Tribunal decisions

The decision

IN THE UPPER TRIBUNAL
IMMIGRATION AND ASYLUM CHAMBER
Case No: UI-2024-001926

First-tier Tribunal No: EA/02937/2023

THE IMMIGRATION ACTS

Decision & Reasons Issued:
On 26 June 2025

Before

UPPER TRIBUNAL JUDGE KEITH

Between

Samson Prelipcean
(NO ANONYMITY ORDER MADE)
Appellant
and

The Secretary of State for the Home Department
Respondent

Representation:
For the Appellant: Mr D Bazini, Counsel, instructed by Equity Justice Solicitors
For the Respondent: Mr S Walker, Senior Home Office Presenting Officer

Heard at Field House on 11th June 2025

DECISION AND REASONS
1. This is the remaking of the decision in the Appellant’s appeal against the Respondent’s refusal of his human rights claim, in the context of a deportation order having been made against him, as a ‘foreign criminal’, as defined in Section 117D of the Nationality, Immigration and Asylum Act 2002.
2. The hearing had previously been adjourned pending the Appellant obtaining an independent social worker report, relevant to the effect of deportation upon his qualifying children and wife.
Background
3. The background is explained to a limited extent in the error of law decision, which is annexed to this decision although events have occurred since that date. As touched on in the error of law decision, the Appellant is a foreign criminal to which automatic deportation provisions apply, as a result of having received a 12-month prison sentence for possession of an imitation firearm. He was convicted on 30th June 2023 and originally appealed under the Immigration (Citizens’ Rights Appeals) (EU Exit) Regulations 2020. However, for the purposes of this appeal, it is agreed that I am considering the Appellant’s appeal on human rights grounds only. The context is that the Appellant has a wife, Raluca-Iulia Prelipcean, who has indefinite leave to remain, as did the Appellant prior to the deportation order having been made against him. They married in Romania and are Romanian nationals who came to the UK between 2015 and 2017. They have three children, an eldest daughter who is a Romanian national but now a qualifying child by virtue of her date of birth, being born in May 2018. It is unnecessary to name her. They have an eldest son, born in October 2020, who is a British citizen and who has significant educational needs, which I will come on to discuss, and a younger son, born in June 2024, also a British citizen. All three children and the Appellant’s wife are therefore ‘qualifying’ relatives for the purposes of Section 117D of the 2002 Act. The Appellant was released from prison and granted bail to reside with his family members on 15th August 2023, having previously lived with them.
The hearing
None of the Appellant’s evidence disputed
4. The Appellant’s representatives provided a paginated and indexed bundle, running to 126 pages. I refer to documents within it, as “X/AB.” An important aspect of this appeal is that Mr Walker, on behalf of the Respondent, disputed none of the Appellant’s evidence. The expertise of the author and contents of the independent social worker report, on which the Appellant relies, were accepted in their entirety. The facts which I have found are also based on the unchallenged evidence of the Appellant and his wife who provided witness statements and who gave brief additional evidence by way of examination-in-chief by Mr Bazini. I do not recite their evidence except to explain why I have reached my findings.
Issues in the case
5. I also discussed and agreed with the representatives the issues in this case. I do not recite the law in detail except to remind myself that the provisions of Sections 117B and C of the 2002 Act apply by virtue of the Appellant’s offence. The phrases “unduly harsh” and “very compelling circumstances,” referred to in Sections 117C(5) and (6) are not a matter of judicial discretion. They are statutory tests, mandated by parliament. Case law has already indicated that the test of whether an effect would be unduly harsh is a very high standard indeed and it is commensurate to it being “bleak.” I also remind myself that the starting point is that deportation of foreign criminals is in the public interest and that this requires the Appellant’s deportation unless either of the two exceptions is met. The question of whether the effect of deportation would be unduly harsh is a hypothetical one, i.e. regardless of whether the Appellant’s family would join him in returning to Romania if he were deported, although as Mrs Prelipcean candidly accepted, in the event of the Appellant’s deportation she would, with significant reluctance, join him with their children in Romania. Mr Bazini confirmed that the Appellant was not relying upon Exception 1, specified in Section 117C(1)(4) of the 2002 Act, namely in relation to private life because the Appellant had not been lawfully resident in the UK for most of his life. There is no suggestion that he has ever been present in the UK unlawfully, rather he only entered the UK in 2015 when he was 20 years old. The focus is therefore upon the Appellant’s right to respect for his family life which is once again not a discretionary test by this Tribunal, but rather by virtue of the ECHR, which parliament has committed this Tribunal to applying. I also bear in mind Section 55 of the Borders, Citizenship, and Immigration Act 2009, once again mandated by parliament, which requires me to consider the best interests of the Appellant’s minor children.
Findings
