Tribunal decisions

The decision

IN THE UPPER TRIBUNAL
IMMIGRATION AND ASYLUM CHAMBER
Case No: UI-2024-002004

First-tier Tribunal No: HU/01962/2023

THE IMMIGRATION ACTS

Decision & Reasons Issued:
On the 17 March 2025

Before

DEPUTY UPPER TRIBUNAL JUDGE ALIS

Between

MUHAMMAD TAHIR RASOOL
(no ANONYMITY ORDER MADE)
Appellant
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:

For the Appellant: Mr Ahmed, Counsel
For the Respondent: Mr Tufal, Senior Home Office Presenting Officer

Heard at Field House on 26 February 2025

Order Regarding Anonymity

No anonymity order is made as none was requested or required

DECISION AND REASONS

1. The Appellant, a Pakistani national aged 44 years of age, had been served on 12 May 2015 with a deportation notice with reference to section 32(5)of the UK Borders Act 2007 following his sentence on 11 April 2012 when he received 39 months. On 24 May 2019 he was sentenced to a total of eight years for offences contrary to Section 19 of the Serious Crime Act 207. The Appellant appealed both deportation notices and his appeal came before the First-tier Tribunal (hereinafter referred to as the FTT) and in a decision promulgated on 20 March 2024 the FTT dismissed his appeal.

2. Permission to appeal was initially refused but Deputy Upper Tribunal Judge I Lewis granted permission to appeal on 2 June 2024 finding it arguable there had been a material error because:

“2. The Grounds raises two matters in respect of procedure: the First-tier Tribunal Judge’s decision not to grant an adjournment pursuant to the application made at the commencement of the hearing is challenged; it is also pleaded that the Judge erred in not treating the Appellant as a vulnerable adult because of his mental health issues. Further or alternatively, the Grounds plead that the Judge erred in his approach to ongoing family proceedings.

3. It is arguable that the First-tier Tribunal Judge erred in law in failing to consider the Appellant’s claim to have initiated contact proceedings in the family court at Reading, in accordance with the guidance in RS (immigration and family court proceedings) India [2012] UKUT 00218 (IAC). In particular, as per the headnote:

“i) Is the outcome of the contemplated family proceedings likely to be material to the immigration decision?
ii) Are there compelling public interest reasons to exclude the claimant from the United Kingdom irrespective of the outcome of the family proceedings or the best interest of the child?
iii) In the case of contact proceedings initiated by an appellant in an immigration appeal, is there any reason to believe that the family proceedings have been instituted to delay or frustrate removal and not to promote the child’s welfare?”

4. Notwithstanding that the Appellant’s evidence before the First-tier Tribunal in respect of family law proceedings was extremely limited, and seemingly not supported by documentary evidence - there was no finding that he had not initiated proceedings in respect of his daughter. (It appeared that he was not seeking to establish contact with his stepchildren (paragraph 29).)

5. Although the Appellant acknowledged that he had not had contact with his wife or child for 18 months (paragraphs 21 and 28), and notes on file in respect of the earlier adjournment requests suggest that the Appellant, in late 2023, did not even know the whereabouts of any of the children, and that in all such circumstances there was nothing wrong in principle in the Judge concluding that Exception 2 did not apply on the basis that there was not a subsisting relationship with a qualifying partner or a genuine and subsisting parental relationship with a qualifying child (paragraph 61) - the engagement in contact proceedings arguably was relevant to an evaluation of ‘very compelling circumstances’ beyond Exceptions 1 and 2.

6. There is little merit to the challenge to the Judge’s decision to proceed with the hearing as listed. The Appellant had been afforded ample opportunity to obtain representation and to obtain and file any evidence upon which he wished to rely. Earlier applications for an extension of time to file evidence, made at a time when the Appellant had representation, had been refused in part because such applications had not provided sufficient detail of what efforts had been made to obtain medical evidence, or to establish the whereabouts of the children with whom it was claimed the Appellant wished to re-establish contact, and in part because no timescale for obtaining such evidence had been provided. Nonetheless, when the appeal came before First-tier Tribunal Judge Buckwell on 5 January 2024 the Appellant requested an adjournment which was granted to 29 February 2024 – thus affording the Appellant a further 8 weeks to put his case in order.

7. On 29 February 2024 the Appellant applied for a further adjournment (Decision at paragraphs 11-12). This was opposed by the Respondent (paragraph 13). The Judge deliberated on the matter, refused the application, and determined that the appeal should proceed for the reasons set out in the Decision (paragraph 14).

