UI-2024-002718

• Status of case: Unreported
• Hearing date: 11 Nov 2025
• Promulgation date: 18 Dec 2025
• Publication date: 5 Jan 2026
• Last updated on: 5 Jan 2026

The decision

IN THE UPPER TRIBUNAL
IMMIGRATION AND ASYLUM CHAMBER
Case No: UI-2024-002718

First-tier Tribunal No: HU/55686/2023

LH/01579/2024

THE IMMIGRATION ACTS

Decision & Reasons Issued:

18th December 2025

Before

UPPER TRIBUNAL JUDGE BULPITT

Between

SECRETARY OF STATE FOR THE HOME DEPARTMENT
Appellant
and

OLAJIDE OLAYEMI SHINABA
(NO ANONYMITY ORDER MADE)
Respondent

Representation:
For the Appellant: Mr J Nuppey, Senior Home Office Presenting Officer
For the Respondent: Not Represented

Heard at Field House on 11 November 2025


DECISION AND REASONS

1. This is my remaking decision in respect of the appeal by Mr Shinaba against the respondent’s decision to refuse his human rights claim to remain in the United Kingdom. His appeal had been allowed by the First-tier Tribunal but following an appeal against that decision by the Secretary of State for the Home Department, sitting with Deputy Upper Tribunal Judge Kudhail, I found the First-tier made an error of law and set-aside their decision. I attach the decision of Judge Kudhail and I as an Appendix to this decision for ease of reference.

2. In accordance with section 12(2)(b)(ii) of the Tribunals Courts and Enforcement Act 2007 we decided to retain the appeal in the Upper Tribunal in order to re-make the decision concerning Mr Sinaba’s appeal against the refusal of his human rights claim. Because I am now considering the Mr Shinaba’s appeal against the Secretary of State for the Home Department’s decision I will refer to them throughout the remainder of this decision as the appellant and respondent respectively.

3. After careful consideration and having given this case anxious scrutiny I have decided that the appellant meets the requirements of one of the Exceptions to the public interest in deportation of a foreign criminal that has been mandated by Parliament. In those circumstances I have found that his deportation would amount to a disproportionate interference with his article 8 ECHR rights and would be unlawful. Accordingly I have allowed his appeal. The full reasons for this decision follow.

Factual Background

4. The appellant is 32 years and seven months old. He is a citizen of Nigeria. Although the lawfulness of his residence is disputed, the parties agree that he has been resident in the United Kingdom since June 2003 when he was ten years old.

5. In July 2003 the appellant was granted a residence card recognising that he had a right of residence under EU law as the child of an EEA national. That residence card was however revoked on 30 January 2006 when the respondent determined that the appellant’s father was not exercising Treaty rights and so neither he nor the appellant had a right of residence in the United Kingdom. On 27 January 2011 the appellant was granted discretionary leave to remain in the United Kingdom valid until 27 January 2014. That leave to remain was later extended so that it was due to expire on 27 April 2017. Before that leave expired the appellant made an application for indefinite leave to remain on the basis of his private and family life with his brother and his mother, step-father and their three British children.

6. Whilst that application was being considered, on 27 July 2018, the appellant committed an offence of affray. He pleaded guilty to that offence on 18 December 2018 and was sentenced the same day to eleven months imprisonment. When sentencing the appellant, the Judge said the following:

I will give you some credit for your plea of guilty, Even though late in the day, as we know full well, as you did, that the witness was reluctant. It may well be the officer would have arrested her and brought her here but we also know that her reluctance does not emanate through fear……
The background is, in fact that you and the complainant were friends. It was not a domestic relationship, and during your relationship with her, there have been no arguments of this type at all. The incident occurred, the background being that you were homeless, and the complainant took you in, but in July 2018 you said you were leaving the address but you returned two days later and were angry because you thought that your items would be ready for taking away. You barged into the address, an argument occurred, you pulled out a knife from your waistband and lunged towards her stomach area. She moved backwards and away. She said, are you going to attack me with a knife in front of my daughter? You stopped, and on the way out, you said that if she had been a man then you would have stabbed her. She said, in fairness to you, that she had never seen you like this before.
On the basis of your plea, which has been accepted, the crown accept: (a) that you did not bring the knife into the address, and (b) that you did not intend to stab her, just to scare her.
It is also fair to say on your behalf, that this was a short lived incident. It clearly crosses the custody threshold, even if it is a moment of madness. Your intention was to scare, but it was to scare with a knife, and it is simply not acceptable to brandish a knife in this way and it must be known now, that anyone who does so receives real punishment. I also bear in mind though, that this is your first sentence of imprisonment. It is so serious that an immediate custodial sentence must follow. The least possible sentence, bearing in mind your guilty plea, is one of 11 months imprisonment so that is the sentence of this Court.

7. On 28 December 2018 the respondent made a decision to deport the appellant (“the stage 1 decision”) as a result of his conviction and sentence. The appellant replied to the respondent’s stage 1 decision in January 2019 with representations about the private and family life he has in the United Kingdom and inviting the respondent not to deport him but instead to grant the application he made in 2017 for indefinite leave to remain.

