Tribunal decisions

The decision

IN THE UPPER TRIBUNAL
IMMIGRATION AND ASYLUM CHAMBER
Case No: UI-2024-001025

First-tier Tribunal No: HU/57759/2022

THE IMMIGRATION ACTS
Decision & Reasons Issued:

On 7th of March 2025

Before

UPPER TRIBUNAL JUDGE HANSON

Between

QS
(ANONYMITY ORDER MADE)
Appellant
and

SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: Ms Radford, instructed by Turpin Miller LLP, Solicitors.
For the Respondent: Ms Rushforth, a Senior Home Office Presenting Officer.

Heard at Cardiff Civil Justice Centre on 21 February 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 with permission a decision of a judge of the First-tier Tribunal (‘the Judge’), promulgated following a hearing at Columbus House, Newport, on 15 January 2024 in which the Judge dismissed his appeal against the refusal of his application for leave to remain in the UK pursuant to Article 8 ECHR, relied upon as an exception to the Secretary of State’s decision to deport him from the United Kingdom to Jamaica.
2. QS, a citizen of Jamaica born on 23 March 1981, was granted leave to enter the UK as a visitor in December 2010, valid to 20 January 2011.
3. QS overstayed and made a number of applications for leave to remain, all of which were refused, but he was not removed.
4. QS was convicted on 8 June 2011 of two counts of being concerned with the supply of Class A controlled drugs and five counts of being concerned in supplying Class A controlled drugs, Heroin. QS was sentenced to a period of four years imprisonment and on 26 July 2011 was served with notice of liability to automatic deportation.
5. QS was also convicted of a number of driving offences between October 2008 March 2010 and on 11 August 2020 was convicted at Bristol Crown Court of two counts of being concerned in supplying controlled drug Class A (Cocaine) and possessing heroin for which he was sentenced to 4 years imprisonment. On 26 October 2021 QS made further submissions which were refused with no right of appeal, although following the lodging of a Consent Order the Respondent reconsidered her decision on 4 November 2021, giving rise to a right of appeal.
6. Having considered the documentary and oral evidence the Judge sets out her findings from [10] of the decision under challenge. The issues the FTT Judge was required to consider are set out at [12] as follows:

“a. Article 3 ECHR: whether it would still be reasonable to expect A to avoid serious harm by relocation within Jamaica;
b. Whether A’s Article 3 ECHR rights would also be breached due to the high risk he would commit suicide;
c. Article 8 ECHR: whether there are very compelling circumstances over and above the defined exceptions to deportation in s.117C NIAA 2002 which render deportation disproportionate. This requires consideration of:

i. Whether it would be unduly harsh for A’s minor daughter to accompany him to Jamaica;
ii. Whether it would be unduly harsh for his minor daughter to remain in the UK while A is deported to Jamaica;
iii. Whether deportation is otherwise disproportionate, having regard to the considerations set out in the jurisprudence of the ECtHR in Uner and Boultif, and treating the child’s best interests as a primary consideration.”

