Tribunal decisions

The decision

IN THE UPPER TRIBUNAL
IMMIGRATION AND ASYLUM CHAMBER
Case No: UI-2024-002635

First-tier Tribunal No: HU/61847/2023
IA/00032/2024

THE IMMIGRATION ACTS

Decision & Reasons Issued:
On 19 March 2025

Before

UPPER TRIBUNAL JUDGE OWENS
DEPUTY UPPER TRIBUNAL JUDGE BURNETT

Between

EO
(ANONYMITY ORDER MADE)
Appellant
and

Secretary of State for the Home Office
Respondent

Representation:
For the Appellant: Mr Bryce Instructed by A Bradley and Co Solicitors
For the Respondent: Mr Mullen, Senior Presenting Officer

Heard at Field House on 28 February 2025

Order Regarding Anonymity

Pursuant to rule 14 of the Tribunal Procedure (Upper Tribunal) Rules 2008,the appellant and any member of his family is granted anonymity.

No-one shall publish or reveal any information, including the name or address of the appellant, likely to lead members of the public to identify the appellant and any member of his family. Failure to comply with this order could amount to a contempt of court.

DECISION AND REASONS

1. The appellant appeals against a decision of First-tier Tribunal Judge Byrne promulgated on 15 April 2024, dismissing his appeal on Article 8 ECHR grounds against a decision dated 18 September 2023, refusing his human rights claim in the context of a deportation order having been made against the appellant on 20 January 2020.
2. The hearing was held remotely. Neither party objected to the hearing being held in this manner. Both representatives confirmed that they could hear and see each other and there were no significant problems with connectivity once the parties had logged in.
Background
3. The appellant is a citizen of Nigeria who has lived in the UK since 2005. He most recently held further leave to remain. He has two Irish citizen daughters who reside in the UK and he is separated from his wife who also resides in the UK with one of his daughters. On 6 December 2019, he was sentenced to 15 months imprisonment having been convicted of conveying articles into prisons. After being served with a deportation order on 20 January 2020 the appellant made further representations which resulted in a refusal of a human rights claim. This is the decision which is the subject of this appeal.
4. The appellant accepts that he is a “medium offender” because his sentence exceeds 12 months. He accepts that he meets neither of the Exceptions at s 117C of the Nationality, Immigration and Asylum Act 2002 because he has not remained lawfully in the UK for over half of his life and his children are now adults. His case is that there are “very compelling circumstances” over and above the Exceptions which outweigh the public interest in his deportation. These include his age, his length of his residence in the UK, his rehabilitation and his family ties in the UK.
5. The position of the respondent is that the public interest in deportation outweighs the appellant’s right to respect for family and private life. None of the Exceptions apply. There are no “very compelling circumstances”. His daughters are adults and independent. They are able to relocate to Nigeria. He can access medical treatment in Nigeria and his offence was serious.
The decision of the First-tier Tribunal
6. The judge heard evidence from the appellant and his two daughters. The judge found that the offending was serious and there was a strong public interest in deportation. The appellant has a genuine and subsisting relationship with his two adult daughters although they live independently and have separate lives. Article 8 ECHR was engaged in respect of family life with his daughters. The appellant is separated from his wife. The appellant has Hepatitis B but there was insufficient evidence that he could not access treatment in Nigeria. The appellant is not rehabilitated although he has not reoffended. The evidence did not persuade the judge that there was a low risk of re-offending. The appellant has spent the majority of his life in Nigeria and can live with his mother in Nigeria. His adult daughters are able to visit him there because they have previously visited Nigeria. He has found work as a healthcare assistant in the UK. There was a lack of evidence that he could not find work in Nigeria. Overall, the judge found that the factors raised by the appellant do not amount to “very compelling circumstances” that outweigh the public interest in the deportation of foreign nationals. The judge dismissed the appeal on Article 8 ECHR human rights grounds.