8. The Grounds in this context amount to little more than a recitation of trite principle and case law, and a series of unsubstantiated assertions as to a lack of fairness, or proper consideration. No reasoned challenge is articulated.

9. However, in circumstances where it is arguable that a different approach should have been taken in respect of the Appellant’s claim to have initiated proceedings in the family courts, it may be arguable that this should have also informed the issue of whether or not the appeal was ready to proceed, or whether specific Directions were required in respect of the family proceedings.

10. The Grounds do not set out any reasoned challenge in respect of the issue of vulnerability. The Grounds amount to no more than this: “It is submitted that the Judge failed to treat the Appellant as a vulnerable adult-due to his mental health issues” (paragraph 5). No supporting evidence of mental health issues is identified, and nothing is articulated as to the reasonable adjustments that might have been required. Further, in the absence of any apparent application to be treated as a vulnerable witness, it is not made apparent in the Grounds on what basis the Judge should have adopted such an approach. Be that as it may, and in any event, it is manifest from the Decision that the Judge took steps to ensure the full participation of the Appellant in the hearing – for example by recognising at the outset that it would be helpful for the Respondent’s Presenting Officer to outline the Respondent’s case (paragraph 15), and the Judge explaining procedure to the Appellant (paragraphs 16 and 35). It is also manifest that the Judge facilitated the Appellant in presenting his evidence (paragraph 18), including in respect of understanding questions put to him in cross-examination (paragraph 25). The Appellant was afforded extra time to formulate his submissions (paragraph 44).

11. There is no particularised claim in the Grounds as to what prejudice the Appellant may have suffered by not being treated as a vulnerable witness: for example, it is not suggested that he was unable to engage with questions put to him at the hearing, or otherwise present his oral testimony and make his submissions.

12. However, given that I am granting permission in respect of the other bases of challenge I do not consider it appropriate to exclude altogether consideration of this further aspect of the challenge – although the Appellant should take due note of the fact that it appears to lack any real merit.

13. Permission to appeal is granted on all grounds.”

SUBMISSIONS

3. Mr Ahmed adopted the grounds of appeal. The strongest ground was the failure by the FTT to consider adjourning the case to ascertain the outcome of the family law hearing and the FTT failed to apply the test in RS (immigration and family court proceedings) India [2012] UKUT 00218 (IAC). At the date of hearing there was no subsisting relationship with the former partner and child but he had been seeing the child in prison. The engagement in contact proceedings arguably was relevant to an evaluation of ‘very compelling circumstances’ beyond Exceptions 1 and 2. The Appellant was unrepresented and the failure to follow the family court procedure was an error in law. The case should have been adjourned to obtain the documents from the Family Court

4. Mr Tufal relied on the Rule 24 response, filed on 13 June 2024, and submitted the case was previously adjourned in January 2024 to enable the Appellant to seek evidence he was to be represented and for evidence about the family court to be obtained. However, even if there was evidence he submitted that on the facts of the case how could the Appellant have succeeded. There had to be evidence above and beyond Exception 2 and there was no such evidence. There had been no contact for 18 months and Rule 24 refers to CJ (family proceedings and deportation) [2022] UKUT 336 (IAC) and in particular paragraph [38] which says “First, attempting to reach findings concerning whether Exception 2 applies before the resolution of contact proceedings may be premature. But in some cases, it will be clear that, irrespective of the best interests of any children concerned, the public interest is in favour of the deportation of the individual concerned. This will be an inherently fact-sensitive analysis.” Mr Tufal submitted this was the case in this appeal and adjourning this case would not have led to the situation changing even if contact had been allowed.

5. Mr Ahmed submitted it was not this court’s role to speculate what might have happened. The level of contact may impact on the unduly harsh test that the court would have to consider.

6. Having heard oral submissions I reserved my decision.

DISCUSSION AND FINDINGS

7. For the reasons hereinafter given I find there was no material error of law. The pursued grounds of appeal were connected in that the Appellant had applied for an adjournment and one of the reasons for that request was because he stated he had lodged an application to see his children with the Family Court. In considering whether to adjourn the case the FTT quite properly set out the history of the case and in particular what had happened the last time this case was listed for a substantive appeal on 5 January 2024.

