Tribunal decisions

The decision

IN THE UPPER TRIBUNAL
IMMIGRATION AND ASYLUM CHAMBER
Case No: UI-2024-002483 and UI-2024-002666

First-tier Tribunal No: HU/02004/2023

THE IMMIGRATION ACTS

Decision & Reasons Issued:

On 23rd of April 2025

Before

UPPER TRIBUNAL JUDGE MAHMOOD
DEPUTY UPPER TRIBUNAL JUDGE OBI

Between

Anas Elorby
(NO ANONYMITY ORDER MADE)
Appellant
and

SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: Agata Patyna, Counsel, instructed by Duncan Lewis & Co Solicitors
For the Respondent: Mr T Lindsey, Senior Presenting Officer

Heard at Field House on 17 February 2025

DECISION AND REASONS

Introduction
1. The Appellant, a citizen of Italy, appeals with permission against the decision of First-tier Tribunal Judge Hanes (‘the Judge’) which was promulgated on 29 April 2024 following a hearing on 12 April 2024. By that decision, the Judge dismissed the Appellant’s appeal against the Respondent’s decision to refuse his human rights claim which had been made in the course of seeking to resist deportation. This is our decision in respect of the error of law.

Background
2. The Appellant arrived in the UK in May 2013 aged 13 having spent the earlier part of his childhood in Italy. The Appellant attended school in the UK, speaks fluent English and has a work history in the UK. The Appellant, now aged 25 (aged 24 at the time of the appeal before the Judge), is single with no dependents. The Appellant was issued with a registration certificate as an EEA national in 2017. On 1 April 2019, he was granted Indefinite Leave to Remain (ILR) under the EU Settlement Scheme (EUSS). His parents are Italian nationals born in Morocco and have ILR. His younger siblings, aged 19 (sister – S1), 12 (sister – S2) and 9 (brother – B1) acquired British citizenship in May 2023.
3. On 23 November 2022, the Appellant (then aged 22 years and 11 months) was convicted of two counts of being concerned in the supply of a controlled drug (Class A – cocaine) for which he was sentenced to 43 months imprisonment and one count of assault causing actual bodily harm for which he was sentenced to 10 months imprisonment. The sentences were ordered to run consecutively thereby making a total of 53 months (4 years and 5 months).
4. On 9 May 2023, the Respondent made a Decision to Deport under section 3(5)(a) of the Immigration Act 1971 and, in accordance with section 32(5) of the UK Borders Act 2007, the Appellant was notified of his right of appeal on specific grounds (as a person with EUSS leave) under Regulation 6 of the Immigration (Citizens’ Rights Appeals) (EU Exit) Regulations 2020. The Appellant made his human rights claim on 23 May 2023. On 17 October 2023, the Respondent made a Deportation Order, and on the same date, issued a decision with reasons refusing the Appellant’s human rights claim. The Appellant was informed of his right to appeal against that decision under section 82 of the Nationality, Immigration and Asylum Act 2002 (2002 Act).
5. Neither the Appellant’s criminal history nor his immigration history was disputed by the parties.