7. Dealing with the Article 3 issue first, the Judge notes that the Appellant was arguing that removal to Jamaica would cause his already serious mental health problems to deteriorate and that he consequently no longer could relocate to avoid the risk of serious harm in his home area. It was argued, further or in the alternative, that his deterioration would be serious enough to breach Article 3 ECHR on health grounds, and that he had post-decision evidence which warranted departing from the decision of the Upper Tribunal in 2014, namely a clinical psychological report of Dr Isaacs, which concluded he was suffering from severe PTSD, severe anxiety and moderately severe depression. It was said that was impacting on his functioning at all levels and that psychologists and psychiatrists are scarce in Jamaica as most work in the private sector. The Appellant also relied on a report from Dr Luke de Noronha detailing recent media attention in UK deportation and claiming that he could not reasonably relocate and/or that return would breach his rights pursuant to Article 8 ECHR.
8. In 2014 the Upper Tribunal had accepted that the person the Appellant claimed to fear, against whom he had given evidence at a trial in the UK, LR, was a potentially dangerous person, but the evidence did not show this person had made enquiries about the whereabouts of the Appellant. It was found the Appellant could have been found relatively easily in Bristol but there was no evidence anybody had actively sought to do so or sent others to do him any harm. The Upper Tribunal concluded that any risk would only arise in a casual encounter and any risk of detection would be minimal. It also found the Appellant would benefit from assistance given to returnees by various agencies, could access suitable accommodation, that he had the skills and had worked and could therefore support himself.
9. Having considered all the available evidence, the Judge draws together the threads of her finding in relation to Article 3 at [30] in the following terms:
30. It was the finding of the Upper Tribunal that LR was not reasonably likely to seek the Appellant out and that he could safely relocate. There is no evidence before me that LR has been looking for the Appellant and it is now 9 years since the decision of the Upper Tribunal. No fresh evidence has been produced in relation to a threat to the Appellant and I find that it is likely that the threat will have lessoned given the effluxion of time, particularly in view of the fact that there has been no suggestion that any enquiries have been made about the Appellant. I do not accept therefore that he will be returning to a life of threat and violence, absence of family or destitution. I find that the factual basis for the hypothetical risk of suicide on which Dr Isaac’s conclusions are based is erroneous. I do not accept that the Appellant would be at risk of suicide. It is also clear from the CPIN that psychiatric treatment can be accessed in a public facility. It follows that I do not accept that there are substantial grounds for believing that the Appellant would be exposed to a real risk of a serious, rapid and irreversible decline in his state of health resulting in intense suffering. I find that there would be no breach of Article 3.
10. In relation to whether there are very compelling circumstances over and above the exception to deportation, the Judge accepts the Appellant has a genuine subsisting relationship with his daughters one of whom is an adult (S) and the other, at the date of decision, was 17 years of age (T). They have different birth mothers and the Judge considered the report of the Independent Social Worker, Deborah Orr, and relevant statements referred to at [31].
11. The Judge finds it will be unduly harsh for T to have to leave the UK and travel with the Appellant to Jamaica [33] (‘the go scenario’) and at [39] writes (in relation to the ‘stay scenario’):
39. I have also considered the evidence from the school in relation to T and the medical evidence that was uploaded after the hearing bundle was compiled. I accept that the expert’s report complies with the Practice Direction and that it is well-reasoned. I also accept that T sees her father a couple of times a week and that they have a good relationship. I accept that she struggled in school when he was in prison and it affected her relationship with S. However, whilst I find that the Appellant’s deportation would be harsh I do not accept that it would be unduly harsh considering the elevated threshold. T does not live with her father and although her mother may find it difficult if the Appellant does not provide support, the evidence of T’s grandmother, Mrs A, shows that T has a good support structure from wider local family. I accept that T will be very upset at the deportation of her father because they have a good relationship, and that it would be in her best interests for her father to remain in the UK. However, I do not find that his removal would be unduly harsh in light of the fact that she lives with her mother, and there are no social service concerns with her parenting abilities and she clearly has a nurturing wider family. T and S are now in regular contact with each other and live closely together and consequently are likely to stay in contact when the Appellant leaves. Further, the letters from her school clearly show that she is supported and can obtain additional support if she needs it.
12. The Judge then moved on to consider the Article 8 ECHR issue, directing herself as to the need to undertake a proper balance sheet assessment of the competing arguments. Having done so the Judge concludes at [46]:
46. Weighing all factors in the balance, and taking account of the seriousness of the offences I find that the public interest in deportation outweighs his private life ties to the United Kingdom and that his deportation is proportionate.
13. The Appellant sought permission to appeal asserting the FTTJ had materially erred in law in:

a. Impermissibly going behind an agreement between the parties as to the currency of a previous determination, leading to procedural unfairness;
b. Her consideration of the medical evidence was irrational, put weight on a material matters and was inadequately reasoned;
c. Her consideration of whether there were ‘very compelling circumstances’ etc rendering deportation disproportionate was infected by an immaterial matter (the immigration status of the child’s parent of her birth) and failed to consider the child’s best interests beyond the question of ‘undue harshness’.