6. The Appellant entered the UK in 2015 exercising treaty rights in the UK. He later married his now wife, Mrs Prelipcean on 23rd July 2017 in Romania. He is from a rural village of around 400 to 500 houses, where his parents still live. Mrs Prelipcean was born and brought up in the city of Cluj-Napoca, where her parents live in a small two-roomed flat. Her mother is a dinner lady. Her father is unable to work because of his epilepsy. The Appellant’s mother is a homemaker whilst his father does occasional odd jobs. His parents lived in a small two-room house. The Appellant and his wife last visited Romania on holiday when the eldest son was a small child, so in or around late 2020 or 2021. They stayed for a brief period of five days, from Monday to Friday, including visiting Mrs Prelipcean’s parents for half a day.
7. Mrs Prelipcean was granted indefinite leave to remain on 14th December 2020 under the EU Settlement Scheme and the Appellant was granted similar status on 24th April 2020. Mrs Prelipcean has not worked since the birth of the couple’s first child in 2018. She previously worked as a waitress. Except for the period of his imprisonment, the Appellant has worked in the construction industry on a self-employed basis. They rent a property where they live in London. The eldest child (a daughter) is attending primary school and is said to be progressing well. The eldest son has significant educational and behavioural challenges, which are set out in further detail below. The eldest daughter is unable to speak or write Romanian and the same is true of the eldest son (the youngest is a baby).
8. The Appellant gave unchallenged evidence, and I find, that if they were to move to Bucharest they would not manage financially as a family, as the Appellant would not be able to find work immediately. Rents were expensive relative to wages, and they would not be able to pay for the children’s education, let alone finding a school to cater for the eldest son’s educational needs. Whilst there were schools for physically disabled children, special educational needs are rarely met. The couple confirmed that neither of their respective parents would either be able to provide accommodation, given the small sizes of their own homes. Due to their relative poverty, the parents would not be able to provide any financial support to the Appellant’s family. Whilst it is accepted that the Appellant would eventually be able to find work in his role as a plumber this would not be immediate and in the meantime the couple would be at risk of destitution.
9. In terms of the family roles, whilst the Appellant works on a full-time basis and Mrs Prelipcean is a full-time mother, she wakes up early in the mornings because of the needs of the children, he helps her to look after the children every morning before he goes to work and when he returns from work he provides additional support such as preparing dinner and putting the children to bed. He provides for everything financially, including rent, utility bills, electricity, gas and water. He also changes the nappies of the youngest child and puts him to sleep.
10. In the event of separation (namely the family staying in the UK while the Appellant was deported to Romania) Mrs Prelipcean has candidly explained how she would not be able to manage emotionally or financially without her husband. I reiterate in making this finding that none of this evidence has been challenged by Mr Walker.
Findings concerning the appellant’s eldest son
11. The eldest son is registered with, and about to start, mainstream school in September 2025. However, as preparation for that, he is registered with his local NHS authority for the purposes of speech and language therapy. A Social Communication Assessment Pathway (“SCAP”) report dated 18th September 2024 begins at 37/AB. This confirms a formal diagnosis of autism spectrum disorder together with global developmental delay or GDD and severe speech and language difficulties. That recommends a management plan both at home and school. A consequence of the child’s ASD is that he is, to an extent, living in his ‘own bubble’ with significant difficulties in communicating with others or sharing. He also struggles with change and his attention and listening is “severely disordered”, as is his receptive, expressive language, social development and play skills. Aged four he could not follow contextual or single word instructions and communicated needs by pointing his hand and objects to adults. He did not, for example, respond to his own name and showed significant difficulties in taking turns. He will avoid looking at his mother when he is upset. He goes to his father to seek comfort and does not use words to answer or ask questions or for emotions and he mostly plays on his own. He also uses repetitive behaviour such as singing a song over and over again and counting repetitively. His manipulation skills in terms of holding things are also limited, such as in his ability to pick up pencils and crayons. The SCAP summary was that although he had age appropriate visual and self-care skills, there was a significant delay in his speech, language and interactive skills.
12. The Appellant also relied upon a separate independent social worker report of Ms Sarah Edwards. Her expertise is unchallenged. She was careful in her report not to express a view on the availability of education provision in Romania. However, she made clear her concerns in the event that the eldest son is separated from the Appellant, or in the event that the family is required to move together to Romania. She described at paragraph 2.1, 81/AB, the genuine and subsisting relationship between the Appellant and his children and separation from them resulting in significantly detrimental impact in terms of their emotional wellbeing, educational attainment and practical arrangements within the family home. The daughter has a range of friendships in the UK and is unable to read Romanian so that her lack of fluency would impact on her ability to participate in education.