8. It was not until 17 April 2023 that the respondent finally made the decision which is subject to this appeal. In that decision the respondent concluded that the appellant’s deportation was conducive to the public good, found that he did not benefit from either the private life or the family life exceptions to the public interest in foreign criminals being deported and that there were no very compelling circumstances to outweigh the public interest in the appellant’s deportation. The decision addressed the appellant’s application for indefinite leave to remain made in 2017 but refused it on the grounds of suitability as a result of his conviction and sentence for affray.1

The Law

9. The appellant appealed against the respondent’s decision by virtue of section 82(1)(b) of the Nationality Immigration and Asylum Act 2002 (the 2002 Act) which provides that a person may appeal to the Tribunal where the Secretary of State has decided to refuse a human rights claim. A human rights claim is defined in section 113 (1) of the 2002 Act as “a claim made by a person to the Secretary of State at a place designated by the Secretary of State that to remove the person from or require him to leave the United Kingdom, … would be unlawful under section 6 of the Human Rights Act 1998”. The grounds for his appeal are identified in s84(2) of the 2002 Act and are that the decision is unlawful under section 6 of the Human Rights Act 1998 which provides that it is unlawful for a public authority to act in a way which is incompatible with a Convention right.

10. The relevant Convention right in the appellant’s case is the right which everyone enjoys to "respect for his private and family life" under Article 8(1). Article 8(2) prohibits "interference by a public authority with the exercise of this right" except to the extent that the interference "is in accordance with the law and is necessary in a democratic society" for one or more legitimate purposes or aims. The list of legitimate purposes and aims includes "public safety or the economic wellbeing of the country … the prevention of disorder or crime …[and] the protection of the rights and freedoms of others."

11. Part 5A of the 2002 Act applies when a tribunal is required to determine whether a decision made under the Immigration Acts is unlawful because it breaches a person’s Article 8 rights. It requires the tribunal to have regard in all cases to s117B of the 2002 Act which provides:

Article 8: public interest considerations applicable in all cases
(1) The maintenance of effective immigration controls is in the public interest.

(2) It is in the public interest, and in particular in the interests of the economic well-being of the United Kingdom, that persons who seek to enter or remain in the United Kingdom are able to speak English, because persons who can speak English—
(a) are less of a burden on taxpayers, and
(b) are better able to integrate into society.

(3) It is in the public interest, and in particular in the interests of the economic well-being of the United Kingdom, that persons who seek to enter or remain in the United Kingdom are financially independent, because such persons—
(a) are not a burden on taxpayers, and
(b) are better able to integrate into society.

(4) Little weight should be given to—
(a)a private life, or
(b)a relationship formed with a qualifying partner,
that is established by a person at a time when the person is in the United Kingdom unlawfully.

(5) Little weight should be given to a private life established by a person at a time when the person's immigration status is precarious.

12. Additionally, in cases involving a foreign criminal the tribunal must have regard to s117C of the 2002 Act. A foreign criminal is defined in s117D(2) as a person who is not a British citizen, has been convicted of an offence in the United Kingdom and “(i) has been sentenced to a period of imprisonment of at least 12 months, (ii) has been convicted of an offence that has caused serious harm, or (iii) is a persistent offender. Section 117C of the 2002 Act provides:

Article 8: additional considerations in cases involving foreign criminals
(1) The deportation of foreign criminals is in the public interest.

(2) The more serious the offence committed by a foreign criminal, the greater is the public interest in deportation of the criminal.

(3) In the case of a foreign criminal (“C”) who has not been sentenced to a period of imprisonment of four years or more, the public interest requires C's deportation unless Exception 1 or Exception 2 applies.

(4) Exception 1 applies where—
(a) C has been lawfully resident in the United Kingdom for most of C's life,
(b) C is socially and culturally integrated in the United Kingdom, and
(c) there would be very significant obstacles to C's integration into the country to which C is proposed to be deported.

(5) Exception 2 applies where C has a genuine and subsisting relationship with a qualifying partner, or a genuine and subsisting parental relationship with a qualifying child, and the effect of C's deportation on the partner or child would be unduly harsh.

(6) In the case of a foreign criminal who has been sentenced to a period of imprisonment of at least four years, the public interest requires deportation unless there are very compelling circumstances, over and above those described in Exceptions 1 and 2.

(7) The considerations in subsections (1) to (6) are to be taken into account where a court or tribunal is considering a decision to deport a foreign criminal only to the extent that the reason for the decision was the offence or offences for which the criminal has been convicted

13. The respondent made her decision to deport the appellant by virtue of section 3(5) of the Immigration Act 1971 (the 1971 Act) which provides that a person who is not a British citizen is liable to deportation if the Secretary of State deems his deportation conducive to the public good, and section 5(1) of the 1971 Act which provides that where a person is liable to deportation the Secretary of State may make a deportation order against him. There is no right to appeal against a decision to make a deportation order.