14. Permission to appeal was refused by another judge of the First-tier Tribunal but granted by Deputy Upper Tribunal Judge Monson on 17 April 2024, the operative part of the grant being in the following terms:
1. Since it was apparently conceded by the respondent and/or it was an agreed position that the previous findings of the UT on risk still applied, and hence that LR was still a potentially dangerous person to the appellant, it was arguably procedurally unfair or irregular for the Judge to find at [27] that the appellant was likely to be able to access a social network in Jamaica consisting of his family there, absent a concomitant finding that the appellant’s family did not reside in the appellant’s former home area, but somewhere else in Jamaica to which it was reasonable to expect the appellant to relocate, in order to avoid the risk of a casual encounter with LR. Hence, Ground 1 is arguable.
2. I consider that Grounds 2 and 3 have little merit, but they may also be argued.
Discussion and analysis
15. Ground 1 as pleaded reads:
Ground 1: internal relocation – procedural irregularity
4. In a previous determination of the Upper Tribunal promulgated in 2014, A was found to be at risk of serious harm from LR, a man he had testified against, but that he would not be actively sought by LR, so he could avoid harm by relocating away from his home area: see FTTJ, [30]. FTTJ decided to depart from these findings at the behest of neither party and without giving the Appellant an opportunity to make submissions or adduce relevant evidence. This was procedurally unfair.
5. The Appellant’s case was set out in his ASA, where he asked FTTJ to depart from the UT’s conclusion that he could reasonably relocate within Jamaica. SSHD responded to those submissions in her review: “The Respondent highlights the findings made by Upper Tribunal Judge King TD and Upper Tribunal … where this issue was considered in full, and it was found that the Appellant could relocate and that he would not be at risk.” In his oral submissions, SSHD again argued that the issue “has been settled by previous determination/Should not be relitigated/No evidence in bundle to suggest any change to what has been heard previously.”
6. It was therefore effectively agreed between the parties that the Upper Tribunal’s findings on risk remained good. The proper approach to matters of fact which are not in issue between the parties was considered in Carcabuk & Bla Carcabuk & Bla v Secretary of State for the Home Department (00/TH/01426), para 11-12. The FTTJ should not go behind such agreements. Had FTTJ been concerned about whether the SSHD’s position was appropriate, she could have raised those concerns with the SSHD. But unless SSHD withdrew her concession, FTTJ should not have gone behind it. Moreover, if SSHD had decided to change her position, the Appellant would need to be given an adequate opportunity to respond with evidence and submissions.
7. This error was material because the fact that the Appellant would be relocating away from his home area and the remaining relatives he had in Jamaica was relevant to the obstacles to reintegration he would face, his subjective fears and their effect on his mental health, and the reasonableness of expecting his British children to visit him (see [27], [30], [43]).
8. Refusing permission on this ground, the First Tier Tribunal said that FTTJ’s conclusion that the risk to the Appellant had lessened over time was “clearly open to her”. For the avoidance of doubt, the Appellant does not maintain that the FTTJ’s conclusion was irrational, but that it was material and was reached in a procedurally unfair manner.
9. The First Tier Tribunal also observed that the Appellant had asked the FTTJ to depart from the previous determination. However, the Appellant’s submissions only related to the reasonableness of relocation, not risk. The parties were not in dispute over the continuing risk to the Appellant in his home area, and the FTTJ should not have gone behind that concession, or alternatively should not have done so without inviting submissions and/or evidence.
16. The decision of the Upper Tribunal under discussion was promulgated on the 15 September 2014, with reference DA/00321/2013. That appeal was heard by a panel composed of Upper Tribunal Judge King TD and Upper Tribunal Judge Rintoul (‘the Panel’). At [55 – 62] of the determination, when considering the alleged risk from LR, the Panel wrote:
55. It seems to us that this matter of relocation and the appellant's safety should be considered from a number of perspectives.
56. That LR is a potentially dangerous person to the appellant is of course readily to be accepted.
57. We do not find, however, on the evidence as presented that, since his release and return to Jamaica, LR has made any extensive or systematic enquiries concerning the whereabouts of the appellant. As the appellant himself indicates, he and LR have lived in Bristol and LR knows of the appellant's family and the appellant knows of the mother of LR's child. It would, therefore, seem to us to be relative easy, were LR to have actively sought out the appellant, for him to have located where he lives and possibly sent others to do him harm. There is no indication of that matter.