13. The social worker acknowledged the significant additional needs of the eldest son and the impact on the parental attention available to the other children. Whilst the family were working with and had identified a UK primary school at which the eldest son could attend to meet his needs, Romania appeared to have a far more limited level of resources to meet those needs. All three children are very close to their father, value his input and the time they spend together. In particular, the eldest son struggles to communicate verbally and seeks appropriate and emotional reassurance from his parents by touching them. The eldest son was described as having high levels of energy which the social worker anticipated was likely to be challenging in a classroom environment and which the parents were having to manage.
14. The social worker provided measured evidence, at paragraph 10.3.6, 95/AB, that separation from a care giver is not necessarily traumatic or disruptive for a child, particularly where planned, but forced or involuntary separation was generally accepted as damaging to children. Moreover, Mrs Prelipcean would have to try and make up the absence of any income by finding work herself or rely entirely on benefits, which would then significantly increase the burden on the UK taxpayer. It would be unlikely that the couple would be able see one another any time soon, given that Mrs Prelipcean and the children would have to travel to Romania to visit the Appellant because of a travel ban, and their lack of money to do so.
15. In the event of the scenario of the family moving to Romania, none of the children could speak Romanian fluently or read or write and that would have a serious impact on their ability to integrate. It was unclear what the professional services were available for the eldest son.
16. Separately, I was referred at 111/AB to a Disabilities and Education Access Report produced by the “Code for Romania” NGO. Once again, the material within this report was unchallenged by Mr Walker. It spoke of the significant resource challenges within Romania, beginning at 122/AB. There was a lack of specialist support teachers, with schools frequently not having such teachers available. Instead only children with severe disabilities were enrolled in special schools and the mainstream schools’ teachers had only initial training and working with children with disabilities and special educational support was often superficial. The report indicated that many children ended up dropping out of school, few passed any exams and very few schools in rural areas had any support teachers.
17. Within the context of this evidence, I find that in the ‘stay’ scenario, namely whereby Mrs Prelipcean remains with the three children and the Appellant is deported, the effect on her and the children would indeed be bleak. Mrs Prelipcean does not work and has not worked since 2018. She lives in private rented accommodation, has a young toddler, together with the two older children, one of whom, the eldest son, has significant educational, behavioural, and developmental needs. She would, of course, potentially have access to support from a local council and benefits, although she would do so as a lone woman, at the risk of homelessness, most likely unable to work given her caring responsibilities for her three children, and without any wider personal support network. Any parental attention that she is able to give to all three children, shared with her husband, would be refocussed on the eldest son, to the detriment of the other two children, given his significant needs. She would also be without the emotional support of the Appellant. She barely coped during the Appellant’s imprisonment and that was before the birth of their youngest child. I am satisfied that the effect of deportation would be unduly harsh in the ‘stay’ scenario.
18. I turn to the ‘go’ scenario whereby the entire family move to Romania. The practical difficulty is that while the Appellant would no doubt attempt to work, he has given unchallenged evidence that he would find it very difficult to find such work, that the family would be unable to afford accommodation in Bucharest where there may be special educational provision and would be unable to access any financial support or accommodation via their respective families. There is a real risk that the family would be destitute. I find that the effect upon the children, particularly the eldest son with such significant needs, would be devastating, given the limitations within the Romanian education system, even in Bucharest and the family’s likely poverty. In this context, I am also satisfied that the effect of deportation would be unduly harsh.
19. I therefore conclude that the Appellant meets Section 117C(5) of the 2002 Act. That means that there is not a public interest in his deportation. As I must, I have also considered Section 117B. There is no suggestion that the Appellant cannot speak English. He has worked and has not been a drain upon the public purse. He has never been in the UK unlawfully, nor has his wife, and they have developed their family life together with their three children lawfully. In the circumstances, and absent deportation being in the public interest by virtue of the Appellant’s criminal offending, I am satisfied that refusal of the Appellant’s human rights claim is disproportionate and so breaches the Appellant’s right to respect for his family life under Article 8 ECHR.