14. In Wilson (NIAA Part 5A; deportation decisions) [2020] UKUT 00350 (IAC) a presidential panel of this Tribunal considered the interplay between the decision to make a deportation order which does not carry a right of appeal and the refusal of a humans rights claim which does carry a right of appeal and said the following in headnote B to their decision:

(1) In a human rights appeal, the decision under appeal is the refusal by the Secretary of State of a human rights claim; that is to say, the refusal of a claim, defined by section 113(1) of the Nationality, Immigration and Asylum Act 2002, that removal from the United Kingdom or a requirement to leave it would be unlawful under section 6 of the 1998 Act. The First-tier Tribunal is, therefore, not deciding an appeal against the decision to make a deportation order and/or the decision that removal of the individual is, in the Secretary of State’s view, conducive to the public good. It is concerned only with whether removal etc in consequence of the refusal of the human rights claim is contrary to section 6 of the Human Rights Act 1998. If Article 8(1) is engaged, the answer to that question requires a finding on whether removal etc would be a disproportionate interference with Article 8 rights.

(2) The Secretary of State’s decisions under the Immigration Act 1971 that P’s deportation would be conducive to the public good and that a deportation order should be made in respect of P would have to be unlawful on public law grounds before that anterior aspect of the decision-making process could inform the conclusion to be reached by the First-tier Tribunal in a human rights appeal.

Preserved findings made by the First-tier Tribunal Judge

15. The appellant gave evidence before the First-tier Tribunal saying he was in a relationship with a British partner “Z” who he had married in an Islamic ceremony on 13 August 2021. He said that he had two children with Z: “B” who was born on 14 June 2022 and “C” who was born on 15 November 2023 and that both B and C were British citizens. He explained that he had a third daughter with a previous partner: “A” who was born on 17 February 2018 and who was also British. Z also gave evidence at the hearing and said that she also has a British son from a previous relationship who lives with her “D”. Having heard their evidence the First-tier Tribunal Judge found that the appellant is in a genuine and subsisting relationship with Z who is a qualified partner for the purposes of the 2002 Act and that the appellant is in a genuine and subsisting parental relationship with B and C who are both qualified children as defined in the 2002 Act. As these findings of fact were not infected by an error of law I preserved them for the purpose of this hearing.

16. The First-tier Tribunal Judge also made a finding that the appellant is a foreign criminal as defined in the 2002 Act because the offence of affray caused serious harm and because he is a persistent offender. Again that finding as not infected by an error in law and it was not challenged. I preserved that finding as well.

17. I found however that the Judge did err in law in his consideration of Exceptions 1 and 2 to the public interest in the deportation of foreign criminals identified in s.117C(4) and s.117C(5) of the 2002 Act. I therefore identified that it was necessary to determine:

i. Whether Exception 1 to the public interest in deportation applies as the appellant fulfils all three limbs of section 117C(4) of the 2002 Act
ii. Whether Exception 2 to the public interest in deportation applies as the effect of the appellant’s deportation would be unduly harsh on one of Z, B or C;

If the answer to both questions is no then -

iii. Whether in all the circumstances the appellant has established very compelling circumstances over and above the two Exceptions that outweigh the public interest in his deportation.

The re-hearing in the Upper Tribunal

18. Having set-aside the decision of the First-tier Tribunal I issued directions for the service of updating evidence about events since the hearing before the First-tier Tribunal and written arguments about the first limb of Exception 1. The appeal was adjourned for a further hearing which was delayed after the appellant parted company with his solicitors and because the appellant informed the tribunal that Z had suffered a miscarriage and in those circumstances he required further time to prepare for a hearing.

19. In anticipation of the hearing the appellant submitted a 64 page “Affidavit and Statement” in which he argued, by reference to a dispute between someone called David Ward and Warrington Borough Council, that there is no such thing as “law” and that the respondent and tribunal have no authority to make orders concerning him. The appellant also adduced an affidavit from Z in which she states that the appellant is the father of C.

20. The respondent served a skeleton argument and a response to directions about the first limb of Exception 1 in s.117C(4) of the 2002 Act. In that response she acknowledged that the appellant’s application for indefinite leave to remain in April 2017 had the effect of extending his leave to remain by virtue of s.3C of the 1971 Act until the application was resolved. She argued however that the appellant’s lawful residence in the United Kingdom ended on 17 April 2023 when that application was refused and in those circumstances the appellant had only been lawfully resident in the United Kingdom for 14 years and 8 months of his life which is less than half of the 32 years and 6 months of his life.

21. On the morning of the hearing the appellant additionally served a statement and exhibits. This statement and the exhibits came in three PDF documents: “Exhibit A” consisting of 14 pages; “Exhibit B” consisting of 11 pages, and “Statement and Asseveration of Truth Affidavit” consisting of 21 pages.

22. In “Exhibit A” the appellant repeated the argument made in the earlier Affidavit that there is no such thing as law and asserted that the respondent’s decision dated 17 April 2023 was fraudulent and of no legal force.