58. It does not seem to us to be reasonably likely that the absence of the appellant from Bristol itself would cause much comment amongst the Jamaican community, let alone to lead to the conclusion that he has been removed to Jamaica rather than going to live elsewhere in the UK. The appellant has little to do with the mother of LR' s child and there is no reason to suppose that she would come to know of his return to Jamaica and inform LR. The real connection is the friend of the appellant who has contact with LR' s family and friends. As the appellant made clear in his own evidence before us, he did not consider that that person was criminally involved with LR and did not think that that person would himself notify LR or any return. We find it, therefore, to be speculative in the extreme that any of the community in Bristol would be in contact with LR to notify LR of the appellant's return.
59. Even were LR to be appraised of the appellant's return and make some enquiries as to his whereabouts, it is again speculative that such enquiries would locate the appellant. As was made clear in the case of AB, even were gangs themselves to be seeking an individual that would not necessarily result in information being received or the person found. There is no coordinated network; the gangs are more focused upon their own interests rather than other individual interests. Given the COIS report there are even more gangs in Jamaica than in 2007 at the time of AB. It is difficult therefore to imagine within the multiplicity of gangs that there would be common intelligence to link the appellant.
60. It is argued that if the appellant involves himself in further criminality he will inevitably come to the attention of LR. That on our interpretation of AB is not reasonably likely to be the case. There is no reason why one gang should give information about its members to another. Indeed there are good reasons for its own security why that would not happen. We do not find therefore that there is a readily available mechanism for LR within his criminal contacts to trace the appellant ,even were he aware of his presence.
61. In any event, as we have indicated, LR seems to be very much occupied with drugs and criminality, such that no doubt most of his time and interest is taken up with those matters rather than seeking to trace the appellant.
62. Thus we consider, in practical terms, that the risk to the appellant from LR would only arise in a casual encounter. The incidence of such is statistically negligible, particularly were the appellant to relocate to an area which was not one where LR would seem to operate.
17. At [65] in relation to the issue of safety on return, the Panel find that returning the Appellant to Jamaica would not be in breach of his rights under Article 3 ECHR, find he will be able to relocate in Jamaica outside his home area, that any risk of detection will be minimal, and was insufficient to reach even the low threshold applicable, by anyone who would specifically wish him harm.
18. In her submission Miss Radford asserted the Judge had erred in treating the 2014 decision has not being the start but also the end of the position in relation to risk.
19. I find there is, in principle, nothing wrong with the Judge doing that provided between the two points the Judge accepted, pursuant to the Devaseelan principle, the previous determination forms a starting point, that there is a need to assess the evidence as a whole to establish whether it warrants departing from the findings previously made, and then coming to a reasoned conclusion as to whether it does or not. If the evidence does not warrant a different position being taken from that in the earlier decision, that decision will form both the starting and end points in relation to the issue in question.
20. The Judge was aware of the earlier decision of the Panel and makes specific reference to it in the determination. When the Secretary of State was asked about her position in relation to these issues she confirmed that the situation had been established by the Panel which was the position the Secretary of State continued to rely upon.
21. At [6] of the application for permission to appeal is reference to the decision in Carcabuk & Bla v Secretary of State for the Home Department (00/TH/01426). In that decision at [7] the Tribunal stated “the adjudicator is entitled to satisfy himself that the particular concession was made and was intended to be made. The adjudicator may express his reservations and asked the HOP to reconsider if you adjudicator believes that the concession ought not in all the circumstances to have been made”
22. The Secretary of State’s position was confirmed in the Respondent’s Review dated 15 November 2023 which is in the following terms:
[A] Introduction
1. The Respondent (R) continues to rely on the Reasons for Refusal Letter (RFRL) dated 11/10/2022.
2. The Appellant has a convictions connected to the supply of Class A drugs which attracted a sentence of 4 years imprisonment on the 08/06/2011 and 4 years imprisonment on the 11/08/2020.