Legal Framework
6. There are many manifestations of family life within the meaning of Article 8. As stated by Mumby J in Singh v ECO [2005] QB 608:
“…there are, in principle, four key relationships. First, there is the relationship between husband and wife. Secondly, there is the relationship between parent and child. Thirdly, there is the relationship between siblings. And, fourthly, there are relationships within the wider family: … Each of these relationships can in principle give rise to family life within the meaning of Article 8…”
7. The starting point is the well-established recognition that family life under Article 8 of the ECHR is not automatically presumed between an adult and their siblings, as it may be between minor children and their parents.
8. In Kugathas v Secretary of State for the Home Department [2003] EWCA Civ 31, at [14], it was emphasized that family life is typically dependent on “real, committed, or effective support,” and Sedley LJ cited with approval the Commission’s observation in S v United Kingdom (1984) 40 DR 196 that:
“Generally the protection of family life under Article 8 involves cohabiting dependents, such as parents and their dependent, minor children. Whether it extends to other relationships depends on the circumstances of the particular case. Relationships between adults, a mother and her 33 year old son in the present case, would not necessarily acquire the protection of Article 8 of the Convention without evidence of further elements of dependency, involving more than the normal emotional ties [emphasis added].”
9. It was stated by Arden LJ in Kugathas at [24] – [25] that:
“24. There is no presumption that a person has a family life, even with the members of a person’s immediate family. The court has to scrutinise the relevant factors. Such factors include identifying who are the near relatives of the appellant, the nature of the links between them and the appellant, the age of the appellant, where and with whom he has resided in the past, and the forms of contact he has maintained with the other members of the family with whom he claims to have a family life.
25. Because there is no presumption of family life, in my judgment a family life is not established between an adult child and his surviving parent or other siblings unless something more exists than normal emotional ties [emphasis added] ... Such tie might exist if the appellant were dependent on his family or vice versa.
10. In Saliu v Secretary of State for the Home Department [2021] EWCA Civ 1847, the Court of Appeal considered the position of adult appellants living in Nigeria (aged 22 and 25), who claimed to enjoy family life with their parents and minor siblings in the UK. The Court found that family life was not made out on the facts. It was held that the presence of emotional affection alone does not establish family life; rather, there must be more—specifically, evidence of mutual dependency or support.

