Tribunal decisions

The decision

IN THE UPPER TRIBUNAL
IMMIGRATION AND ASYLUM CHAMBER
Case No: UI-2024-001081
First Tier Tribunal No: HU/54602/2023
LH/05543/2023

THE IMMIGRATION ACTS

Decision & Reasons Issued:
On 29 August 2025

Before

UPPER TRIBUNAL JUDGE BRUCE

Between

YOGESH PARASHAR
Appellant
AND

SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:

For the Appellant: Mr Thompson, Senior Home Office Presenting Officer
For the Respondent: -

Heard at Phoenix House (Bradford) on 18 November 2024

DECISION AND REASONS
1. The Appellant is a national of India born in 1974.
2. In a decision dated 18 December 2023 the First-tier Tribunal (Judge Hollings-Tennant) dismissed his appeal, brought on human rights grounds, against a decision by the Secretary of State to deport him. On 2 August 2024 Upper Tribunal Judge Gill granted the Appellant permission to appeal to this Tribunal on limited grounds.
3. Notice of hearing was sent to the Appellant’s then representatives, David Gray Solicitors LLP, on the 17th of October 2024. On 31 October 2024 the firm contacted the Tribunal to say that they are no longer representing the Appellant, and that he would be attending the hearing on his own. A letter confirming this was received from David Gray LLP on 4 November 2024. On 5 November 2024 further directions were sent directly to the Appellant. The hearing convened before me on 18 November 2024 at 10.00am. There was no appearance by the Appellant. I put the matter back in the list and asked the clerk to try and contact the Appellant. The clerk emailed the Appellant at the address we have on file, that contained by his solicitors in the letter received on 4 November 2024. We received no response. By 12.10pm the other matter in my list was finished. I asked the clerk to check with Field House whether we had received any notification that the Appellant was running late: no calls had been received. I had to consider whether to proceed in the Appellant’s absence. I was satisfied that the Appellant had had a good notice of the hearing. That was because the letter from David Gray Solicitors LLP makes clear that he was aware of this hearing. The letter recites the date, time and place, and states: “I write to inform you that the Appellant has decided to represent himself in these proceedings”. In the circumstances I concluded that the Appellant had had a fair opportunity to attend and advance his case, and that in the circumstances I could justly determine the appeal, having regard to the grounds of appeal drafted on his behalf by counsel on 29 December 2023.
4. I apologise to the parties for the delay there has been in this decision becoming available. I had an accident a few days after the hearing which meant I was not able to return to work until 6 January 2025. I can confirm that in making this decision I have had regard not only to all of the relevant written papers on the case file, but to my own detailed written notes taken on the day of the hearing.
Background
5. The Appellant entered the United Kingdom on 7 May 2006 with entry clearance as a spouse. He was eventually granted indefinite leave to remain. It is not in dispute but he has lived here continually throughout that entire period. Nor is it in dispute that he has a significant family life in the United Kingdom with his partner and son. He met his wife in 2009. She is a nurse who works for the NHS, and has had indefinite leave to remain since 2010.
6. The appellant himself as a doctor, although at the date of the hearing before the First-tier Tribunal his license to practice had been suspended by the General Medical Council. Before his conviction, and the resulting action taken against him by the regulatory body, the appellant worked full-time in the NHS.
7. The Secretary of State intends to deport the Appellant pursuant to section 32 of the UK Borders Act 2007. That is because he is a ‘foreign criminal’, that is to say he is a national of a country other than the United Kingdom, and he has been convicted of an offence and sentenced to 12 months or more in prison. The conviction in question was handed down on 8 June 2022 at Newcastle upon Tyne Crown Court. The Appellant was found guilty of dangerous driving and driving with excess alcohol. He was sentenced to 12 months imprisonment and disqualified from driving for 30 months.
The Decision of the First-tier Tribunal
8. The Tribunal begins by identifying the matters in issue before it. The Secretary of State recognises that Article 8 is engaged. She accepts that the Appellant has a genuine and subsisting parental relationship with his son, and that his relationship with his partner similarly amounts to an Article 8 family life. Having had regard to the exceptions to the automatic deportation provisions, as set out at section 117C of the Nationality Immigration and Asylum Act 2002, the Secretary of State accepted that it would be unduly harsh to expect the Appellant’s family to relocate to India. Her case was instead to put on the basis that it would not be unduly harsh to expect them to remain in the United Kingdom without him. In respect of whether there were here “very compelling circumstances” rendering the decision to deport disproportionate, the Appellant pointed to his long service as a doctor in this country, and the fact that his conviction arose from his addiction to alcohol, for which he was seeking treatment. In response the Secretary of State contended that treatment for alcohol addiction is available in India. In respect of private life, it was accepted that the Appellant certainly has one in the United Kingdom. He has not however lived here for more than half its life and so could not meet the requirement of the relevant rule.