23. In “Exhibit B” the appellant addresses the criminal convictions recorded against him. He acknowledges that he has accumulated the convictions but argues that they “are more accurately understood as manifestations of his unresolved trauma, mental health issues, and reactions to police misconduct”. He goes on to describe an incident on 12 November 2008 when he was 15 years old and was attacked and as a result suffered a fractured skull. He was taken to hospital where the fracture to his skull was not identified and he was discharged. Upon his discharge he was detained by police officers who held him in a cell, with his at that time undiagnosed fractured skull, while they investigated the incident which resulted in his injuries. Eventually the police decided to take no action against the appellant and released him from detention. Over the following days he grew increasingly unwell and on 18 November 2008 was taken to a different hospital where the fracture to his skull was identified. He was transferred as an emergency to a third hospital and admitted to a High Dependency Unit where he suffered a seizure. He stayed in hospital for three months and was observed to be suffering from significant cognitive difficulties. He was eventually discharged with the expectation that he would have cognitive rehabilitation and his cognitive abilities were to be re-assessed. The appellant says that this traumatic incident impacted his trust in authority figures and that his offending should be understood as his trauma response and not a pattern of predatory criminality. The remainder of “Exhibit B” argues that the decision to classify the appellant as a “foreign criminal” and pursue his deportation contravened fairness and human dignity, arguing that there had been no consideration of the appellant’s personal history, mental health and social circumstances. In these circumstances it is argued that his deportation would violate his Convention rights.

24. In the “Statement and Asseveration of Truth Affidavit” the appellant describes his private and family life in the United Kingdom. He states that he attended primary school, secondary school, college and University in the United Kingdom, that all his immediate family and childhood friends are in the United Kingdom, that his wife and children are settled in the United Kingdom and argues that his deportation would constitute unduly harsh treatment of his family. He says that having suffered a miscarriage in June 2025, Z is now pregnant again and that he helps Z with everyday tasks and cares for their children. He says he also provides support to his mother who suffers osteoarthritis and to his brother who has autism. He argues that Nigeria is unsafe, referring to a childhood friend who was deported to Nigeria and has subsequently gone missing. The PDF document includes photographs of the appellant with his family, evidence of Z suffering a miscarriage at 16 weeks gestation in June 2025 and the consequent burial of their child in Essex, plus photographs of identity documents for the appellant’s father, step-father, mother, full brother, half brother, two half-sisters, Z, B, C and D. The appellant argues in this statement that his deportation would be incompatible with his Article 8 right to respect for his private and family life. He identifies the length of time it has taken the respondent to decide his application for leave to remain made in April 2017 and to decide whether to make a deportation order, explaining that his mother and brother who made applications for leave at the same time as he did saw their applications granted much sooner. He argues that this discrepancy has been unfair. He further argues that his deportation would result in his separation from his wife and children and would be contrary to their well-being. Given the trauma he has suffered and the effect his deportation would have on his children the appellant argues in his statement that deportation would be disproportionate.

25. The appellant was unrepresented at the hearing. I conducted the hearing in accordance with the Tribunal’s overriding objective of dealing with cases fairly and justly which includes avoiding unnecessary formality and seeking flexibility in the proceedings as well as ensuring, so far as is practicable that parties are able to participate fully in the proceedings (see rule 2 of the Tribunal Procedure (Upper Tribunal) Rules 2008). This involved me giving breaks to enable Mr Nuppey to consider the evidence the appellant served late, adapting the procedure to enable Mr Nuppey to respond to points that were raised late by the appellant, allowing the appellant to leave the room when Mr Nuppey was making submissions that he found distressing and asking questions of the appellant to elucidate information from him which was not included in his statements. As a result of those questions the appellant provided three further letters concerning his head injury –from Dr Turkova dated 18 November 2008, Dr McCormack dated 16 April 2009 and Dr McCormack dated 17 September 2009. Those letters detail the appellant’s admission to hospital in November 2008, his review by Dr McComark in April 2009 when he said he was feeling better than prior to his injury, and the fact the appellant failed to attend a further review that had been booked with Dr McCormack in September 2009.

26. Although “Exhibit A”, “Exhibit B” the “Statement and asseveration of truth” and the three letters from the doctors were submitted late, having been given time to read and consider the material, Mr Nuppey did not oppose them being admitted in evidence and I determined that in all the circumstances it would be fair and just to do so. I reached this decision because the evidence is clearly of great relevance to the issues and the omission of this evidence from the material served by the appellant prior to the hearing in the First-tier Tribunal could not be attributed solely to the appellant given he was at that time represented by solicitors.

27. The appellant declined to give oral evidence during the hearing having been informed that doing so might reduce he weight that can be attached to his written evidence and submissions.

28. I heard submissions which were ably made by Mr Nuppey. He argued that the appellant did fulfil any of the three limbs to Exception 1 to the public interest in deportation. In respect of the first limb he asserted that the appellant’s leave to remain ended with the decision dated 17 April 2023 and therefore he had not been lawfully resident in the United Kingdom for more than half his life. In respect of the second limb he argued that the appellant is not socially or culturally integrated in the United Kingdom stating that very little evidence of integration had been provided and that the appellant’s criminality indicated a disrespect for laws and a lack of integration. In respect of the third limb he argued that the appellant would not face very significant obstacles to integration in Nigeria as he is fit and will have retained ties to the country through friends and family. Recognising the preserved finding that the appellant is in a genuine and subsisting relationship with Z, B, and C, Mr Nuppey submitted that it would not be unduly harsh for them to either go to Nigeria with the appellant or remain in the United Kingdom without him pointing out the elevated test that “unduly harsh” involves. Finally Mr Nuppey argued that there were no very compelling circumstances to outweigh the public interest in the appellant’s deportation, which he said was weighty given the offence involved the use of a knife to threaten a female.