Decision of the First Tier Tribunal
11. The Judge heard oral evidence from the Appellant, his father, and his mother. Both parents gave evidence via an Arabic interpreter.
12. At the hearing, the Appellant challenged the Respondent’s application of the domestic scheme. The European scheme was created as a result of the Withdrawal Agreement. It provides for certain EUSS individuals to be subject to a fundamentally different regime for protection against deportation from that which would otherwise apply to them as foreign nationals under the domestic regime. For present purposes, it will suffice to say that the Judge resolved this dispute in favour of the Respondent. At [7] the Judge held that the domestic regime applies to EEA nationals and their family members in relation to criminal conduct that falls wholly after the deadline of 31 December 2020. The Judge went on to state at [8] and [9] that the Appellant’s criminal conduct was after the deadline, he is not a British citizen and has been convicted in the UK of an offence for which he has been sentenced to a period of imprisonment of more than 12 months. These facts were not in dispute.
13. The Judge proceeded, at [19]-[38], to consider the Appellant’s appeal with reference to Article 8 ECHR. At [21] the Judge noted that as the Appellant’s sentence for the supply of Class A drugs was less than four years (43 months), he is a ‘medium’ offender and in accordance with s117C(3) of the Nationality, Immigration and Asylum Act 2002, the public interest requires the Appellant’s deportation unless Exception 1 or Exception 2 applies. The Judge further noted that if neither exception applies, consideration must be given as to whether there are very compelling circumstances, over and above those described in Exceptions 1 and 2 such that removal would be contrary to Article 8.
14. At [22]-[23] and [27]-[28] the Judge made a number of key findings. These include as follows:
i. The Appellant’s mother was diagnosed with thyroid cancer in 2018. She underwent surgery in October 2018 followed by radiotherapy in 2019. In a hospital letter, dated 19 March 2020, it was stated that “She is very well”. Tests showed no evidence of persistent disease, and she would be reviewed in a year. Besides being prescribed medication and annual reviews there was no evidence that she required further treatment. Subsequent to her treatment the Appellant’s mother had made a good recovery. Her medical records did not indicate that she currently suffers from any significant medical issues which affect either her mobility or her daily living functions. She is able to care for herself and her minor children.
ii. The needs of the Appellant’s mother would have been greater between 2018-2020 when she was ill, and her minor children were younger. The Appellant did not assist during the years when he left home or was in prison. The Appellant’s parents and S1 were able to manage various activities (the school run, cooking, childcare, and the mother’s care etc) during his more than 3-year absence and could continue to do so.
iii. The medical records indicate that as of April 2023 the Appellant’s father had Type 2 diabetes (earlier years indicate Type 1 insulin dependent diabetes).
iv. The Appellant’s assistance with picking up B1 from school and taking him to football practice or helping with homework during the last 3 or 4 months would have been helpful but was not essential.
v. The Appellant and his parents exaggerated the help which it is claimed his parents require due to their medical conditions to bolster his claim. The submission in the Appellant’s skeleton argument that he plays a “vital caring role” was expressly rejected. The Appellant’s parents do not suffer from any medical issues which require the Appellant’s presence as a carer for them or to take care of his younger siblings.
vi. There was no evidence that the Appellant suffers from any significant medical conditions or vulnerabilities.
vii. The Appellant has a warm relationship with his parents and younger siblings, and they visited him regularly in prison. However, he is not emotionally dependent on his parents or adult sibling. His current financial dependency on his father is temporary, having recently been released from prison on license. There are no further elements of dependency on the Appellant other than the normal emotional ties. The Appellant has had limited contact with his siblings during the previous 3 years (other than the last 3-4 months). The best interests of the minor children are fully met by their parents and the love and affection of their elder sister S1. Their best interests do not require the Appellant’s continued presence in the UK.
15. At [28] the Judge stated that she was satisfied that Article 8 was not engaged on the basis of family life. However, the Judge took the Appellant’s relationship with his parents and siblings into account in the overall balancing exercise.
16. As the Appellant was a ‘medium offender’ the Judge was required to consider the two statutory exceptions at section 117C (4)-(5) of the 2002 Act. The Judge concluded that Exception 2 did not apply as the Appellant had no genuine and subsisting relationship with a qualifying partner nor did he have a parental relationship with a qualifying child. At [29] the Judge found that Exception 1(a) (lawfully resident in the UK for most of his life) could not be established by reference to the date of the deportation decision or the date of the hearing. The Judge noted that as the Appellant could not meet Exception 1(a), he could not fulfil the requirements of Exception 1 as each element must be established. These conclusions are unchallenged. However, the Judge considered Exceptions 1(b) and 1(c) before considering whether there were any very compelling circumstances.
17. At [30] the Judge, having considered a number of relevant factors in the context of social and cultural integration (including upbringing, education, employment history, history of criminal offending and imprisonment, relationships with family and friends, and lifestyle) was satisfied that the Appellant met the requirements of Exception 1(b). However, the Judge was not satisfied that there would be very significant obstacles to the Appellant’s integration in Italy (Exception 1(c)). In reaching this conclusion the Judge noted (amongst other things) that the Appellant spent the first 13 years and 5 months of his life in Italy, studied Italian at GCSE level in the UK and visited Italy at least once on holiday as a teenager. The Judge did not accept that the Appellant does not speak Italian fluently or that he would not catch up very quickly, if returned. The Judge was also satisfied that he would have retained knowledge of the customs and culture of Italy, would be able to re-adapt to life there and would be entitled to support from the Italian authorities.
18. At [33] the Judge considered the factors weighing against deportation including his schooling in the UK, his employment history, the relationship with his parents and siblings and the OASys report which states that there is a low risk that he will re-offend.
19. At [35] the Judge considered the public interest in deportation. She referred to the Supreme Court judgment in HA (Iraq) v Secretary of State for the Home Department [2022] UKSC 22, 1 WLR 3784 and the distinction between evidence of positive rehabilitation and the absence of further offences; the latter being “likely to be of little or no material weight in the proportionality balance”. The Judge also referred to Underhill LJ’s comments in Zulfiqar v Secretary of State for the Home Department [2022] EWCA Civ 492, [2022] 1 WLR 333 that tribunals will properly be cautious about their ability to make findings on the risk of reoffending. The Judge concluded as follows:
“Having conducted the balancing exercise, I am not satisfied that there are very compelling circumstances. Taking into account all of my findings, I do not find that the Appellant’s right to private life outweighs the public interest in deportation or that deportation would be disproportionate. In conclusion, I am not satisfied that the Appellant qualifies to be excepted from automatic deportation.”

