Tribunal decisions

The decision

IN THE UPPER TRIBUNAL
IMMIGRATION AND ASYLUM CHAMBER
Case No: UI-2024-002152

First-tier Tribunal No: HU/51590/2023
LH/04020/2023

THE IMMIGRATION ACTS

Decision & Reasons Issued:

25th July 2025

Before

UPPER TRIBUNAL JUDGE PINDER

Between

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Appellant / Respondent in FtT
and

MALEK HOSSEIN ABDOLLAHI
(ANONYMITY ORDER NOT MADE)
Respondent / Appellant in FtT

Representation:
For the Appellant: Ms A Ahmed, Senior Presenting Officer.
For the Respondent: Mr D Bazini, Counsel instructed by Duncan Lewis Solicitors.

Heard at Field House on 17 June 2025

DECISION AND REASONS

1. For ease of reference, I will refer to the parties as they appeared at first instance, namely the Secretary of State as the Respondent in the FtT and Mr Abdollahi as the Appellant in the FtT.
2. The Respondent Secretary of State appeals the decision of the First-tier Tribunal (‘the FtT / the Judge’) promulgated on 20th March 2025, in which the Judge allowed the Appellant’s human rights appeal.

Background
3. The Appellant is a national of Iran born in 1968. In so far as is relevant to these proceedings, the Appellant was granted exceptional leave to remain on 19th November 2001. In 2004, the Appellant was joined in the UK by his wife and their two children in the UK and in 2005, their third child was born. On 17th May 2005, the Appellant and his family applied for indefinite leave to remain but before this application was decided, the Appellant and his family returned in 2006 to Iran.
4. In October 2008, the Appellant and his family left Iran again and travelled to the UK using false Finnish passports. For the use of false passports, the Appellant was convicted on 16th October 2008 and was sentenced to a period of 15 months’ imprisonment. As a result of this conviction, the Respondent issued the Appellant with a notice of decision to deport and a deportation order was signed on 10th March 2017. The Appellant’s human rights claim made in response to the deportation decisions was refused and his subsequent appeal was dismissed in 2018. The Appellant then lodged further submissions, which ultimately resulted in the refusal decision of the Respondent dated 19th January 2023, which the Appellant appealed to the FtT.
The decision of the First-tier Tribunal
5. The Judge heard oral evidence from the Appellant, his wife and their three sons. There is no need for me to identify the Appellant’s wife and sons by name so I will keep referring to the Appellant’s wife in these terms and as for her and the Appellant’s children, who are now all adults, I will refer to them in order of eldest to youngest: C1, C2 and C3.
6. At [15]-[16], the Judge recorded that the Appellant was not pursuing any protection aspects of his appeal and so no question to resolve under s.72 of the 2002 Act arose. The Judge otherwise recorded that the parties’ representatives had agreed the following complete list of issues as those being in dispute, which I re-produce as follows:
i. Would it be unduly harsh for C3 to live in Iran with the Appellant?
ii. Would it be unduly harsh for C3 to remain in the UK without the Appellant?
iii. If not, are there very compelling circumstances such that maintaining the Respondent’s decision would be contrary to the Human Rights Act 1998 by reason of it being a disproportionate interference with rights protected by Article 8 of the European Convention on Human Rights (“the ECHR”)?
7. The Judge then summarised and set out their findings on the following aspects of the evidence presented:
(a) The Appellant’s own evidence at [18]-[22], including his oral evidence;
(b) The Appellant’s wife’s evidence at [23]-[27], including her oral evidence;
(c) C1’s evidence at [28]-[32], including his oral evidence;
(d) The written evidence of the independent social worker at [33]-[36];
(e) The medical evidence at [37]-[38];
(f) The findings of the previous tribunal when considering the Appellant’s earlier appeal that flowed from the Respondent’s decisions to take deportation action at [39]-[47].
8. After summarising the parties’ competing cases on the two questions of whether it would be unduly harsh for C3 to live in Iran with the Appellant and unduly harsh for him to remain in the UK without the Appellant, and directing themselves to relevant caselaw at [55], the Judge set out their conclusions on those two issues at [56]-[67].
9. The Judge then went on to consider, in the alternative, whether the Appellant could demonstrate very compelling circumstances over and above the first two statutory exceptions to deportation (contained in s.117C(5)) such that maintaining the Respondent’s decision would be contrary to the Human Rights Act 1998 by reason of it being a disproportionate interference with rights protected by Article 8 of the ECHR, pursuant to s.117C(6) of the 2002 Act (‘the very compelling circumstances test’). The Judge set out their findings on this higher threshold at [68]-[78]. I will return to the Judge’s findings under these two limbs of s.117C as part of my analysis of the Respondent’s grounds of appeal set out below.
The Respondent’s appeal to the Upper Tribunal
10. The Respondent raised two grounds of appeal, which can be summarised as follows:
