has complex mental health needs of her own – see the FtT’s findings summarised at para 11(iv) above. The Appellant’s wife also has a range of physical conditions, which are debilitating as reported by her GP and including recurrent deep vein thrombosis, a diffuse bulge and annular tear at the L4/5 level (also known as a slipped disc or herniated disc), osteoarthritis in her knees. I consider it likely therefore that her medical needs will continue on any return to Pakistan, further compounding the issues raised in respect of her and the Appellant’s children to the extent that this also contributes to the ‘unduly harsh’ test being met.
84. Whilst the focus of these proceedings has been on the Appellant’s eldest child, I also note, as I did above, that the Appellant’s youngest child was also born in the UK and is now 10 years old himself. Whilst he has not suffered nor experienced the same difficulties as his older brother, the Respondent has previously deemed, at the very least, that it would be unreasonable to expect him to leave the UK when granting him leave in 2022.
85. It is also relevant that the impact on his older brother, which I have found to be unduly harsh, is likely to in turn impact on the Appellant’s younger son. Coupled with the Appellant’s wife’s health difficulties, which I have considered in brief above, I find that all of these factors cumulatively would also mean that the Appellant’s deportation and expecting his younger son to accompany the Appellant to Pakistan would be unduly harsh.
86. Pursuant to my findings that the Appellant does meet Exception 2, his appeal stands to be allowed through operation of statute.
s.117C(5) of the 2002 Act and the ‘very compelling circumstances’ test
87. In the alternative, and if I am wrong on the above, I now turn to consider whether or not the Appellant can also meet the ‘very compelling circumstances’ test set out in s.117C(6) of the 2002 Act.
88. I take all of the foregoing into account, namely my assessment of the evidence as it specifically concerns the best interests of the Appellant’s children and the health and consequential needs of the Appellant’s eldest child and wife. I do not rehearse this here as well but carry my findings forward into this assessment. There are also other considerations, some of which carry a significant amount of weight in the Appellant’s favour:
(a) the grant of leave to remain by the Respondent to the Appellant’s wife and youngest child;
(b) the FtT’s and the Upper Tribunal’s findings that it would be unduly harsh to expect the Appellant to return alone to Pakistan and to separate his family unit;
(c) the close parental relationship maintained by the Appellant with his children – he carries out most, if not all, of their primary care;
(d) the passage of time since the Appellant’s conviction in 2020;
(e) the absence of re-offending since;
(f) the Appellant’s full engagement with the probation services and his assessment by the services as being at a low risk of re-offending;
(g) the FtT’s finding that the Appellant’s remorse for offending was genuinely held.
89. Conversely, there is a very strong general public interest in maintaining the Respondent’s decision to deport the Appellant in light of his criminal conviction and his lack of lawful status in the UK.
90. The ‘very compelling circumstances’ threshold is undoubtedly stringent and I have at the forefront of my mind the public interest considerations which apply. Taking cumulatively the above-listed factors in favour of the Appellant remaining in the UK, together with my findings reached in respect of the Appellant’s wife and his children’s needs, with his eldest child in particular, I am satisfied that the particular circumstances of this Appellant and his family demonstrate that this threshold is also met. In the alternative therefore, pursuant to s.117C(6), the Appellant’s appeal stands to be allowed through operation of statute.

Notice of Decision
91. The decision of the FtT dated 9th November 2023 contained material errors of law and is set aside.
92. I re-make the appeal and allow the Appellant’s appeal on human rights grounds.

Sarah Pinder

Judge of the Upper Tribunal
Immigration and Asylum Chamber

06.06.2025