29. The appellant made submissions in accordance with the written statement and exhibits he had served. He argued first that the decision to deport him was not legal. He went on to submit that he is socially and culturally integrated in the United Kingdom but that the respondent’s delay in dealing with his application for leave to remain had restricted his attempts to continue his education at University. He argued that his deportation would be unduly harsh on his wife and children as it would separate the family and leave his children without a father. He explained that the effect of the fracture to his skull was that he is slow processing information, that the damage caused by the fracture had never been properly dealt with and that with all his family and friends in the United Kingdom he had a very compelling case to be permitted to remain, especially as it was now more than seven years since his last criminal offence.

30. At the conclusion of the hearing I reserved my decision which I now provide together with my reasons.

The suggestion the respondent’s decision is not legal

31. The appellant’s suggestion that there is no such thing as law and that the decision to deport him was fraudulent and not legal, was misconceived and devoid of merit.

32. The dispute between David Ward and Warrington Borough Council has no relevance to this case, it does not establish that there is no such thing as law. The articles about taxation, the twelve presumptions of law, and the speeches made at Universities by Sir Jack Beatson and Chadran Kukathas that were adduced by the appellant, similarly were irrelevant to the decision which is under appeal and the issues to be resolved to determine the appeal. The provisions in the Companies Act 2006 about the execution of documents ae entirely irrelevant to the respondent’s decision to make a deportation order under the 1971 Act and to refuse the appellant's human rights claim. It is not clear where these arguments derived from, but they were an unhelpful distraction from the serious issues that were to be resolved.

33. The legal position is straight forward. The Secretary of State unquestionably has the power by virtue of the 1971 Act to make decisions about whether foreign nationals are permitted to enter and remain in the United Kingdom. As identified at [14] above, by virtue of section 3(5) of the 1971 Act a person who is not British is liable to deportation if the respondent deems that their deportation is conducive to the public good and by virtue of s5(1) of the same Act the Respondent may make a deportation order in respect of someone who is liable to deportation. The decision by the respondent was therefore in accordance with the law and must be respected in accordance with the rule of law. The real issue for this appeal is whether the associated decision to refuse the appellant’s human rights claim was unlawful under the Human Rights Act because it was incompatible with the appellant’s Convention right to respect for his private and family life.

34. To answer that question I must first make findings of fact about the appellant’s circumstances. This is again an entirely lawful process because, contrary to the submissions in the Affidavit adduced by the appellant, as a Judge of the Upper Tribunal I am empowered to do just that by the Tribunals Courts and Enforcement Act 2007.

Findings of Fact

35. Although there is no record of when the appellant arrived in the United Kingdom, there is no dispute about the fact that he has been continuously resident in the country since July 2003 which is when he was first granted an EEA residence card. The lawfulness of the appellant’s residence throughout his time in the United Kingdom is disputed and I consider that later in this decision when assessing Exception 1. For now I record my finding on the undisputed evidence that the appellant has been resident in the United Kingdom since he was ten years old for a period, at the day of the hearing before me, of twenty two years and four months.

36. I accept the appellant’s evidence in his Statement and Asseveration of Truth that he attended primary school, secondary school and College in London. The bundle of evidence prepared by the appellant for the original hearing in the First-tier Tribunal includes evidence of that schooling including school reports and GCSE certificates It is apparent from the school reports that for much of his secondary education the appellant was at a Pupil Referral Unit rather than a mainstream school and that his education included lessons particularly relevant to life in the United Kingdom such as Personal Social Health Education (PSHE) and Citizenship.

37. The appellant’s evidence is that he lived with his mother, step-father and siblings in South East London during this time. Identity documents for those family members have been adduced. The appellants father wrote to the respondent in reply to the 2019 notice of intention to deport and also said that the appellant spent his childhood in the United Kingdom. The medical evidence from the incident in November 2008 confirms that the appellant was brought to appointments by his mother and step-father which supports the appellant’s account. There was however no up to date statements from the appellant’s family members.

38. I conclude from this evidence that having arrived in the country as a ten years old, the appellant spent his formative years with his mother, stepfather and siblings in London. I find that he developed and was educated in London and that as well as his formal education he learnt during this time about citizenship and life in the United Kingdom. I accept the appellant’s evidence that the last time he visited Nigeria was in 2004. Despite this, given that his mother father and step-father were all born in Nigeria I find that it is likely that the appellant will have retained some connection to Nigerian culture albeit without any adult experience of the country. The appellant says that as a child he had no awareness of any issues about his immigration status and I accept that is likely to be true. It is important to recognise that as a child at the time the appellant had no say over whether he came to the United Kingdom and whether he stayed. I find that by the time he reached adulthood the appellant considered himself as a Londoner who was settled in the United Kingdom.