(a) Ground 1 – the Judge made a material mistake of fact in treating C3 as being under 18 years old at the time of the hearing and the determination of this appeal at first instance. The author of the grounds makes clear that neither the Appellant nor his legal representatives were responsible for this mistake but nonetheless, unfairness has resulted from this. In the alternative, the Respondent pleads that the Judge failed to provide reasons, adequate or at all, for findings on material matters, namely on why the Appellant’s deportation would be unduly harsh on C3. A number of specific submissions are made to illustrate this;
(b) Ground 2 - the Judge failed to provide reasons, adequate or at all, for findings on material matters, namely on the ‘very compelling circumstances’ test.
11. The Respondent secured permission to appeal from the Upper Tribunal in the following terms:
“It is arguable as asserted in the grounds that the Judge may have materially erred in law having applied the unduly harsh test where there was no qualifying child who came within s117C(5) of the 2002 Act, and that this infected the consideration of the very compelling circumstances test which was considered in the alternative. All grounds may be argued.”
12. In response, the Appellant filed and served a reply under Rule 24 of the Procedure Rules, in which the Respondent defends the First-tier Tribunal Judge’s decision.
13. At the hearing, both parties’ advocates made further oral submissions on each of the grounds of appeal pursued by the Respondent and Ms Ahmed, on behalf of the Respondent, also relied on a further skeleton argument prepared, filed and served in support of the grounds of appeal. Mr Bazini, on behalf of the Appellant, defended the First-tier Tribunal’s decision and elaborated on his Rule 24 response. I have addressed the parties’ respective written pleadings and oral submissions in the section below when setting out my analysis and conclusions. At the end of the hearing I reserved my decision and provide this below with my reasons.
Analysis and conclusions
14. I start my analysis by noting that the Judge’s decision is very detailed, contains a comprehensive review and assessment of the evidence before them, which includes oral testimony, written evidence, medical evidence and expert evidence in the form of an ISW report. It is clear that the Judge took great care in considering the evidence before them in order to enable them to resolve the issues in dispute between the parties.
The Respondent’s first ground of appeal – the Judge’s unduly harsh assessment
15. The Respondent makes a number of complaints under Ground 1 but first and foremost, the Respondent submits that the Judge was mistaken when considering that the Appellant had a ‘qualifying child’ under s.117C(5). This was because at the time of the hearing at first instance, the Appellant had three adult children: C1 born in 1997, C2 born in 1999 and C3 born in 2005. The error of fact argued by the Respondent concerns C3, who turned 18 years old in November 2023 – the hearing at first instance took place in January 2024. The Respondent submits that this error has caused any consideration of the ‘unduly harsh’ test to be incorrect and the Judge should have taken this into consideration when assessing whether or not the Appellant meets the exception under s.117C(5).
16. Before me, there continued to be a dispute between the parties as to whether or not the Respondent had made a concession to the effect that C3 should be considered as part of an ‘unduly harsh’ assessment since he was 17 years old at the time of the decision. This was maintained by Mr Bazini in his Rule 24 response dated 25th June 2024 as having been provided by the Respondent at a case-management hearing on 9th January 2024, which took place a few weeks or so before the substantive hearing in the FtT. Ms Ahmed disputed this in her skeleton argument and exhibited a copy of the directions made by the FtT following the case-management hearing and which did not reflect any such concession being made and/or was silent on the issue.
17. I do not consider it necessary to try and resolve the dispute between the parties as to what may have been agreed between them either at the case-management hearing on 9th January 2024 or at the substantive hearing at first instance on 31st January 2024. This is for a number of reasons.
18. First, it is clear from the issues recorded by the Judge at [16] that both parties must have been agreed that an assessment was required as to whether the Appellant’s deportation would be unduly harsh for C3. There is no suggestion in the rest of the decision that this was not a relevant assessment to make and I consider, in light of how detailed the decision otherwise is, that had there been a disagreement on this issue between the parties, this would have been recorded by the Judge.
19. Second, it is also clear from several instances in the Judge’s decision that they were fully aware that C3 had become an adult – see [61]: “(C3) is now at a stage in his life, in this country in which he is settled and will, in due course, likely be entitled to citizenship, where he is just starting out as an aspirational young adult”; and [73]: “There are three children of the marriage, two are adults, and one was a child at the time of the decision challenged in this appeal. This counts on the Appellant’s side of the balancing exercise.” (emphasis added)