Notice of decision
20. The Appellant’s appeal on human rights grounds is upheld.

J Keith

Judge of the Upper Tribunal
Immigration and Asylum Chamber

23rd June 2025

ANNEX: ERROR OF LAW DECISION

IN THE UPPER TRIBUNAL
IMMIGRATION AND ASYLUM CHAMBER
Case No: UI-2024-001926

First-tier Tribunal No: EA/02937/2023

THE IMMIGRATION ACTS

Decision & Reasons Issued:

…………………………………

Before

UPPER TRIBUNAL JUDGE KEITH

Between

Samson Prelipcean
(NO ANONYMITY ORDER MADE)
Appellant
and

The Secretary of State for the Home Department
Respondent

Representation:
For the Appellant: Mr D Bazini, Counsel, instructed by Equity Justice Solicitors
For the Respondent: Mr S Walker, Senior Home Office Presenting Officer

Heard at Field House on 2 July 2024

DECISION AND REASONS
1. These written reasons reflect the full oral decision which I have to the parties at the end of the hearing.
Background and the decision under challenge
2. The appellant appealed against the decision of First-tier Tribunal Judge Buckwell, promulgated on 14th March 2024, who dismissed his appeal on human rights grounds in the context of a deportation order having been made against him. He is a “foreign criminal” to which automatic deportation provisions apply, as a result of his receiving a 12-month prison sentence for possession of an imitation firearm. The appellant was convicted on 30th June 2023 and the appellant appealed pursuant to regulation 6 of the Immigration (Citizens Rights Appeals) (EU Exit) Regulations 2020. In addition, the respondent consented to the appellant raising additional human rights grounds for the purposes of section 120 of the Nationality Immigration and Asylum Act 2002. Specifically, the appellant has a Romanian wife and at the time of the hearing, two young children, then aged six years and four years, when the appellant’s wife was pregnant (she has since given birth to a third child). It is not argued that the six-year-old daughter has any particular medical or other needs, but the four-year-old boy, said to be a British national, was also said to be awaiting diagnosis for attention deficit hyperactivity disorder. It was accepted that the couple had entered the UK in 2015 and had married in 2017. They both had lawful leave to remain before the deportation decision was issued against the appellant.
The Judge’s decision
3. I do not more than briefly refer to the Judge’s decision and grounds of appeal, in light of the respondent’s concession, to which I will refer later. In his findings, at §54, the Judge noted that that the younger brother was a British citizen whilst the older daughter was not, so that she was not a “qualifying child” for the purposes of section 117D of the 2002 Act. However, for reasons of pragmatism, the Judge did not seek to distinguish between the two. Their mother, the appellant’s wife, had ILR and so was a qualifying partner. The Judge recited the criminal Judge’s sentencing remarks at §56 and noted the low risk of the appellant reoffending at §59. The Judge went on to consider Exceptions 1 and 2 (sections 117C(4) and (5) of the 2002 Act). In respect of Exception 1, at §64 the Judge found that the appellant had not been lawfully resident in the UK for most of his life and there would not be very significant obstacles to his integration in Romania. In relation to Exception 2, the Judge reminded himself of the relevant case law, including KO (Nigeria) [2018] UKSC 53 and HA (Iraq) [2022] UK SC 22. The Judge concluded at §68 that a “choice to return to Romania” for the appellant’s wife and children would not be unduly harsh (the so-called “go” scenario). The Judge recorded that the appellant appeared to accept that the required education for the appellant’s son may well be available in Bucharest. The Judge considered the so-called “stay” scenario of the appellant returning alone to Romania, at §69, as the appellants’ wife had accommodation and financial support while the appellant was in prison. The judge considered at §70 onwards whether there were very compelling circumstances and found that that test was not met. The Judge dismissed the appellant’s appeal on Article 8 grounds.
The appellant’s appeal and the respondent’s concession
4. I do not recite in full the grounds of appeal, on which permission was granted, in light of the respondent’s concession that there was a material error of law, such that the Judge’s decision is not safe and cannot stand.
5. On behalf of the respondent, Mr Walker conceded that the Judge erred in law, in failing to analyse adequately whether the effect of deportation would be unduly harsh on the appellant’s qualifying partner and child, at §§68 and 69. The respondent in particular was concerned about the effect on the qualifying child, said to have particular educational and social needs and how these could be provided either in the “go” or the” stay” scenarios of deportation, particularly where the evidence was that the family could not afford to live In Bucharest and there was no evidence of available educational support in the more rural areas to which the couple claimed that they would need to relocate in Romania. Mr Walker conceded that the error was material.