9. Insofar as is relevant to this appeal, the Tribunal found as follows. In its assessment of family life the Tribunal accepted that the Appellant was currently acting as the primary carer for his son. This was because, following his suspension by the GMC, his wife had become the main breadwinner. The Tribunal was however satisfied that both parents are actively involved in the provision of childcare. It found that the Appellant’s partner and child would simply have to adapt should he be deported. In so finding the Tribunal specifically had regard to the evidence of an independent social worker to the effect that this small family unit are very interdependent upon one another. Given her length of residence in the United Kingdom, the Tribunal thought it likely that the Appellant’s partner would have friends to whom she could turn if necessary.
Error of Law: Discussion and Findings
10. In her detailed reasoned decision of 2 August 2024 Upper Tribunal Judge Gill refused permission on the Appellant’s grounds 1 to 3. Her grant of permission was confined to grounds 4 and 5 which she was “just about” persuaded to be arguable.
11. Ground 4 is that in its application of the ‘undue harshness’ test, the First-tier Tribunal made findings that were unduly speculative with no evidential basis. The first point under this heading concerns the Tribunal’s reasoning on how the Appellant’s son was affected when his father was sent to prison. The evidence of the appellant and his wife was that the child became anxious and missed his father. At its paragraph 41 the tribunal says as follows:
“his anxiety in this regard is likely to have been exacerbated by the fact that his parents lied to him and told him his father was working away from home. It is perhaps understandable that they did not want to tell him the truth or have him visit his father in prison but this is likely to have contributed to his anxiety as he could not understand why his father was unable to return to the family home during that period”
12. I accept that there was no clear evidential basis to support this reasoning; at least if there was, I have not seen it. It does not for instance feature in the report of the independent social worker. It is however inevitable in cases like this that the Tribunal must engage in some degree of speculation. No-one - not a parent, not an independent social worker, not a psychologist - is able to predict with any degree of certainty how a child will respond to a change in circumstance. All anyone can do is look at the child in question, look at the proposed change in circumstances, and make an informed judgement. Here, the Tribunal squarely finds that the Appellant’s deportation will have a detrimental impact on his son. It finds, at its paragraph 36, that through no fault of his own this little boy will be deprived of daily face-to-face contact with the father who is currently providing him with practical and emotional care. The Tribunal “entirely” accepts that video calls, or telephone contact, is no substitute for any of this. Looking at the impugned passage in the context of all of these detailed findings I am not satisfied that it amounted to unreasonable speculation, or that it played any decisive, or even significant, role in the overall conclusions reached. Those conclusions were that there will obviously be a detrimental impact on this child, but taking all of the evidence into account, it will not be of such severity that it meets the elevated threshold required here: MK (Sierra Leone) [2015] INLR 563.
13. The second criticism made in ground 4 relates to the Tribunal’s finding that the Appellant’s partner would be able to look to friends, or at least one particular friend, to help her with childcare. It is submitted that there was no evidence to this effect, and that it was therefore not a finding open to the Tribunal. I wholly disagree. In this part of its decision the Tribunal was specifically responding to the case put on behalf of the Appellant: that he, his wife and son effectively exist in some kind of exceptional isolation, with nobody but each other for support. The Tribunal rightly rejected that portrait of this family life. This is a family who have lived in the United Kingdom a long time. Both mother and father have worked, and the son attends school. They will, in the normal way of things, have developed relationships with others outside of their immediate circle: that is the essence of the private life that Counsel elsewhere relied upon. Moreover there was specific evidence that the Appellant’s partner had a friend who had helped the family while the Appellant was in prison. It was not unreasonable for the Tribunal to suppose that this friendship would continue. I would add, that although this does not form part of the First-tier Tribunal’s reasoning, it is difficult to see the materiality of a dispute about childcare in the context of a child who is now attending secondary school and is presumably able to travel independently and spend some time alone in the family home.