3. In undertaking the review R has assessed the decision against published processes and guidance as well as the Appellant’s Skeleton Argument (ASA) and accompanying material submitted. The schedule of issues and counter schedule below are clear on what matters are now accepted. Any other aspect of the Refusal and relevant sections of the Immigration Rules remain a concern and are expected to be addressed at the appeal hearing. The RFRL as a whole alongside this document provides an overall view of the case and points in the ASA which are not specifically addressed should not be taken as accepted by R.
[B] Schedule of issues
4. List Schedule of issues as set out in the ASA:
(i) Article 3 ECHR: whether it would still be reasonable to expect A to avoid serious harm by relocation within Jamaica.
(ii) Whether A’s Article 3 ECHR rights would also be breached due to the high risk he would commit suicide.
(iii) Article 8 ECHR: whether there are very compelling circumstances over and above the defined exceptions to deportation in s.117C NIAA 2002 which render deportation disproportionate. This requires consideration of:
Whether it would be unduly harsh for A’s minor daughter to accompany him to Jamaica.
Whether it would be unduly harsh for his minor daughter to remain in the UK while A is deported to Jamaica.
Whether deportation is otherwise disproportionate, having regard to the considerations set out in the jurisprudence of the ECtHR in Uner and Boultif, and treating the child’s best interests as a primary consideration.
[C] Counter Schedule
(i) Article 3 ECHR: whether it would still be reasonable to expect A to avoid serious harm by relocation within Jamaica.
5. The Respondent has reviewed the arguments advanced in the ASA and the evidence provided in the AB however, the Respondent submits that it would be reasonable to expect the Appellant to relocate in Jamaica to avoid any potential harm. It is not contested in the ASA that this issue should be considered according to the principle of Devaseelan (Second Appeals, ECHR, Extra Territorial Effect) [2002] UKIAT 702. The Respondent highlights the findings made by Upper Tribunal Judge King TD and Upper Tribunal Judge Rintoul at paragraphs 57 – 65 of the determination [RB 39 – 41] where this issue was considered in full, and it was found that the Appellant could relocate and that he would not be at risk.
Report of Dr Juanita Isaacs dated 7th July 2023 conducted remotely on 16th May 2023
6. The Respondent acknowledges the submissions that the Appellant cannot reasonably relocate due to his mental health problems and notes that the Appellant seeks to rely particularly on Dr Isaacs report with regard to this matter. The Respondent has reviewed Dr Isaacs report in respect of this.
7. The Respondent highlights that this report was prearranged by the Appellant’s immigration solicitors and the Appellant would have been aware that this was an opportunity to present his evidence with the aim of assisting his attempts to remain in the UK. For this reason, reduced weight is given to the report where it relies upon uncorroborated claims from the Appellant.
8. The Respondent highlights that despite the fact that Dr Isaacs has reviewed the Appellants medical records and that the report was completed on 7th July 2023, Dr Isaacs does not comment on the fact that the Appellants GP records do not indicate any significant mental health concerns postdating December 2020 when the Appellant was released from prison.
9. The Respondent notes that although there appears to be a history of mental health in the prison medical records [AB 97 – 216] these records end in December 2020 almost 3 years ago. More pertinently it is clear in the Appellants community medical records that on the 15th March 2023 the Appellant reduced his Mirtazapine dosage from 30mg to 15mg. Further these records although have brief references to the Appellant being prescribed Mirtazapine do not indicate that the Appellant has any significant ongoing mental health problems. Although it is acknowledged that the Appellant has taken part in Talking Therapies it is clear from the letter dated 21st February 2023 [AB Pg 498] that this treatment has now ended. There is no evidence in the records provided to suggest that the Appellant is in need of or that he is accessing any other treatment.
10. The Respondent relies on HA (expert evidence, mental health) Sri Lanka [2022] UKUT 111 (IAC) (25 March 2022) (bailii.org)
(3) In the case of human rights and protection appeals, however, it would be naive to discount the possibility that an individual facing removal from the United Kingdom might wish to fabricate or exaggerate symptoms of mental illness, in order to defeat the respondent's attempts at removal.
(4) Notwithstanding their limitations, the GP records concerning the individual detail a specific record of presentation and may paint a broader picture of his or her mental health than is available to the expert psychiatrist, particularly where the individual and the GP (and any associated health care professionals) have interacted over a significant period of time, during some of which the individual may not have perceived themselves as being at risk of removal.
11. The Respondent subsequently submits that the evidence supplied does not disturb the previous finding of Upper Tribunal Judge King TD and Upper Tribunal Judge Rintoul and it is still reasonable for the Appellant to relocate in Jamaica.
(ii) Whether A’s Article 3 ECHR rights would also be breached due to the high risk he would commit suicide.