20. I do not accept therefore that neither party raised this at first instance, as the Respondent appears to suggest in her grounds of appeal and has suggested by Ms Ahemd at para 14 of her skeleton argument.
21. In light of the above, I do not consider that the Judge was mistaken in fact in respect of C3’s age at the time of the hearing and their determination of this appeal at first instance. For the above reasons, I am satisfied that the fact that C3 was now an adult was a factor that the Judge clearly took into consideration when assessing whether it was unduly harsh on C3 for his father to be deported. That is clear from the brief passages of the Judge’s decision extracted immediately above. It also follows in law that consideration of the unduly harsh test fell to be taken into account by the Judge when determining the Appellant’s appeal. This is for several reasons:
(a) As noted by the Judge themselves at [73], C3 was a child at the time of the Respondent’s decision;
(b) In children applications for entry clearance, paragraph 27 of the Immigration Rules provides that a decision on an application for entry clearance must be taken in the light of the circumstances existing at the time of decision, except where a child reaches the age of 18 after such an application has been lodged, but before it has been decided. In that situation, para 27 and its accompanying ‘Family Life’ guidance issued by the Respondent stipulates that the application should not be refused solely because the child has turned 18 – this was raised by Mr Bazini, by analogy only, since this appeal does not concern an entry clearance application;
(c) It is well-established that human rights appeals are to be considered as at the time of the appeal hearing but similarly, it is well established that there is no bright line for a family life established between a parent and a child to end when the child turns 18 years old;
(d) The well-established authorities in deportation appeals instruct that judges ought to consider the extent to which an appellant can demonstrate that they meet the requirements contained in either statutory exceptions to deportation in s.117C(5) of the 2002 Act. A ‘qualifying child’ is defined in s.117D(1) as a person who is under the age of 18 years old but it is clear from the Judge’s findings that they found the impact on C3 to be unduly harsh for reasons that were present when C3 was under the age of 18 year old and which continued upon him turning 18.
22. For the reasons above, I consider it entirely appropriate of the Judge to have considered the Appellant’s appeal through the prism of the unduly harsh test in respect of C3 and in light of the factors listed at para 21 above, it was incumbent upon the Judge to consider the appeal under s.117C(5).
23. I now turn to the Respondent’s other complaints against the Judge’s findings that the threshold of unduly harsh was met, and more specifically her reasons for the same and whether these were adequate.
24. First, the Respondent complains that the Judge failed to address the fact that the ISW report, relied upon by the Appellant and to which the Judge attached weight, was prepared over eight months prior to the hearing. The Respondent does not otherwise particularise how this is said to have brought the Judge into error or otherwise undermined their conclusions. As Mr Bazini submitted, it is not unusual for elements of the evidence in appeals of this kind to have been prepared some months before the appeal hearing, considering that the standard directions require the parties to exchange their respective evidence prior to the appeal hearing being listed. I note for example that the Respondent’s bundle of evidence was lodged with the FtT in February 2023, almost one year before the appeal hearing took place. Nor was this an issue that Ms Ahmed addressed me any further on.
25. Second, the Respondent makes submissions on how the Judge approached the issue of the Appellant’s wife’s mental health and that the Appellant had not made out that this crossed the Article 3 ECHR threshold in accordance with the guidance of AM (Zimbabwe). This is not a submission that Ms Ahmed pursued at the appeal hearing since the Appellant did not pursue an Article 3 case at first instance nor did the Judge make any findings under Article 3 ECHR. The Respondent has not otherwise sought to challenge the Judge’s findings in relation to the mental health of the Appellant’s wife, which include at [59]-[60] that without the Appellant’s support, and even at times with the Appellant’s support, the Appellant’s wife has struggled to properly care for herself (to a degree recorded by the Judge at [37] and [57]) and if separated from C3 and her husband (the Appellant), this would also have a serious impact on C3. The latter because, on the Judge’s findings, C3 would not be able to assure himself as to her welfare through the regular in person contact that he currently has, and because he would know she was again without the support of her husband.