14. Ground 5 is that the judge imposed a notional comparator test, contrary to the guidance of the Supreme Court in HA (Iraq) [2022] UKHL 72. The grounds here make reference to two passages in the decision. The first is that paragraph 41 where the Tribunal says this of the Appellant’s son: “[his] emotional reaction to finding out that his father is facing deportation is also entirely understandable but does not suggest a greater degree of vulnerability or acute need for support”. The second passage appears in paragraph 63 where this conclusion is expressed:
“Whilst the appellant finds himself in a very unfortunate position, there is insufficient evidence to demonstrate that the impact on the family goes beyond that which would ordinarily be expected when a person is facing deportation”
15. Taken out of context, I accept that either of these passages might be thought to reveal an error. Reading the decision as a whole, however, I am not satisfied that the Tribunal misdirected itself, or that it misunderstood its task. My starting point is that the Tribunal expressly directs itself to the decisions of both the Court of Appeal and the Supreme Court in HA (Iraq). I have to assume that this expert tribunal understood the effect of these decisions on an appeal such as this one.
16. I then move on to reading those passages in context. The first appears in response to the evidence of Mr Horrocks, an independent social worker. The import of Mr Horrocks’ report was that this is a particularly vulnerable child who will suffer particular problems if his father is removed. Looking at the reasoning as a whole I am satisfied that all the Tribunal is doing in the passage cited is rejecting that case. It is not, contrary to the suggestion in the grounds, looking for a benchmark against which to judge the adverse impact on this child. It is simply evaluating whether the MK (Sierra Leone) threshold has been met, for the reasons given. It is worth noting that the Tribunal considers Mr Horrocks’ evidence, and that of the child’s parents, in detail and at length. The Tribunal recognised Mr Horrocks’ expertise and accepted much of what he had to say. It did not however accept all of his conclusions. For instance, Mr Horrocks had placed considerable weight on the possibility that if his father were to be deported, the child may have to leave his current school, which is feepaying. The Tribunal accepted that this may be the case, but not that it would have the drastic consequences feared by Mr Horrocks: the Tribunal points out that the boy had already moved schools fairly recently, with no apparent difficulty, and as it puts it, it cannot be said to be ‘unduly harsh’ to expect a child to attend state school. The Tribunal further accepted Mr Horrocks evidence about the difficulties that the Appellant’s alcoholism and past had caused the family, but found the conclusions that he drew from this history to be undermined by his failure to recognise, in effect, that mother and son’s relationship could improve following the “removal of these divisive and emotionally draining factors”. Similarly, at its paragraph 41 the Tribunal is accepting that the child has been anxious about his father’s absence from the family home, but not that this level of harm would meet the requisite test.
17. The passage cited from paragraph 63 of the decision is undoubtedly the strongest point in the grounds, and Judge Gill was quite right to think it arguable that this could be an error in approach. For the reasons explained in HA (Iraq), undue harshness should not be evaluated as a competition in misery: it is either severely bleak for the child, or it is not. There is no call for a ‘notional comparator’. Again, however, context is everything, and the true meaning of paragraph 63 can only be properly understood when one looks at the decision as a whole. The decision follows a clear structure. From paragraphs 28 to 44 the Tribunal considers whether the Appellant can meet the requirements of the family life exception, i.e. ‘undue harshness’. From paragraphs 45 to 60 it then conducts an unimpeachable balancing exercise of the type required by section 117C(6) NIAA 2002. Then under the heading ‘summary and conclusions’ it reduces all of the foregoing into five succinct paragraphs. The first, [61], tells us that the appeal has not succeeded. The second, [62], explains why the elevated threshold of ‘unduly harsh’ was not met. The third, [63], distils the reasons why the Appellant could not succeed in a holistic balancing exercise, taking into account all of the factors going in his favour, and balancing those against the significant public interest in his deportation. In other words, paragraph 63 is a summary of why the Appellant has lost. The test in the statute is whether “there are very compelling circumstances over and above the exceptions” , and it is in this context that the Tribunal makes the remark that it does: “there is insufficient evidence to demonstrate that the impact on the family goes beyond that which would ordinarily be expected when a person is facing deportation”. There is no error in that. It was not here discussing undue harshness.

Decisions
18. The decision of the First-tier Tribunal is upheld, and the appeal is dismissed.
19. Pursuant to the Order of Judge Sheridan, there is no anonymity order in place.

Upper Tribunal Judge Bruce
Immigration and Asylum Chamber

20th January 2025