6. For the benefit of the remaking judge, it is accepted that the appellant has not been lawfully resident in the UK for most of his life for the purposes of Exception 1 and through that lens, in considering very compelling circumstances. It is accepted that the appellant’s wife is a qualifying partner, and their youngest two children are British citizens. It is further accepted that the appellant is a foreign criminal for the purposes of section 117D of the 2002 Act.
7. The partes agree that there is no aspect of Appendix EU which needs to be considered. This is an article 8 appeal which arose as a result of the respondent consenting to the appellant raising the issue as a new matter for the purposes of section 120 of the 2002 Act. As a consequence, these matters are not referred to in the respondent’s refusal decision.
8. The appellant confirms that no appeal is pursued on the basis that the deportation decision breaches any rights which he has or may or have under the Withdrawal Agreement, or that it is not in accordance with section 3(5) of the Immigration Act 1971, the appeal rights referred to in the refusal decision, other than in respect of Article 8 ECHR. The sole issue is whether the decision to refuse the human rights claim breaches the appellant’s Article 8 rights.
Notice of Decision on Error of Law
Judge Buckwell’s decision promulgated on 14th March 2024 contained errors of law, such that it is not safe and cannot stand. I set it aside, without preserved findings, but noting what is not in dispute. Remaking is retained in the Upper Tribunal, for the reasons set out below.
Remaking
9. I turn to the question of the re-making and whether to remit the matter to the First-tier Tribunal or to retain in the Upper Tribunal. I bear in mind paragraph 7.2 of the Senior President’s Practice Statement and the well-known Court of Appeal authority of AEB v SSHD [2022] EWCA Civ 1512. I canvassed the views of the representatives. Both were neutral. In relation to §7.2(a), of the Practice Statement, this is not a case where it is suggested that either party has been deprived of a fair hearing. In relation to §7.2(b), and the nature of the scope of any judicial fact-finding necessary for a fair disposal of the hearing, both representatives accepted that the issues in dispute, while serious, are narrow and that the extent of fact-finding is correspondingly limited. I therefore decided to retain remaking in the Upper Tribunal. I agreed the directions below after detailed discussions with the representatives, who took a detailed note so that it is not necessary for them to await the written directions before complying with them.
The following directions shall apply to the future conduct of this appeal:
9.1. The Resumed Hearing will be relisted at Field House on the first available date after 2nd December 2024, time estimate of four hours, with a Romanian interpreter, to enable the Upper Tribunal to substitute a decision to either allow or dismiss the appeal.
9.2. On or before 24th September 2024, if the appellant so wishes rely on it, he shall file and serve any independent social worker report. The parties are at liberty to apply and are expected to cooperate with one another if there any difficulties in the production of the report in applying for revised directions, proactively. Any report must be filed on CE-File (which can never be used for service). The appellant shall serve the report on the respondent using both of the following email addresses: [Home Office]; and [Upper Tribunal IAC].
9.3 On or before 8th October 2024, the respondent shall confirm in writing to this Tribunal and to the appellant whether it accepts or disputes the contends of any such social worker report and if so disputed, provide the particular details of the issues in dispute.
9.4 On before 22nd October 2024, if the respondent has disputed the report and provided particular details, any expert can comment on, or seek to address those concerns in writing, which shall be filed and served by the appellant.
9.5 On or before 5th November 2024, the appellant shall file with Upper Tribunal (via CE-File) and serve upon the respondent’s representative (not via CE-File) a consolidated, indexed, and paginated bundle containing all the documentary evidence upon which he intends to rely. Witness statements in the bundle must be signed, dated, and contain a declaration of truth and shall stand as the evidence in chief of the maker who shall be made available for the purposes of cross-examination and re-examination only.
9.6 The parties are reminded that they must comply with the Practice Direction for the Immigration and Asylum Chamber of the Upper Tribunal: Electronic filing of documents online – CE-File – Courts and Tribunals Judiciary. They must lodge any application or documents by the CE-File E-filing service. Documents uploaded to CE-File must have a file name which reflects their contents and any application (whether for urgent consideration, relief from sanctions or otherwise) must be clearly identified as such. The bundle must comply with the President’s Guidance on the Format of Electronic Bundles in the Upper Tribunal (IAC), including: being limited in file size, with proper pagination, indexing, hyperlinking, bookmarking and in a format which is text searchable.

J Keith

Judge of the Upper Tribunal
Immigration and Asylum Chamber

2nd July 2024