8. The decision recorded at paragraphs [8] to [10] why the previous Tribunal felt it was appropriate to adjourn the appeal despite opposition from the Respondent. The case was adjourned because the Appellant had had difficulty raising to funds to instruct his previous representatives and there were issues over attempted child contact, matters of mediation and his medical condition. The Tribunal agreed, despite opposition from the Respondent, to adjourn the matter to enable the Appellant further time to prepare his case.

9. The matter therefore came back before the FTT on 29 February 2024 (54 days later) and the FTT set out between paragraphs [11] and [14] the initial issues that he had to deal with. The Appellant asked for a further adjournment because “the gathering of evidence which he would wish to present had been delayed”. By this he stated appointments had been changed and an application to the Family Court had been submitted in relation to contact to his child. The FTT recorded that this application was opposed because nothing had changed and no new evidence at all had been presented. The FTT refused to adjourn the appeal for the reasons contained in paragraph [14] namely there was no evidence his previous representatives would be acting for him. The FTT did not address the application to the Family Court and it is this failure that Mr Ahmed sought to argue amounted to an error of law along with the associated refusal to adjourn the case for both this to happen and to enable the Appellant to be represented.

10. I remind myself there is a protocol in place where the Family Court are involved. That protocol was clearly not invoked in this appeal and I accept it is arguable this amounted to an error. However, Mr Tufal submitted that against the background of the case and most importantly the fact the Appellant (a) did not have a subsisting relationship with his child and had not done so for more than 18 months and (b) he had received a substantial prison sentence which meant that even if the Family Court granted contact the Appellant had to show exceptional and compelling circumstances beyond that relationship. Given these facts any error, Mr Tifal argued any error was not material.

11. In arguing the procedure was unfair and amounted to an error in law Mr Ahmed relied on what the Tribunal said in RS. The headnote of this case says the following:

1. Where a claimant appeals against a decision to deport or remove and there are outstanding family proceedings relating to a child of the claimant, the judge of the Immigration and Asylum Chamber should first consider:

i) Is the outcome of the contemplated family proceedings likely to be material to the immigration decision?
ii) Are there compelling public interest reasons to exclude the claimant from the United Kingdom irrespective of the outcome of the family proceedings or the best interest of the child?
iii) In the case of contact proceedings initiated by an appellant in an immigration appeal, is there any reason to believe that the family proceedings have been instituted to delay or frustrate removal and not to promote the child’s welfare?

2. In assessing the above questions, the judge will normally want to consider: the degree of the claimant’s previous interest in and contact with the child, the timing of contact proceedings and the commitment with which they have been progressed, when a decision is likely to be reached, what materials (if any) are already available or can be made available to identify pointers to where the child’s welfare lies?

3. Having considered these matters the judge will then have to decide:

i) Does the claimant have at least an Article 8 right to remain until the conclusion of the family proceedings?
ii) If so, should the appeal be allowed to a limited extent and a discretionary leave be directed as per the decision on MS (Ivory Coast) [2007] EWCA Civ 133?
iii) Alternatively, is it more appropriate for a short period of an adjournment to be granted to enable the core decision to be made in the family proceedings?
iv) Is it likely that the family court would be assisted by a view on the present state of knowledge of whether the appellant would be allowed to remain in the event that the outcome of the family proceedings is the maintenance of family contact between him or her and a child resident here?

12. Mr Tufal referred to the decision in CJ. The Tribunal gave further guidance on how the Tribunal and Family Court proceedings are affected by deportation proceedings. Adopting what the court said in RS and earlier cases the Tribunal made the following clear:

a. Where an appellant in an appeal challenging the refusal of a human rights claim is engaged in proceedings before the Family Court, the general approach in MS (Ivory Coast) v Secretary of State for the Home Department [2007] EWCA Civ 133, MH (pending family proceedings-discretionary leave) Morocco [2010] UKUT 439 (IAC) and RS concerning the need for an appellant to be permitted to remain in the United Kingdom in order to prosecute family proceedings remains applicable. In particular, a tribunal considering this issue should address the questions at paragraphs 43 to 45 of RS (other than the questions in paragraph 44(ii)).

b. The enactment of Part 5A of the 2002 Act has not changed the Secretary of State’s normal practice not to remove prospective deportees during the currency of contact proceedings.