Appeal to the Upper Tribunal
20. The procedural history of this case is convoluted but ultimately, the Appellant was granted permission to appeal on all four of his grounds by Upper Tribunal Judge Jenkins on 10 June 2024. The grounds of appeal can be summarised as follows:
i. Ground 1: Incorrect legal framework
The Judge erred in law by finding that the domestic regime applies (this argument was not pursued following the Upper Tribunal decision in Vargosa (EU nationals, post December 2020 offending, deportation) [2024] UKUT 00336– see paragraph 22 below).
ii. Ground 2: Erroneous findings in respect of family life
The Judge’s findings that family life does not exist between the Appellant and his siblings was wrong in law. She wrongly imported the test of requiring something ‘more than the normal emotional ties’ test which applies to adult siblings; failed to take into account relevant considerations including the fact that the Appellant was living in the family home and the history of his mother’s medical conditions; and misapplied the principle of best interests of the child. This error was material.
iii. Ground 3: Misdirection as to rehabilitation
The Judge in considering rehabilitation misdirected herself as to the legal implications of the evidence provided by the Appellant. His case plainly fell into the category of “positive rehabilitation” because of the professional assessment that he is a low risk for re-offending.
iv. Ground 4 – Erroneous reliance on ‘public confidence’ in respect of proportionality exercise
In undertaking the balancing exercise under Article 8 the public interest was not a permissible consideration (this argument was also not pursued see paragraph 23 below).

The Hearing
21. Although this case was listed as a re-making hearing it became apparent that it was an error of law hearing, and we proceeded on that basis.
22. By directions promulgated on 15 August 2024, this appeal was stayed behind the Upper Tribunal decision in Vargova, given the overlap in that case with the first ground of appeal (incorrect legal framework) in this case. The Upper Tribunal in Vargova decided that where offences are committed by an EU citizen who had been granted leave under the EUSS, after the date on which the transitional arrangements came to an end, the legal framework to apply is domestic law. Ms Patyna informed us that permission to appeal that decision is outstanding. In light of the Vargova decision, Ms Patyna made no positive submissions on the legal framework point but made it clear that the Appellant reserved his position for the purpose of this appeal and any onward appeals, as to whether Vargova was correctly decided.
23. Ms Patyna also made no positive submission in respect of Ground 4. She acknowledged that we are bound by the Court of Appeal decision in Zulfiqar in which Underhill LJ stated at [44] that: “the public takes the view that non-UK nationals who have committed serious offences should generally not be permitted to continue to live here (following their release from prison); and…it is in the interests of maintaining public confidence in the system, and thus in the public interest, that that view should be given effect to.”

