Tribunal decisions

The decision

IN THE UPPER TRIBUNAL
IMMIGRATION AND ASYLUM
CHAMBER
Case No: UI-2024-000631

First-tier Tribunal No: DA/00010/2023

THE IMMIGRATION ACTS

Decision & Reasons Issued:
On 29 May 2025

Before

UPPER TRIBUNAL JUDGE MANDALIA

Between

Secretary of State for the Home Department
Appellant
and

Rafal Tomasz Mrozek
(ANONYMITY DIRECTION NOT MADE)
Respondent

Representation
For the Appellant: Ms E Blackburn, Senior Home Office Presenting Officer
For the Respondent: Ms J Blockley, instructed by Andrews Immigration Solicitors

Heard at Edinburgh Tribunals Hearing Centre on 29 January 2025
Decision and Reasons
Introduction
1. Although the appellant in the appeal before the Upper Tribunal is the Secretary of State for the Home Department, for ease of reference I continue to refer to the parties as they were before the First-tier Tribunal (“FtT”). Hereafter I refer to Mr Mrozek as the appellant and the Secretary of State as the respondent.
The Background
2. The appellant is a national of Poland. He has an extensive criminal history dating between 2017 to 2022 consisting of a total of 12 offences. His appeal against the respondent’s decisions of 12 December 2022 and 26 October 2023 to refuse his human rights claim was allowed on Article 8 grounds by FtT Judge Young-Harry (“the judge”) for reasons set out in a decision promulgated on 8 January 2024.
3. The judge noted that the appellant's first conviction in the UK was on 14th July 2017. Thereafter, the appellant was convicted of six offences in 2019, one in 2020, one in 2021 and three in 2022. The index offences that gave rise to the respondent’s decision to deport the appellant and refuse his human rights claim follows a conviction on 8 December 2022 of abusive behaviour towards his partner or ex-partner, and the assault of a police officer in execution of their duty. The appellant was sentenced to a total of 23 months imprisonment.
4. The judge’s findings and conclusions are set out at paragraphs [12] to [25] of the decision. The judge noted that the appellant received a sentence of less than 4 years and that s117C of the Nationality, Immigration and Asylum Act 2002 (“the 2002 Act”) operates so that the public interest requires the appellant’s deportation unless the exceptions set out in s117C(4) or (5) apply. The judge found Exception 1 set out in s117C(4) does not apply. The judge found the appellant has not been lawfully resident in the United Kingdom for most of his life, is not socially and culturally integrated in the United Kingdom and he is unable to establish that there would be very significant obstacles to his integration into Poland.
5. The appellant relied upon Exception 2 set out in s117C(5) of the 2002 Act. The thrust of the claim made by the appellant was that he has a genuine and subsisting relationship with his children (aged 15, 12 and 11 at the time) and the effect of his deportation on the children would be unduly harsh. To that end, the judge said:
“14. …When considering this test, I have regard for HA (Iran) [2022] UKSC 22, with reference to MK (Sierra Leone) v SSHD [2015] INLR 563. I am to make an evaluative assessment and keep in mind that undue harshness is not simply discomfort or inconvenience, or something which is undesirable or merely difficult; it is a considerably more elevated threshold, something severe or bleak.”
6. The judge found that it would be unduly harsh for the children to have to leave the UK and return to Poland with their father. The judge said, at [21], that on the evidence before the Tribunal the children “have just started to settle into having their father present and active in their lives, and are establishing new patterns of contact, which no doubt benefits the children.” The judge went on to say:
“21. …I find to remove their father from their lives again at this stage would be unduly harsh and would negatively impact each of them. I find the effect on them would amount to more than mere inconvenience or discomfort. Given the appellant's ex-wife would not be willing or expected to travel to see the appellant in Poland, and given the children are too young to travel alone, I find family life would be interrupted.
22. given the respondent accepts the appellant was lawfully resident in the UK before the deadline, that he has made an EUSS application and that his offending occurred both pre and post the deadline, I consider the fact that according to the appellant's HMRC records, he had resided in the UK for a continuous period of 10 years, before the respondent's decision and before his first custodial sentence in 2019, thus the appellant is entitled to enhanced protection; thus a decision to remove the appellant may not be taken except on imperative grounds of public security.
23. As part of the proportionality assessment, in line with Land Baden-Wurttemberg v Tsakouridis (C-145/09; [2013] All ER (EC) 183, I balance the threat to public policy, public security and public health as a result of the appellant's criminal conduct, the risk of reoffending and the degree of his offending behaviour, against the degree of his integration in the UK and impact on family life. Given I find it would not be in the appellant's children's best interests to be separated from their father, and given I find the respondent has failed to provide sufficient evidence to show imperative grounds have been established, I find the balance tips in the appellant's favour in this regard.
24. Having carefully considered all the evidence before me, I find the appellant has shown, that the impact of his deportation on his children would be unduly harsh, such that the balance weighs in the appellant's favour.”
The Appeal Before the Upper Tribunal