26. Third, still in relation to the Appellant’s wife’s mental health, the Respondent submits at para 1e) of her grounds that “it has not been explained why C2 cannot look after his mother if the Appellant is deported to Iran, therefore alleviating any burden on C3 whether he is viewed as a child or an adult. It has also not adequately been reasoned why the FTTJ has found C1 would not care for his mother in the Appellant’s absence.”
27. I am not satisfied that this is correct representation of the Judge’s reasoning, which is very clear at [66]: the Judge recorded being “particularly persuaded on this point by the evidence of (C1), who set out in very compelling terms that if their father was forced to return to Iran (alone), (C3) would have no choice but to take on a role which would cause his mind to be occupied by thoughts which he should not have to think about at his age, when he should be able to think about his future, his studies, and establishing himself as a young man. As (C1) had himself taken on this role throughout his childhood, he was able to give evidence from an informed perspective about the toll this would take on his brother. The unfair toll it had taken on (C1) was clear from his evidence, and from his entirely legitimate and understandable decision that he would now focus on his life with his partner, and would not be able to provide the emotional and practical support to his parents and brothers that he had given them since childhood”.
28. With regards to C2, the Judge recorded the evidence of C2 himself at [25] as suffering from “bad depression” as well as C1’s evidence at [30] that C2 “took his dad’s absence and their family situation in a very different way to him, that he closed himself off from his family, from other people, from his surroundings, and his friends, and was bullied in school, excluded from school multiple times, struggled since school, struggled to keep a job, was severely depressed, was trying to go to the doctor, and did not have the mental capacity to take on any more burden”. Further at [31] that “if his father went back to Iran the impact on (C2) would be “massive.” He said everyone had been trying to help (C2), because they could see how much he was struggling, but the only person who could get through to him, the only person he would listen to, was his father. He said he did not know how long it had been since (C2) had his last job, and the only reason he managed to get out of the house and do the job applications was because of his dad’s persistence. He said his dad was there every day, pressing him and encouraging him and it was this more than anything which had helped (C2)”.
29. It is clear from the above and many other passages in the Judge’s decision, that the Judge had detailed evidence before her as to the Appellant’s children’s respective needs and difficulties. Furthermore, that the Judge accepted the Appellant and that of his evidence. Thus, the submission that the Judge has not explained why it would be unduly harsh to separate C3 from his father is entirely unsupported.
30. The points taken by the Respondent under Ground 1, including the purported mistake of fact as to C3’s age at the time of the appeal hearing, how the Judge approached the ISW report and the mental health of the Appellant’s wife and its impact on their children, are drawn together at para 1f) of the grounds of appeal to support the argument that the Judge’s reasoning for finding in favour of the Appellant on the unduly harsh test are inadequately reasoned. For the reasons above however, I am entirely satisfied that this ground is not made out.
31. In the alternative and if I am wrong about the Judge’s approach to C3’s age under s.117C(5) of the 2002 Act, I do not consider that any error is material since the Judge in any event went on to consider the Appellant’s appeal under the threshold of ‘very compelling circumstances’. In addition, for the reasons set out above, it is clear from the Judge’s decision that, contrary to the Respondent’s submissions, they were fully aware that C3 had just turned 18 years old by the time of the appeal hearing. It follows therefore that the Judge’s findings as to the impact being unduly harsh on C3, whether he was to be considered a child or an adult, were appropriately and correctly taken forward in the Judge’s assessment of the very compelling circumstances test. This disposes of the first submission made at para 2a) of the Respondent’s grounds and I now turn to the rest of submissions made under Ground 2.
The Appellant’s second ground of appeal – The Judge’s ‘very compelling circumstances’ assessment
32. The Respondent reiterates that the Judge erred in taking into account the best interests of C3 in favour of the Appellant at [75]. However, the Judge also reminded themselves in the same paragraph that the best interests are not determinative of an Article 8 assessment. As I have already found above, the Judge’s findings on the impact on C3 being unduly harsh are capable of standing up to scrutiny whether C3 was 17 or 18 years old, when taken forward into the Judge’s assessment as to whether or not there were very compelling circumstances pursuant to s.117C(6).