Submissions
24. Ms Patyna and Mr Lindsey relied on the relevant parts of the skeleton argument, dated 9 December 2024, and the Rule 24 Response, dated 24 June 2024, respectively. Although there is a substantial body of jurisprudence as to the meaning of "family life", no decision was cited to us in which the issue of adult and minor siblings living together has been discussed.
25. Ms Patyna submitted (in respect of Ground 2) that the Judge, in finding that there was no family life between the Appellant and his minor siblings wrongly imported the test which normally applies to adult family members as set out in Kugathas v Secretary of State for the Home Department [2003] EWCA Civ 31. It was submitted that the Judge should have applied the wider test of ‘the real existence of close personal ties’: see R (Singh) v ECO 2005 QB 608 at [20]. Further, it was submitted that the Judge misapplied the principle of best interests of the child by considering whether the Appellant’s help was “essential.” There was no proper analysis of the emotional impact on the younger siblings and the Judge failed to consider the requirement of the State to positively desist from inhibiting the development of family life (see Ahmadi v SSHD [2005] EWCA Civ 1721 at [18] . It was also submitted that the Judge failed to consider relevant considerations, including the history of the Appellant’s mother’s medical conditions and that the Appellant lived in the family home following his release from detention. The errors were said to be plainly material as the Judge then undertook her analysis of the proportionality of the Appellant’s deportation solely with reference to his private life. Ms Patyna, in support of Ground 3, submitted that the Judge purported to apply HA (Iraq) when considering the public interest but failed to appreciate the distinction between positive evidence of rehabilitation and the absence of further offending.
26. Mr Lindsey submitted that although the relationship between siblings is one of the four key relationships which normally fall within Article 8, the Court of Appeal in Saliu v SSHD [2021] EWCA Civ 1847, was clear that no presumption of family life arose; a fact-sensitive assessment was required. It was further submitted in relation to Ground 3 that the Judge expressly referred at [25] to the OASys report dated 4 January 2024, and to its conclusion that the Appellant presented a “low” risk of reoffending. The Judge’s consideration of the public interest that follows is consistent with the authorities.