39. The appellant describes the incident in 2008 which resulted in him suffering a fractured skull as traumatic. I have no doubt this is true. The medical evidence identifies the catastrophic failure by the first hospital to identify the fracture to his skull he suffered following an assault. Given that he was suffering from the effects of that fractured skull and brain contusion while he was subsequently detained in a cell at the police station, it is readily apparent why the appellant says the incident left him with a lack of trust in authority figures. It is apparent from the medical evidence that the short term effect of the fracture to the appellant’s skull and the brain contusion was severe. He spent time in the High Dependency Unit during a prolonged stay in hospital. The neuropsychological test reports from following an assessment of the appellant on 2 December 2008 reveal that his information processing speed and verbal memory was “extremely low” and that his level of general intellectual ability fell in the “extremely low” range. The report by Dr German notes the results represented a marked decline from the average ability his school said he had before the incident. It also notes that the appellant did not seem to have a full awareness of the extent of his difficulties and so may not be able to monitor his own behaviour and safety effectively, and concluded that he required constant supervision and cognitive rehabilitation.

40. The letter from Dr McCormick dated 16 April 2009 records that the appellant was seen again in a follow up clinic six months later and claimed to be better than he was before the incident. Dr McCormick requested a follow-up psychological profile to review any lasting damage but it is apparent from the second letter by Dr McCormick dated 17 September 2009 that the appellant did not attend that assessment and did not return for a follow up appointment with Dr McCormick. That being the case he was discharged from the clinic without being seen again on the presumption that there were no ongoing difficulties. The appellant said that he did not see any further doctors. The evidence therefore is that there has been no investigation into the long term effect of the fractured skull and brain injury the appellant suffered at the age of fifteen. I find that this has had a profound effect on the appellant and his ability to interact with others.

41. The evidence of what the appellant did after he left school is scant. Certificates show he studied retail knowledge in 2015 and labouring in 2016. The appellant says that he attended College and that he applied to go to University but that his ambitions were thwarted by the respondent’s failure to determine his application for further leave to remain made in March 2017. There is however a lack of evidence about the appellant’s activities since he left College including little evidence from family members such as the appellant’s mother and brother. Whilst it is apparent that the appellant has remained in the same area of South East and East London and I am satisfied that he has remained in contact with his family in that area, there is no evidence of him being in regular employment and his life appears to have become somewhat chaotic.

42. The appellant says that in February 2018 he had a daughter A. A letter from A’s mother was provided with the representations against deportation the appellant submitted to the respondent in 2019. Although the respondent does not accept the existence of A in her decision the appellant was not challenged when he gave evidence about A before the First-tier Tribunal. I am satisfied that A does exist, that she is British but in the absence of any up to date evidence I find that the appellant has only limited contact with her now.

43. It is illustrative of the unsettled lifestyle that he was living at the time, that the offence of affray the appellant committed in July 2018 which resulted in his imprisonment, was directed towards a friend who had taken him in when he was homeless. Although the appellant did not accept the sentencing Judge’s description of that offence was accurate, I am satisfied that the offence did occur in the way the sentencing judge described as set out at [6] above. I reach that conclusion because the sentencing Judge had access to all the evidence, the appellant was represented by a solicitor and made admissions to the offence on an agreed basis which was reflected in the Judge’s summary. That agreed basis included the fact that although he did not bring a knife with him to the house the appellant used a knife to scare his former friend in what the Judge described as “a moment of madness.”

44. Despite the fact the 11 month sentence imposed on the appellant on 18 December 2018 meant that he had already served the custodial part of his sentence, the appellant remained in immigration detention until he was eventually released in early 2019 to reside his mother and step-father. The appellant says that it was in 2020 that he began his relationship with Z, that the couple had an Islamic marriage in August 2021, and that they have two British children together. I have preserved the findings made by the First-tier Judge that the appellant is in a genuine and subsisting relationship with Z and a genuine and subsisting parental relationship with B and C. The finding of the First-tier Judge was that the appellant is “heavily involved” in the care of the children, provides support to Z in caring for the children and spends significant periods of time with them all.

45. It is the appellant’s evidence that he lives with Z and the children and that since the Judge made those findings Z became pregnant but suffered a pregnancy loss at 16 weeks gestation on 23 June 2025. He says that child is buried at a cemetery in Essex. The appellant says that Z is now pregnant again. This evidence from the appellant comes from his “Statement and Asseveration of Truth.” He elected not to give oral evidence to this effect. This may give rise to an inference that the appellant was not telling the truth and chose not to give evidence because he knew the claim where not bear the scrutiny of cross examination. In this instance however, I am satisfied that notwithstanding his unwillingness to give oral evidence and be cross examined, the appellant is telling the truth about living with Z, B and C and about Z being pregnant with another child. I reach this conclusion because the appellant’s “Statement and Asseveration of Truth” contains documentary evidence that supports his written evidence including a pregnancy loss certificate, burial appointment from the cemetery and appointment with the midwifery service of the Royal London Hospital.