12. The Respondent does not accept that the evidence supplied by the Appellant in relation to his mental health is such that his Article 3 rights would be breached should he be deported. The Respondent is aware of the opinions of Dr Isaacs in respect of this however, as outlined above the Appellants medical evidence since his release from prison does not support these findings and further as per the caselaw of HA (expert evidence, mental health) ‘ it would be naive to discount the possibility that an individual facing removal from the United Kingdom might wish to fabricate or exaggerate symptoms of mental illness’.
13. Further the Respondent relies on the CPIN Jamaica Medical and healthcare issues dated March 2020 which sets out at section 13.2.4 that the following treatments are available at the public facility, University Hospital of the West Indies in Kingston, Jamaica:
Inpatient treatment by a psychologist
Outpatient treatment and follow up by a psychologist.
Psychiatric clinical treatment (short term) by a psychiatrist
Psychiatric crisis intervention in case of suicide attempt
Psychiatric forced admittance in case necessary
Psychiatric long term clinical treatment (e.g for chronic psychotic patients) by a psychiatrist
Outpatient treatment and follow up by a psychiatrist.
Psychiatric treatment of PTSD: related to sexual violations.
Psychiatric treatment of PTSD by means of narrative exposure therapy Psychiatric treatment of PTSD by means of cognitive behavioural therapy.
Psychiatric treatment of pf PTSD by means of EMDR.
Psychiatric treatment by means of psychotherapy e.g cognitive behavioural therapy.
Psychiatric treatment by means of psychotherapy: other than cognitive behavioural therapy.
14. It is therefore the Respondents submission that any treatment that the Appellant should require can be accessed in Jamaica in a public facility, it would not be reasonable to suggest that the Appellant could not access this treatment. Subsequently as per AM Zimbabwe [2020] UKSC 17 it is not accepted that ‘there substantial grounds for believing that the individual is likely to be exposed to a real risk of a serious, rapid and irreversible decline in their state of health resulting in intense suffering or a significant (substantial) reduction in life expectancy’ due to the absence of or the lack of access to appropriate treatment in Jamaica. Consequently, it is not accepted that the Appellants removal reaches the high threshold of severity to breach Article 3.
(iii) Article 8 ECHR: whether there are very compelling circumstances over and above the defined exceptions to deportation in s.117C NIAA 2002 which render deportation disproportionate. This requires consideration of:
Whether it would be unduly harsh for A’s minor daughter to accompany him to Jamaica.
Whether it would be unduly harsh for his minor daughter to remain in the UK while A is deported to Jamaica.
Whether deportation is otherwise disproportionate, having regard to the considerations set out in the jurisprudence of the ECtHR in Uner and Boultif, and treating the child’s best interests as a primary consideration.
15. The Respondent continues to maintain the position set out in the RFRL under the ‘very compelling circumstances’ heading. The Respondent highlights that the Appellants eldest daughter S is 18 years old and subsequently is not a qualifying child in this matter. The Respondent does not accept that the updated independent social worker report authored by Deborah Orr dated 21st June 2023 has demonstrated any very compelling circumstances with respect of the Appellants relationship with his qualifying daughter T.
16. The Respondent has reviewed this report however, it is clear that this report is much the same as Ms Orr’s previous report dated 12th October 2021. Ms Orr states throughout her most recent report to refer to her findings in the previous report as her opinion remains the same. The Respondent acknowledges Ms Orr’s concerns with regard to T’s educational needs, however, it is clear from the report and the letter from T’s school [AB Pg 69] that T’s school and teachers are aware of her needs and that they are able to support her, further it is reasonable to believe that the school can refer T to any additional support should she require it. T’s mother may also be able to access additional support through the local authority should she require it.
17. The Respondent highlights that Ms Orr appears to overstep her area of expertise at paragraph 4.3 of her report when she seeks to apply the unduly harsh test. It is the Respondents submission that it is not Ms Orr’s duty to apply this test and it considered that Ms Orr’s is advocating on behalf of the Appellant in this matter.
18. The Respondent also notes from the evidence provided that the Appellant does not live with his daughter, (and it is not clear if he ever did) it is noted that Ms Orr does not comment on this aspect of the Appellants relationship with his daughter in her findings. The Respondent subsequently relies on the EA v Secretary of State for the Home Department [2017] EWCA Civ 10 which makes clear at paragraph 30: ‘The conclusion that routine non-residential contact with two small children by their father, with whom they had never lived, could amount to exceptional circumstances to avoid the automatic deportation dictated by the 2007 Act would neuter completely both the statutory provisions and the Rules.'