33. A number of other submissions are made by the Respondent in support of her second ground of appeal. First, at para 2b) of the Respondent’s grounds, that the Judge erred in other ways as to her findings fact. The only example given is that the Judge accepted at [69] that the Appellant’s use of false passports was to escape persecution – an issue which had not been accepted by the Respondent or not made out by the evidence. However, when reading what the Judge set out at [69], it is not correct so submit that the Judge endorsed the Appellant’s claim to have obtained and used the false passports to flee persecution. The Judge stated there that “he used false passports to travel with his wife and children to another country, in the hope of a better life for them all.” It is also of note that the Judge went on to immediately find as follows, also at [69]:
“However, the Appellant received a custodial sentence of 15 months for his offending behaviour. This speaks to the seriousness with which it is viewed by the criminal justice system, and I treat it as such for the purposes of this consideration. It therefore weighs heavily in the balance against the Appellant.”
34. Second, at para 2c), the Respondent submits that the Judge should not have “attributed any positive weight to the appellant in respect” of his claim that he was not advised at the time of his criminal trial that he could have raised a defence against his conviction under Article 31 of the Refugee Convention. The Respondent adds that this is not credible in light of the Appellant being legally represented at the time, in light of his later decision not to pursue a challenge to his conviction and in light of his decision not to pursue his protection claim at first instance.
35. I am satisfied that the Respondent’s submissions here amount to an attempt to argue points that could have/should have been raised at first instance, but which seemingly were not. At [18], the Judge very clearly recorded that “(t)he Appellant’s evidence about what happened to him and his family on arrival to the UK was not challenged by the Respondent”. The Judge then went on to extract a lengthy passage from the Appellant’s witness statement, in which the Appellant explained the circumstances leading to his guilty plea. Nowhere in the Respondent’s grounds or subsequent skeleton argument is this addressed. There is also no suggestion from the Judge’s consideration and application of the very compelling circumstances test at [69]-[78] that the Judge attributed positive weight in favour of the Appellant to the fact that he could have raised a defence. The Judge expressly deals with the Appellant’s conviction at [69]-[70] and there is no reference to the issue of defence there.
36. Third, the Respondent takes issue with the Judge’s finding at [70] that the Appellant has not re-offended since the conviction in question rehearsing that “it is an expectation on both migrants and citizens of the UK not to break the law and is therefore undeserving of more than neutral weight. ” This submission made under Ground 2 is surprising since the Judge when noting the lack of real risk of reoffending at [70] expressly stated that this was “neutral in the balancing exercise”.
37. Lastly, the Respondent argues under this Ground that the Judge has inadequately reasoned their finding that the Appellant’s family is a “very strong one” at [71]. This is because, according to the Respondent, the evidence of each of the Appellant’s family members was that they would not return to Iran with the Appellant and in the Respondent’s view this was indicative of a lack of commitment. It was also submitted that the decision of the Appellant and his wife to relocate to London (from Nottingham) where the children had grown up went against their best interests, even if now adults.
38. I consider the Respondent’s submissions on a purported lack of commitment and on the relocation to London to be rather subjective and these are not submissions grounded in evidence before the Judge at first instance. It is clear from my reasons set out above and the Judge’s reasons at [71] and [76], which also take forward the Judge’s earlier findings and reasoning set out at [56]-[66], that the Judge’s conclusion at [71] concerning the qualify of the Appellant’s family life was reasonably open to them on the evidence considered. This is particularly so against the clear findings of fact reached by the Judge concerning the circumstances and needs of the Appellant as well as those of each of his family members.
39. For the all of the reasons above, I am satisfied that the Judge’s assessment of whether or not the Appellant could meet the very compelling circumstances test, over and above the first two statutory exceptions to deportation, is more than adequately reasoned and was entirely open to the Judge on the evidence before them, which as addressed at the start of my analysis has been comprehensively engaged with throughout the Judge’s decision. It is also clear that the Judge has directed themselves entirely correctly against the issues in disputed raised by the parties and the relevant authorities and statutory provisions that apply in deportation appeals.
40. It follows from the above that the Respondent Secretary of State’s appeal to the Upper Tribunal must be dismissed.

Notice of Decision
41. The decision of the First-tier Tribunal did not involve the making of a material error of law and the decision shall stand. The Respondent Secretary of State’s appeal to the Upper Tribunal is dismissed.

Sarah Pinder

Judge of the Upper Tribunal
Immigration and Asylum Chamber

15.07.2025