46. The appellant’s evidence is that while he lives with Z, B and C he also provides regular support for his mother who suffers from osteoarthritis and his brother who is autistic. The appellant has adduced medical appointment letters for his mother and brother which indicate that those diagnoses are correct. He has however given no real detail of what support he provides to his mother and brother or how often he seems them. On the evidence before me I find that the appellant does have emotional ties and a loyalty to his mother and his autistic brother (as well as his other siblings) and that he sees them with some regularity. I am not satisfied however that there is any additional element of dependency beyond those emotional ties between the appellant and his extended family.

47. The appellant says that while he worked when first released from prison his attempts to find further work have been frustrated by the long delay in a decision about his leave to remain. I accept that is likely to have posed a practical barrier to employment for the appellant. The appellant says that while not employed he has claimed Universal Credit and I find that is likely to be true.

48. Overall therefore I find that the appellant has during his twenty two years of residence in the United Kingdom established a strong private life which involves relationships with his mother, father, step-father and siblings. Having developed and been educated in London the appellant has become familiar with and participated in the customs, language and practices of London life, through which he has a sense of belonging in the city which was part of his formation. I also find that he has, since his release from prison and while waiting for the respondent to make a decision about his application for indefinite leave to remain, formed a family life with Z, B and C and Z’s son D. That family life involves the appellant caring for the children and supporting Z in the home.

Application of the facts to the law

Exception 1 – lawfully resident in the United Kingdom for most of his life

49. The first limb of Exception 1in s117C(4) of the 2002 Act is the requirement that the appellant has been lawfully resident in the United Kingdom for most of his life. As Lord Justice Leggatt (as he then was) made clear in CI (Nigeria) v SSHD [2019] EWCA Civ 2027, this involves a quantitative rather than qualitative assessment. On the date of the hearing before me the appellant was 32 years and seven months old. He will therefore meet the requirements of the first limb of Exception 1 if at the date of the hearing he had been lawfully resident in the United Kingdom for 16 years and four months. Whilst this would appear a straight forward question in practice answering it is far from straight forward.

50. There is no dispute about the fact the appellant was lawfully resident in the United Kingdom between June 2003 when he was issued with an EEA residence card and January 2006 when that card was revoked – a period of 2 years and six months., There is no evidence that the appellant had a lawful basis for his residence in the United Kingdom between the revocation of his residence card and the grant to him of discretionary leave to remain on 27 January 2011. By 26 January 2011 therefore the appellant had been lawfully resident in the United Kingdom for two years and six months.

51. The grant of discretionary leave to remain to the appellant on 27 January 2011 was until 27 January 2014, however before that leave expired, the appellant made an application to extend it which resulted in a further grant of leave. That leave was due to expire on 27 April 2017 but before it expired, on 17 March 2017, the appellant made the application for indefinite leave which remained unanswered until 17 April 2023 when the respondent issued the decision which led to this appeal. This history is not contested. What is in dispute however is whether the leave first granted on 27 January 2011 has expired and if so when?

52. In the respondent’s 17 April 2023 decision letter she calculates the appellant’s leave to remain as beginning in January 2011 and ending on 27 April 2017. This calculation however fails to acknowledge the effect of s.3C of the 1971 Act on the appellant’s application in March 2017 to extend his leave to remain. Section 3C provides so far as is relevant:

3C Continuation of leave pending variation decision
(1)  This section applies if—
(a)  a person who has limited leave to enter or remain in the United Kingdom applies to the Secretary of State for variation of the leave,

(b)  the application for variation is made before the leave expires, and

(c)  the leave expires without the application for variation having been decided.

(2)  The leave is extended by virtue of this section during any period when—
(a)  the application for variation is neither decided nor withdrawn,

(b)  an appeal under section 82(1) of the Nationality, Asylum and Immigration Act 2002 could be brought, while the appellant is in the United Kingdom against the decision on the application for variation (ignoring any possibility of an appeal out of time with permission), 

(c)   an appeal under that section against that decision, brought while the appellant is in the United Kingdom, is pending (within the meaning of section 104 of that Act) …

53. Mr Nuppey acknowledged that the calculation in the decision letter was wrong and that the appellant’s leave to remain did not expire on 27 April 2017 but was extended beyond that date as a result of the March 2017 application and the operation of section 3C(1) of the 1971 Act.

54. The First-tier Tribunal Judge concluded that the appellant’s leave to remain ended on 3 January 2019 which is the date he was served with the respondent’s stage 1 decision to deport. The Judge said he reached this conclusion because a deportation order invalidates leave to remain. This analysis erroneously confuses a stage 1 decision to deport with the making of a deportation order. As the Upper Tribunal explained in headnote 5 to Vargova (EU national: post 31 December 2020 offending: deportation) [2024] UKUT 00336 (IAC), a stage 1 decision to deport does not restrict the subjects right of residence. This is because it is the making of a deportation order that invalidates leave to remain (see s5(1) of the 1971 Act) and the stage 1 decision is not a decision to make such an order but a decision that the person is liable to deportation and an invitation to that person to make representations as to why an order should not be made. This is evident from the content of the stage 1 decision letter that was sent to the appellant and which said:

What this means for you
If a deportation order is made against you then you will be required to leave the United Kingdom and prohibited from returning while the order remains in force. The deportation order will also invalidate any leave to enter or remain in the United Kingdom. (my emphasis)

55. The respondent’s policy in cases such as this one, where deportation is being pursued under the 1971 Act and not by reference to the automatic deportation provisions of the United Kingdom Borders Act 2007 (because those automatic provisions do not apply), is not to obtain a deportation order until the person has exhausted their in-country appeal rights2. In her written submissions on this subject the respondent has confirmed that, consistent with that policy, no deportation order has to date been made. The respondent therefore concedes that the appellant’s leave to remain, extended by his March 2017 application, has not been invalidated by the making of a deportation order and the First-tier Judge erred when concluding that the appellant’s lawful residence ended in January 2019.