Grounds of appeal
7. The grounds of appeal are as follows:
(1) Failure to take into account material factors and misdirection of law
The judge has erred by failing to take into account that the appellant has remained lawfully in the UK for the vast majority of the last 19 years. The judge misdirected himself by finding that this immigration status was “precarious”.
(2) Failure to give weight to the evidence of rehabilitation when assessing very compelling circumstances
There has been no further evidence of criminality. The appellant has found work as a healthcare assistant and has the trust and confidence of his current employer. The judge failed to give “due regard” to his conduct since his release from prison. The appellant has been making a valuable contribution to society and the evidence demonstrates that he is rehabilitated and there is a low risk of reoffending. The judge failed to have regard to this evidence.
(3) Ground 3 largely repeats grounds 1 and 2 and states that if the judge had given adequate consideration to the above factors and properly considered the evidence in the round he would have found that there are were “very compelling circumstances” which outweighed the public interest in deportation.
Permission to appeal
8. Permission to appeal was granted by First-tier Tribunal Judge Turner on 24 May 2024. Permission was granted on Ground 1 only but the grant of permission did not make an order granting permission in part so we will address both grounds of appeal.
9. There was no rule 24 response but Mr Mullen indicated that the respondent opposes the grounds of appeal. Mr Bryce submitted that the judge’s finding that the little weight provisions applied to his private life had also seeped into consideration of his family life
Submissions
10. Both parties made brief submissions which are recorded in the record of proceedings and to which we will refer below.
Discussion and analysis
Ground 1
11. The judge set out the appellant’s immigration history at [20],[22] and [23] of the decision. It is manifest that the judge was fully aware of the appellant’s immigration history and his status in the UK. In these paragraphs, he recorded that the appellant left Nigeria in 2000, going to Ireland where he resided with his wife. His daughters are Irish citizens by virtue of being born in Ireland. He entered the UK with his wife and children in February 2005 and they were issued with residence cards for a five year period until March 2011. The judge notes that applications for permanent residence cards were refused. Appeals against these decisions were allowed by the First-tier Tribunal but overturned by the Upper Tribunal. Subsequently the appellant was granted 20 months leave to remain on 24 June 2016. The appellant’s criminal offending took place in this period.
12. At [46] the judge observes that the appellant spent his first 34 years in Nigeria, then five years in Ireland before spending 19 years in the UK. The judge expressly notes that the appellant has spent many years in the UK and at [50] the judge finds that outside of his family the appellant has a network of friends including friends he has met through his church.
13. The written submission that the judge has not taken into account that the appellant has spent a long period of time lawfully in the UK is not made out. The judge expressly refers to the long residence and explicitly takes it into account when considering the issue of “very compassionate circumstances”. This ground in reality is a complaint about the weight that the judge gave to this factor. It is trite that weight is a matter for a judge and does not amount to an error of law.
14. Ground 1 as drafted also implies that the judge has misdirected himself in law when referring to this residence as “precarious” at [46] and at [52]. We are not satisfied that the judge has misdirected himself in law in this respect. The judge is required to have regard to the statutory considerations at section 117B(5) of the Nationality, Immigration and Asylum Act 2002. This states that “little weight” should be given to a private life established by a person at a time when the person’s immigration status is precarious. This is the wording of the statute. The case of AM (s 117B) Malawi [2015] UKUT 0260 (IAC) makes it very clear that an individual will have a precarious immigration status (albeit if their status is lawful) if their continued presence in the UK will be dependent upon their obtaining a further grant of leave. It is a matter of fact that the appellant was never granted indefinite leave to remain or permanent residence in the UK. He has always remained in the UK with temporary leave and he required a further grant of leave to remain in the UK. The judge has therefore properly categorised his immigration status as precarious and accordingly given his private life little weight in accordance with s117B(5). There is no error of law in this approach and to give him credit Mr Bryce did not pursue this argument in oral submissions.
15. In his submissions Mr Bryce expanded on this ground arguing that the judge had impermissibly applied the “little weight” approach to his family life with his daughters. He submitted that there was a failure to compartmentalise private life and family life. He also submitted that the judge’s reference to the appellant’s family life with his daughters as not peculiarly strong was an error. When questioned by the panel, he then conceded that it was open to the judge to make a finding in relation to the quality and intensity of family life between the appellant and his daughters.
16. Having carefully considered the decision we are satisfied that the judge properly applied the little weight provisions to private life and manifestly did not apply them when he came to consider family life. There is a clear separation in the decision. The judge found that the appellant had family life with his two daughters at [44]. Although commenting that the family life is not peculiarly strong because the appellant lives separately from his adult daughters at no point does he indicate that the “little weight” provisions apply to this family life and he clearly attaches weight to this family life. It was properly open to the judge to note that much of the family life is by phone and that the daughters have travelled to Nigeria in the past. At [46] and [52] the judge is clearly referring to private life.