19. The Respondent acknowledges Ms Orr’s finding with regard to the emotional impact that the Appellants deportation would have on his daughter here in the UK however, the Respondent does not accept that this constitutes very compelling circumstances. The Appellants daughter can rely on her mother whom she lives with for emotional and practical support in the Appellants absence. Further the Appellant can maintain contact with his daughter via moderns means of communication and visits where he can offer emotional support and advice to his daughter.
20. The Respondent contends that that Appellants deportation is proportionate. The Appellant has received 5 convictions for 21 offences including being concerned in the supply of Class A drugs. The Respondent submits that the serious nature of the Appellants offending, and his repeated offending is of significance in this case. There is a considerable public interest in the Appellants deportation and the Appellant has not demonstrated any very compelling circumstances that outweigh this interest.
[D] Conclusion
21. The R formally requests that the appeal proceeds to an oral hearing.
23. The so-called conceded position of the Secretary of State was therefore that the Judge was required to determine the merits of the case in accordance with the Devaseelan principle, namely that the findings of the Panel would form the Judge’s starting point, that the Judge would go on to consider the material now provided, leading to it being concluded it was appropriate to depart from those findings or otherwise.
24. The Judge acknowledges at [17] the starting point is the earlier decision in accordance with Devaseelan. The Judge considers the Appellant’s witness statement dated August 2023 and the other evidence provided before setting out her findings at [30]. I find that the submission the Judge went beyond the point accepted by the Secretary of State in the review to be reading something into the Judge’s findings that is not actually there.
25. The Judge noted the finding of the Panels that the Appellant could safely relocate. The Judge properly finds there was no evidence to show LR or anybody else had been looking for the Appellant and that no fresh evidence had been produced in relation to risk to the Appellant, leading to a rational finding that on the evidence the likelihood of the threat would have been lessened following the effluxion of time. That reflects the finding made by the Panel to a similar effect. The Judge does not find any risk had gone away but that there was insufficient evidence to establish a real risk existed on the facts. The Judge does not state that the Appellant can return home contrary to the accepted position. At [15 – 16] the Judge sets out the findings of the Panel in relation to risk.
26. I do not find it made out the Secretary of State made a binding concession that the Judge has gone behind without putting the parties on notice of the same, contrary to the principle of procedural fairness. Both the Panel in the Judge have found that it will be reasonable for the Appellant to internally relocate away from his home area and therefore to a place where there was insufficient evidence to show that LR will be aware that he had returned, sufficient to place him in a situation of real risk. As noted at [8] of the grounds, it cannot be said the First-tier’s Tribunal’s conclusions are irrational. The challenge is on the basis of procedural unfairness, but no such unfairness has been established on the facts.
27. In a similar vein, the criticism of the Judge’s findings in relation to family support is without arguable merit. The Judge does not find that the Appellant can return home where he will have family support but rather that he can internally relocate, in line with the finding of the Panel and lack of evidence to show otherwise, and have available to him support from his family as was previously found. There was nothing in the evidence to show that such support will be restricted and not available unless the Appellant lived at his original address, as it was not made out that support and assistance from the family could not be rendered even if they lived in a different place from the Appellant.
28. An informed reader of the determination is clearly able to understand the approach adopted by the Judge, the manner in which the evidence was assessed in relation to risk on return, and the findings made, which are supported by adequate reasons. It is not made out the Judge’s conclusions in relation to this aspect are outside the range of those reasonably open to the Judge or are rationally objectionable. I find no legal error material to the findings of the Judge made out in relation to Ground 1.
29. Ground 2, headed: medical evidence: irrationality, irrelevant considerations and inadequate reasons, asserts the Judge’s findings in relation to the medical evidence of irrational and that they take into account irrelevant considerations, are inadequately reasoned, and ultimately unclear. A number of examples are provided in the grounds at [a- e] which appear to be based upon a forensic examination of the determination and an attempt to pick holes in findings that the Judge is made.