7. The respondent claims the judge fails to provide adequate reasons for the conclusion reached that the impact of the appellant’s deportation on his children would be unduly harsh. The respondent refers to the decision of the Supreme Court in KO (Nigeria) and Others v SSHD [2018] UKSC 53 in which the Court confirmed that the test is a demanding one. The respondent also refers to the decision of the Court of Appeal in HA (Iraq) v SSHD [2020] EWCA Civ 1176 in which the court cited, with approval, what was said by McCloskey J in MK (Sierra Leone). The respondent claims the judge’s reasons do not explain how the high threshold that applies, is met. The respondent also claims that the judge erred by referring to the legal framework that applies to the deportation of EU nationals. The judge said, at [22] that a decision to remove the appellant may not be taken except on imperative grounds of public security and at paragraph [23] said that she had balanced the threat to public policy, public security and public health as a result of the appellant's criminal conduct, the risk of reoffending and the degree of his offending behaviour, against the degree of his integration in the UK and impact on family life. That, the respondent claims, was not the relevant test in deciding the appeal.
8. Permission to appeal was granted by Upper Tribunal Judge Lane on 3 May 2024. He said:
“It is arguably unclear why the judge carried out a proportionality assessment on the basis that the appellant had ‘enhanced protection’ when he records at [7] that the parties were agreed that the appeal only engaged Article 8 ECHR consequent upon a decision to deport on conducive grounds under the Immigration Act 1971. It is arguably unclear why and to what extent this assessment may have ‘tipped the balance’ in the appellant’s favour [23]. Further, the reference to the children’s best interests [23] casts arguable doubt on the judge’s application of the correct legal test in this human rights appeal.”
9. On behalf of the respondent, Ms Blackburn adopts the grounds of appeal. In her oral submissions, Ms Blackburn contends that the judge fell into error by directing herself to the issues and tests relevant to deportation decisions taken under the Immigration (European Economic Area) Regulations 2016 and that in reaching her decision, it is not at all clear what legal framework the judge applied. The judge conflates the issues that arise under two different legal frameworks and the Tribunal cannot therefore be satisfied that the Judge had in mind the correct test in reaching her decision. It cannot be said, Ms Blackburn submits, that the judge would have reached the same decision had she had in mind the correct test without reference to the test under the EEA Regulations.
10. In reply, Ms Blockley submits the judge noted, at paragraph [6], that there was discussion regarding the relevant legal framework. At paragraph [7] the judge recorded that the respondent pursues the appellant’s deportation under the domestic regime as set out in section 3 Immigration Act 1971 on the basis that the appellant’s deportation is conducive to the public good. She submits that in referring to the legal framework applicable under the EEA Regulations, the judge was simply ensuring that all bases are covered. In any event, she submits any error is immaterial. In the end, the judge found, at [24], that the impact of the appellant's deportation on his children would be unduly harsh such that the balance weighs in the appellant's favour. That was a decision that was open to the judge on the evidence before the Tribunal and the findings made.
Decision
11. In considering the respondent’s claim that the decision of the FtT is vitiated by material errors 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.
12. There is no doubt the appellant is a ‘foreign criminal’ as defined in s117D of the 2002 Act. The essential question which lay beneath the judge’s analysis was whether the removal of the appellant from the United Kingdom would be unlawful under section 6 of the Human Rights Act 1998. The judge set out the relevant law at paragraph [10] of her decision and made reference, in particular, to section 117C of the 2002 Act. At paragraph [11] of her decision, the judge said that she had borne in mind that the deportation of foreign criminals is in the public interest and that the more serious the crime, the greater the public interest in deportation.
13. The judge’s findings and conclusions are set out at paragraphs [12] to [24] of her decision. The judge referred to the relevant public interest considerations set out in s117C of the 2002 Act. It is clear from what is said at paragraphs [13] to [21] of the decision that the judge had in mind section 117C of the 2002 Act. At paragraph [14], the judge referred to the claim made by the appellant that the Exception set out in s117C(5) of the 2002 Act applies. She said:
“..When considering this test, I have regard for HA (Iran) [2022] UKSC 22, with reference to MK (Sierra Leone) v SSHD [2015] INLR 563. I am to make an evaluative assessment and keep in mind that undue harshness is not simply discomfort or inconvenience, or something which is undesirable or merely difficult; it is a considerably more elevated threshold, something severe or bleak.”
14. 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."
15. The judge plainly referred to the correct test and the high threshold that applies. It was nevertheless incumbent on the judge to demonstrate in her decision and reasons that she had in fact applied the correct test in reaching her decision. It was for the judge to make an informed assessment of the effect of deportation on the appellant’s children. 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.
16. The judge noted the appellant is separated from the mother of his children and that many of the offences committed by the appellant relate to domestic violence committed against his ex-wife. The judge noted that as a result of the appellant’s repeated pattern of offending, in December 2022 he was made the subject of a 7-year restriction order, restricting him from contacting his ex-wife.
17. Nevertheless, the appellant’s appeal was supported by his ex-partner who the judge records gave evidence and stated the appellant has “been a good father”. Her evidence was the appellant sees his children regularly and both before and since the sentence of imprisonment, the appellant is “actively involved in the children's daily lives and their upbringing, that he would take them out regularly for various activities.” At paragraph [17] of the decision, the judge refers to the evidence of the appellant’s ex-partner that if the appellant is deported, “it would have a devastating impact on her children, particularly the youngest child, who has already been impacted by the appellant's absence.” The judge was impressed by the evidence of the appellant’s ex-partner who is described as a “credible and reliable witness” and found the appellant has a genuine and subsisting parental relationship with his three children in the UK.