Ground 2
17. Although worded as a “failure to take into account” to or “give weight to factors”, this is in our view a complaint in relation to the judge’s reasoning in respect of his findings that the appellant is not rehabilitated and does not have a low risk of reoffending.
18. We have had regard to the various authorities in relation to the adequacy of reasons and interference with factual findings. We refer to the words of Dingemans LJ in Terghazi v SSHD [2019] EWCA Civ 2017 at [45];
“A further principle which it is relevant to note is that, even if an appellate court is entitled to hear an appeal because of an error of fact (because the appeal court has jurisdiction to hear appeals on facts) appellate courts should be very cautious in overturning findings of fact made by a first instance judge. This is because first instance judges have seen witnesses and take into account the whole “sea” of the evidence, rather than indulged in impermissible “island hopping” to parts only of the evidence, and because duplication of effort on appeal is undesirable and increases costs and delay. Judges hearing appeals on facts should only interfere if a finding of fact was made which had no basis in the evidence, or where there was a demonstrable misunderstanding of relevant evidence, or a demonstrable failure to consider relevant evidence so that the decision could not reasonably be explained or justified”.
19. Firstly, it is manifest from reading the decision that the judge took into account all of the evidence before him referred to in the grounds. At [39], the judge notes that the appellant has not been accused of any further criminality and at [47] the judge stated:
“I accept that it has been more than five years since the date of the offences giving rise to the imprisonment of the appellant and that there is no further evidence of criminality on his part since then”.
20. The judge is clearly aware of the lack of further offending and has factored this into his consideration. At [48] the judge refers to the appellant’s work as a healthcare assistant and that he enjoys the trust and confidence of his current employer. The judge expressly had regard to this evidence and weighed these factors in the balance.
21. The appellant was convicted of smuggling phones into prison in his capacity as a healthcare assistant. The appellant pleaded not guilty and was given 15 months imprisonment on account of this being his first offence at the age of 53.
22. The judge considers the seriousness of the offence at [37] and [38]. At [38] he says:
“On a consideration of the sentence actually imposed, together with the sentencing remarks of the sentencing judge, I adjudged the offences for which the appellant received a 15-month sentence to be significantly serious and that, accordingly, there is a significant public interest in the deportation of the appellant. In reaching this conclusion I give particular weight to the following factors: the 15-month sentence that was imposed; the multiple offences for which the sentence was imposed; the sentencing judge’s remarks to the effect that the appellant engaged in breach of trust and abuse of his position; and the sentencing judge’s remarks that case law is clear that smuggling phones into prison is a very serious matter, giving rise to multiple issues involving other forms of crime being committed, as well as giving rise to problems of prison discipline”.
23. The finding that the offending was serious has not been challenged.
24. The judge turns to whether the appellant has been rehabilitated at [39], noting firstly the lack of further offending. The judge then says:
“In line with his stance at the trial of the allegations against him, at the appeal hearing the appellant did not give evidence that came anywhere close to clear acceptance of guilt on his part. Under cross examination by the HOPO, he initially denied culpability for the offences in question before switching to apparent acceptance of guilt. However, this apparent acceptance of guilt was subsequently undermined by a denial on the part of the appellant that he had received £1500 in connection with the offences, which flew in the face of the findings disclosed in the sentencing judge’s remarks. Furthermore, under questioning from his legal representative as to how the Tribunal could be reassured by vague assertions on the part of the appellant that he did not know what had come over him at the time of the offences, the appellant simply reiterated that he did not know what had come over him at the time of the offences. The appellant’s evidence did not persuade the Tribunal that he accepted clear responsibility for the offences for which he was found guilty and, that being the case, that he could reasonably be said to have be been rehabilitated in relation to the same. To put it another way, the appellant’s evidence did not persuade the Tribunal that he is at low risk of reoffending.”
25. We are satisfied that the judge, when assessing the level of rehabilitation, was properly entitled to take into account the fact that the appellant was continuing to deny culpability and continuing to deny that he had received any money despite the findings in the criminal proceedings. The grounds do not allege any irrationality in this approach. We are also not satisfied that the reasoning in respect of rehabilitation and risk of offending was inadequately reasoned – the judge took into account the material factors and decided which factors weighed more heavily. It is manifest that the judge gave more weight to the fact that the appellant was still reluctant to admit his guilt than to the lack of any further offending and the appellant’s recent employment.
Ground 3
26. Ground 3 amounts to a general disagreement with the decision. This was repeated by Mr Bryce at the end of the hearing when he made a rather impassioned plea for clemency on the basis that this was the appellant’s first offence in a moment of madness. He was of good character until the age of 53. He would now be a 60 plus year old man returning to Nigeria where male life expectancy is 53 after being absent for 25 years and the material benefit of his crime was £1500.
27. We take into account the words of Reed LJ in Henderson v Foxworth Investments Ltd [2014] UKSC 41 at [62];
“It does not matter, with whatever degree of certainty, that the appellate court considers that it would have reached a different conclusion. What matters is whether the decision under appeal is one that no reasonable judge could have reached.”
28. We also remind ourselves of the comments of Carnworth LJ in Mukarkar approved by the Supreme Court in MM (Lebanon) [2017] SC10 that;
“The mere fact that one tribunal has reached what may seem an unusually generous view of the facts of a particular case does not mean that it has made an error of law, so as to justify an appeal under the old system, or an order for reconsideration under the new… However on the facts of a particular case the decision of a specialist tribunal should be respected”.
29. It may have been that another judge would have taken a more generous view of whether there were “very compelling circumstances” over the exceptions but the fact that a different Tribunal may have reached a different decision does not render the decision unlawful. The findings of fact were grounded in the evidence, adequately reasoned and rational and the judge applied the law correctly.
30. We are satisfied that the grounds amount to no more than a disagreement with the decision.
Notice of Decision
1. It follows that none of the appellant’s grounds of appeal are made out and the appellant’s appeal is dismissed.
2. The decision of the First-tier Tribunal dismissing the appeal is upheld.

R J Owens

Judge of the Upper Tribunal
Immigration and Asylum Chamber

19 March 2025