Discussion and Conclusion
Ground 2 – Family Life
27. There are three elements to Ground 2. First, the Appellant argues that the Judge applied the wrong legal test in determining whether he has a family life with his minor siblings. We do not accept this submission. The judgment in Kugathas reflects the understanding that relationships between adult family members are typically less intense or dependent than those between children and their parents and therefore require a more nuanced analysis to determine the existence of family life. The Court emphasized that family life will not automatically exist unless there is more than just emotional affection. The key issue in Singh v ECO was whether the minor child could establish family life with his adoptive parents in the UK, even though the adoption was not formally recognized in the UK. The Court held that family life could exist for a minor child with their adoptive parents even in the absence of a formal legal relationship, provided that the child had developed significant emotional and practical ties with the parents. Importantly, the judgment underscored the understanding that the family life of minors is often more readily established due to their dependency on parents or caregivers. The Court acknowledged the "real existence" of emotional and practical support as a sufficient basis for finding family life, irrespective of formal legal recognition.
28. In the present appeal, the Judge correctly applied the test set out in Kugathas, by considering the nature of the relationship between the Appellant and his minor siblings as well as factors such as age, living arrangements, and the nature of any dependency or support. The Judge found that there was no evidence of dependency or any substantive support beyond the usual emotional ties, and thus no family life was established between the Appellant and his minor siblings. The Judge’s reliance on the Kugathas test, which emphasizes support and dependency, is entirely consistent with the approach required for evaluating family life, whether the siblings are adults or minors. Singh v ECO addressed the relationship between a minor and a parent, a significantly different context from that of adult siblings. While Singh v ECO may offer a broader approach for evaluating family life in cases involving minor children, it does not alter the requirement for a fact-sensitive assessment in the context of an adult and minor siblings.
29. Secondly, it is argued that the Judge failed to properly consider the emotional impact of separation on the Appellant’s minor siblings and focused too narrowly on whether his help was "essential" to the family unit. The difficulty with this argument is that even if it were assumed that the Judge erred in the assessment of family life, such an error would not materially affect the outcome of the proportionality assessment. In cases such as this, the issue of family life is closely tied to the proportionality of any interference with that family life. The real question is whether it would be disproportionate to remove the Appellant from the UK, considering all the factors involved, including the best interests of his minor siblings. As the Respondent correctly submits, the Judge’s findings, including his finding that the Appellant was asked to leave the family home due to concerns for his siblings' welfare, effectively disposes of any challenge relating to the alleged existence of family life or the emotional impact on the siblings. Even if family life were to be found, the proportionality of removing the Appellant would still need to be assessed based on the totality of the circumstances, including his age, the nature of his relationship with his family, and the reasons for his removal – see Singh & Anor v SSHD [2015] EWCA Civ 630 where it was stated that “…the debate as to the whether an applicant has or has not a family life for the purposes of Article 8 is liable to be arid and academic”. The Judge’s decision on proportionality, based on the facts of this case, is entirely sustainable. The Judge was entitled to conclude that the Appellant’s removal would not constitute a disproportionate interference with his family life, even if it were assumed that such family life existed.
30. Thirdly, it was argued that the Judge failed to consider relevant considerations. This challenge is without merit. It is trite law that a judge does not need to refer to all the evidence that has been considered. and the mere fact that certain parts of the evidence were not specifically mentioned does not mean it has been overlooked. As it happens, the Judge carefully considered the medical history of the Appellant’s mother as summarised in paragraphs 14 above. Furthermore, the Judge specifically noted at [27] and [28] that the Appellant had been helping out with B1 and that his dependency on his father was temporary, given his recent release from prison on license. It is clear based on a fair reading of the decision that the Judge was well aware that the Appellant was living in the family home.
Ground 3 – Rehabilitation
31. The ground of appeal asserting that the Judge purported to apply HA (Iraq) but failed to appreciate the distinction between positive evidence of rehabilitation and the absence of further offending is without merit. At [25] the Judge expressly considered the probation assessment, which concluded that the Appellant presented a "low" risk of reoffending. The Judge notes that the OASys assessment found that the Appellant would be at low risk of reoffending and that the Appellant had not, in fact, reoffended since his release from prison. The Judge gave weight to the OASys report whilst noting that the Appellant had been subject to licence conditions, was still subject to the threat of deportation and had been involved in a fight shortly before his release.
32. The Supreme Court in HA (Iraq) was clear in that judgment that the weight to be accorded to that factor would be “a matter for the fact finding tribunal” [at 119]. At [35], the Judge's reference to the "low" risk of reoffending is entirely consistent with the approach outlined in HA (Iraq), where the assessment of rehabilitation and the likelihood of reoffending are key factors in determining whether the public interest in removal outweighs the private and family life considerations. Ground 3 fails to acknowledge that on a fair reading of the decision the Judge was not simply considering the absence of further offending, but also the positive evidence of rehabilitation, as assessed by the probation service. The Judge’s treatment of the public interest, as set out at [36]-[37], is in line with established authorities, including HA (Iraq), and the Judge properly balanced the relevant factors in reaching a conclusion that was legally sound and factually supported.
Conclusion
33. An appellate court or tribunal may not interfere with findings unless they are ‘plainly wrong’ or 'rationally insupportable’ as per Volpi & Anor v Volpi [2022] EWCA Civ 464, [2022] 4 WLR 48. It is well-established that judicial restraint must be exercised when considering whether to set aside the decision of a specialist fact-finding Tribunal. An appeal before the Upper Tribunal is not an opportunity to re-evaluate the quality of the reasons to assess whether they are wanting on the merits. The decision of the Judge must be considered in its entirety. The decision is structured and a contextual reading of the decision shows that the Judge, having analysed all the evidence and submissions, provided sustainable reasons, concluding ultimately as stated in the decision. We sympathise with the Appellant but when a judge applies the correct legal tests, even if the outcome is perceived as harsh, it does not automatically mean the decision is legally erroneous.
34. We are satisfied that there were no identifiable material errors of law in the decision by the Judge, and the law was applied correctly, with sufficiently clear findings and reasons provided. We are satisfied that the Judge correctly identified the correct tests and legal thresholds which it was required to apply in considering these appeals.
35. Accordingly, we conclude that none of the grounds of appeal identify a material error of law.

Notice of Decision
The decision of the First-tier Tribunal did not involve the making of a material error on a point of law. Therefore, the decision of the First-tier Tribunal, which had dismissed each of the Appellant’s grounds of appeal, thereby stands.

Margaret Obi

Deputy Judge of the Upper Tribunal
Immigration and Asylum Chamber

11 April 2025