30. I find no merit in the assertion the determination is contradictory when it is read as a whole. The Judge’s finding that Dr Isaacs did not comment on the fact that GP records did not indicate any significant mental health concerns post 18 December 2020 is factually correct. The fact in March 2023 the Appellant was receiving medication for depression is not a contradictory finding. The Judge specifically refers to “significant mental health concerns” where there is a whole range of depressive illnesses from severe depression which prevents a sufferer from even being able to function at a basic level to less serious depression which is treated with the type of intervention and medication with which the Appellant has been prescribed. The Judge accepted the Appellant had been assisted by Talking Therapies. I accept that Dr Isaacs cannot comment upon facts that did not exist but the key finding of the Judge is that having taken the Appellant’s mental health evidence into account it was not sufficient to enable him to succeed pursuant to Article 3 ECHR or to warrant a finding other than had previously found in relation to this matter, in that adequate medical treatment to assist the Appellant with his mental health needs is available in Jamaica. Claiming the Judge took into account immaterial factors is without merit. The evidence concerning the Appellant’s treatment for his mental health was provided by the Appellant and the Judge was required to take it all into account and to consider what findings could be made in relation to the same, which she did. Even though Dr Isaacs concluded the Appellant required more trauma focused intervention it is not a case of comparing what may be available in Jamaica to that in the UK.
31. The assertion the “errors” made by the Judge material is without merit as the findings in the medicolegal report were based mainly upon the Appellant self-reporting as Dr Isaacs would have asked the Appellant about his past history, presentation, and used this as the foundation for the diagnosis. GP and other medical evidence that was provided was properly taken into account by the Judge in any event.
32. There is no merit in the claim the Judge’s findings are not adequately reasoned. Reasons only to be adequate not perfect and an infirmed reader is able to understand the conclusions reached. It is a finding within the range of those reasonably open to the Judge on the evidence that there will be no risk of a breach of Article 3 ECHR, or Article 8 ECHR, on health grounds.
33. Ground 3 in relation to the Judge’s findings in relation to ‘very compelling circumstances’ claims the Judge considered immaterial matters and failed to consider material matters. At [13] of the grounds as a further example of the Appellant trying to identify a point from the Judge’s wording and then building an allegation of legal error around it. The Judge made a factual comment that the Appellant’s children had been born while he had no leave to remain [42]. That is factually correct when one looks at the chronology. It is not made out the Judge impermissibly reduced the weight to be given to the best interests of the children because of this fact. The Judge clearly accepts that the best interests of T, the only minor child, would be to remain in the family unit in the UK, although there is comment upon where the Appellant lives in relation to T. The finding of the Judge that this is not the determinative factor is within the range of finding reasonable open to the Judge on the evidence.
34. The challenge to the Judge’s assessment having carried out the balance sheet approach is without arguable merit. T’s best interests and nationality were clearly in the Judge’s mind and even if not specifically referred to that does not mean they were not factored into the account in favour of the Appellant. The Judge, when assessing proportionality, did exactly what was required in the case law and having done so concluded that removal would not be unduly harsh upon T. The Judge cannot be criticised for considering whether there would be support from other sources for T if the Appellant was removed. The Judge accepted the best interests were for the Appellant to remain, but that on the evidence as a whole his removal would not be unduly harsh upon T. That is a finding within the range of those reasonably open to the Judge on the evidence.
35. A person challenging a decision of a judge of the First-tier Tribunal must have regard to the guidance provided by the Court of Appeal in in Volpi v Volpi [2022] EWCA Civ 462 at [2], Ullah v Secretary of State for the Home Department [2024] EWCA Civ 201 at [26], and Hamilton v Barrow and Others [2024] EWCA Civ 888 at [30-31], which I take into account as if set out herein seriatim. Having done so, and for the reasons set out above, I find the Appellant has failed to establish that the Judge has erred in law in a manner material to the decision to dismiss the appeal.
36. The findings that the Appellant’s deportation from the United Kingdom as a result of his criminality is proportionate, whatever the impact upon the UK-based family or the Appellant, is a finding within the range of those reasonably open to the Judge on the evidence.
Notice of Decision
37. Appeal dismissed.

C J Hanson

Judge of the Upper Tribunal
Immigration and Asylum Chamber

28 February 2025