c. The statutory considerations established by Part 5A, in particular those applicable to the deportation of foreign criminals contained in section 117C, do not prevent a court or tribunal from taking into account the factors contained in MS (Ivory Coast), MH and RS. The considerations in MS (Ivory Coast), MH and RS are capable of amounting to “very compelling circumstances” for the purposes of section 117C(6). As HA (Iraq) confirms at paragraph 51, the “very compelling circumstances” assessment under section 117C(6) is to be conducted by reference to the underlying requirements of Article 8 ECHR, including the applicant’s family situation, any children concerned, and their best interests. Where those factors militate in favour of the conclusion that, until the resolution of the contact proceedings, it would be unlawful under section 6 of the Human Rights Act 1998 for an appellant to be removed, that will constitute “very compelling circumstances over and above those described in Exceptions 1 and 2”, pending the resolution of the contact proceedings.

d. The requirements of the ECHR are not such that all foreign criminals should be permitted to remain in the United Kingdom pending the resolution of contact proceedings before the Family Court: nothing in this decision should be seen as contrary to the guidance to that effect in RS. But where, following consideration of the guidance in RS, a judge decides that the requirements of the ECHR are such that the individual concerned should be permitted to remain to that limited extent for those specific reasons, that will amount to very compelling circumstances and the public interest will not – for the time being at least – require the deportation of the foreign criminal.

e. Attempting to reach findings concerning whether Exception 2 applies before the resolution of contact proceedings may be premature. But in some cases, it will be clear that, irrespective of the best interests of any children concerned, the public interest is in favour of the deportation of the individual concerned. This will be an inherently fact-sensitive analysis.

13. The FTT did not refer to RS or CJ in his decision and his approach to the appeal is set out between paragraphs [59] and [64] of the decision. The FTT noted very compelling circumstances beyond Exceptions 1 and 2 had to exist. The FTT found at paragraph [62] there was no very compelling circumstances and referred to the fact the Appellant had not had contact with either his wife or child for at least eighteen months. He had been convicted of two very serious offences one of which involved the attempted forgery of passports and one which resulted in the loss of public revenue. The FTT recorded he had family to turn to in Pakistan and that he had not lost his cultural or linguistic ties. Much of his private life was established whilst he was in prison or his status was precarious as a bare minimum.

14. Having established the above, including the fact that the structured approach set out in RS had not been referred to, I had to consider whether the failure to follow this approach or to adjourn the case for the family proceedings to be determined was a material error in law.

15. I remind myself this is not a deportation appeal where the Appellant could rely on Exception 1 or 2. He received an eight year sentence for serious offences so simply having contact with his child would be insufficient. The Appellant had to show exceptional and compelling circumstances over and above any possible contact order. There was nothing recorded said in the evidence which pointed to any such circumstances. There was nothing in the evidence which pointed to any child illness.

16. Applying the approach in RS and CJ I find the following :

a. Based on what was known at the date of hearing there was nothing to suggest the outcome of the contemplated family proceedings would be material to the immigration decision given the Appellant had to show exceptional and compelling circumstances over and above any possible contact order.

b. The FTT found there were compelling public interest reasons to exclude the claimant from the United Kingdom irrespective of the outcome of the family proceedings or the best interest of the child.

c. If proceedings had in fact been initiated by the Appellant there was no basis to make a finding the family proceedings had been instituted to delay or frustrate removal and not to promote the child’s welfare.

d. The need for an Appellant to be permitted to remain in the United Kingdom in order to prosecute family proceedings remains applicable and the enactment of Part 5A of the 2002 Act has not changed the Secretary of State’s normal practice not to remove prospective deportees during the currency of contact proceedings. The requirements of the ECHR are not such that all foreign criminals should be permitted to remain in the United Kingdom pending the resolution of contact proceedings before the Family Court.

e. In some cases, it will be clear that, irrespective of the best interests of any children concerned, the public interest is in favour of the deportation of the individual concerned. This will be an inherently fact-sensitive analysis.

17. Having established what was known at the date of hearing I am satisfied that whilst the FTT did not identify the above procedure the fact remains that simply because the Appellant may have made an application for contact did not prevent both the Respondent refusing his application and the FTT dismissing the same.

18. Whilst the FTT could have adjourned the case again, as it e had done on 5 January 2024, I find the FTT was best placed, having had conduct of this appeal to decide whether a further adjournment and the implementation of the Family Protocol would have altered the situation against a background of no subsisting relationship with the child or any contact for over eighteen months.

19. I find there was, in the circumstances of the case, no procedural unfairness by not adjourning the hearing generally or by not invoking the Family Protocol.

Notice of Decision

There was no error in law and the decision of the FTT stands.

SP ALIS

Deputy Judge of the Upper Tribunal
Immigration and Asylum Chamber

12/3/2025