18. The judge referred to the evidence and noted, at [21], that the children have just started to settle into having their father present and active in their lives. She found that to remove the appellant from the children's lives again at this stage, would be unduly harsh and would negatively impact each of them. At paragraph [23], the judge found the effect on the children would amount to more than mere inconvenience or discomfort.
19. It is now well established that the reasons for a decision must be intelligible and they must be adequate. They must enable the reader to understand why the matter was decided as it was and what conclusions were reached on the “principal controversial issues”, disclosing how any issue of law or fact was resolved. A reasons challenge will only succeed if the party aggrieved can satisfy the court that he has genuinely been substantially prejudiced by the failure to provide an adequately reasoned decision.; TC (PS compliance - “Issues-based reasoning”) Zimbabwe [2023] UKUT 00164 (IAC). I also acknowledge that where a judge applies the correct test, and that results in an arguably generous conclusion, it does not mean that it was erroneous in law.
20. However, a party appearing before a Tribunal is entitled to know, either expressly stated by it or inferentially stated, what it is to which the Tribunal is addressing its mind. Second, the parties are entitled to know the basis of fact on which the conclusion has been reached. I accept, as the respondent claims, that it is difficult to see from the factors referred to by the judge how the elevated standard has been met. The question is not whether the effect of the appellant’s children is merely harsh, but unduly harsh. The judge referred to the evidence of the appellant’s ex-partner that the appellant has been a ‘good dad’ and that he speaks to his children regularly. The judge refers to evidence that the appellant was, before his imprisonment, actively involved in the children’s daily lives, their upbringing and that he would take them out regularly for various activities. The evidence of the appellant’s ex-partner was that the appellant’s deportation would “have a devastating impact on her children, particularly the youngest child”, without any further elaboration as to what the impact would be and without considering whether the impact could be mitigated.
21. The children live, and will continue to live with their mother who is undoubtedly their primary carer. The evidence before the Tribunal was that the appellant now sees the children ‘bi-weekly on the weekends, and that they also visit during the week. The judge said, at [18] that the appellant was able to provide some, but limited information about his children’s education and school life. The judge said at paragraph [20] that the children have already been affected by their father’s absence while serving his various prison sentences and that this has no doubt been disruptive and had a less than positive impact on the children. The judge’s reasons for concluding that the effect of the appellant's deportation on his children would be unduly harsh appear to be that the children have just started to settle into having their father present and active in their lives, establishing new patterns of contact. The judge found at [21] that to remove their father from their lives again at this stage would be unduly harsh and would negatively impact each of them. The judge does not identify what that negative impact would be and the evidential basis for such a conclusion. 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 be described as harsh, but it is impossible to discern from the reasons set out in the decision, the basis upon which the judge concluded it would be unduly harsh.
22. I accept too that in reaching her decision, the judge erroneously referred to the test relevant to the deportation of an EEA national under the EEA Regulations. The judge expressly said, at [22], that she considered the fact that according to the evidence the appellant had resided in the UK for a continuous period of 10 years, before the respondent's decision and before his first custodial sentence in 2019. The judge said:
“…thus the appellant is entitled to enhanced protection; thus a decision to remove the appellant may not be taken except on imperative grounds of public security.”
23. The judge went on to say, at [23] that as part of the proportionality assessment she balanced the threat to public policy, public security and public health as a result of the appellant's criminal conduct, the risk of reoffending and the degree of his offending behaviour, against the degree of his integration in the UK and impact on family life. She said:
“I find the respondent has failed to provide sufficient evidence to show imperative grounds have been established, I find the balance tips in the appellant's favour in this regard.”
24. Reading the decision as a whole, I am satisfied 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 children would be unduly harsh. I cannot be satisfied that the judge applied the correct legal framework and that she had in mind the correct test in reaching her decision.
25. It follows that I find the decision of the judge is vitiated by material errors of law and must be set aside.
26. As to disposal, both parties submit that the appropriate course is for the appeal to be remitted to the FtT for hearing afresh. 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 having had regard to paragraph 7.2(a) of the Presidential Practice Statement. 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
27. The decision of the First-tier Tribunal Judge Young-Harry involved the making of an error on a point of law and the decision to allow the appellant’s appeal on Article 8 grounds is set aside.
28. 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

6 May 2025