56. The argument advanced by the respondent in her written submissions and in Mr Nuppey’s oral submissions, is that the appellant’s lawful residence ceased on 17 April 2023, when a decision was made in respect of the March 2017 application. This is predicated on the assertion in the 17 April 2023 decision letter that:

“There is no right of appeal against this decision to refuse your outstanding application because it is not one to which section 82 of the Nationality Immigration and Asylum Act 2002 applies, however you are assured that all material evidence within that application has been taken into account in relation to the decisions above”

57. The respondent’s written submissions argue that the decision maker had no discretion but to refuse the March 2017 application and that it was made clear that there is no right of appeal against the decision to refuse the application. She argues therefore that the appellant’s lawful residence, which had until that time been extended by s.3C of the 1971 Act, ceased when the application was refused without a right of appeal.

58. As the Court of Appeal made clear in MY (Pakistan) v Secretary of State for the Home Department [2021] EWCA Civ 1500 however, whether a decision of the respondent to refuse an application gives rise to a right of appeal under s.82 of the 2002 Act depends on the basis on which the application is made and does not depend on what is said in a decision letter or whether or not the respondent claims to have engaged with a human rights claim when deciding the application. At [42] and [43] of his judgment in MY (Pakistan) Underhill LJ set out the position, stating that where an application necessarily involves a human rights claim, the refusal of the one must necessarily entail the refusal of the other. The dispositive question therefore when deciding whether a decision in respect of an application gives rise to a right of appeal under s.82 of the 2002 Act is whether the application made involved a human rights claim?

59. The covering letter to the appellant’s 2017 application included in the appellant’s original bundle of evidence makes it abundantly clear that that application did involve a human rights claim. The application was made on form SET (O) which is the form the respondent directs to be used for “other purposes not covered by other application forms”. The covering letter to the application explicitly states the purpose for which it was being used in the appellant’s case stating in the title “Application for leave to remain in the United Kingdom on the grounds of family / private life.” The content of the letter makes clear that the application was pursued on the basis that removal from the United Kingdom would be incompatible with the appellant’s article 8 Convention rights. The application was therefore pursued on the sole basis of a human rights claim.

60. The respondent’s assertion that the refusal of the 2017 application did not involve the refusal of a human rights claim is further undermined by the respondent’s correspondence with the appellant. In the stage 1 decision to deport the respondent confirmed that the appellant’s application for leave to remain had not at that time been determined and informed him that: “This decision gives you an opportunity to provide any further information or evidence which you would like the Home Office to consider as part of your application” The appellant was also informed that the respondent would be making a decision about whether the appellant should be deported “on the basis of all available information, including that submitted with your outstanding application.” It is clear from this that the 2017 application was treated as part of the appellant’s human rights claim. This point was reinforced in the April 2023 decision which stated that “material evidence within [the 2017 application] has been taken into account in relation to the [human rights] decisions above”.

61. Contrary to what was stated in the respondent’s April 2023 decision letter about the absence of a right of appeal, it is clear that the respondent’s refusal in that decision of the appellant’s March 2017 application involved the refusal of a human rights claim. The decision to refuse the application therefore gave rise to an appeal under s.82 of the 2002 Act.

62. The significance of that finding is that this appeal, brought in time and in response to the April 2023 decision, has the effect of further extending the appellant’s lawful residence in the United Kingdom by virtue of s.3C(2)(b) and (c) of the 1971 Act for as long as the appeal is pending. A pending appeal is defined in s.104 of the 2002 Act as follows:

Pending appeal
(1) An appeal under section 82(1) is pending during the period—
(a) beginning when it is instituted, and
(b) ending when it is finally determined, withdrawn or abandoned (or when it lapses under section 99).
(2) An appeal under section 82(1) is not finally determined for the purpose of subsection (1)(b) while—

(a) an application for permission to appeal under section 11 or 13 of the Tribunals, Courts and Enforcement Act 2007 could be made or is awaiting determination,

(b) permission to appeal under either of those sections has been granted and the appeal is awaiting determination, or

(c) an appeal has been remitted under section 12 or 14 of that Act and is awaiting determination.

63. As section 104(1) of the 2002 Act makes clear, an appeal remains pending during the period beginning when it is instituted and ending when it is finally determined and as s.104(2) makes clear an appeal is not finally determined while an appeal to the Upper Tribunal is awaiting determination.

64. Bringing this all together, this means that the appellant’s second period of lawful residence in the United Kingdom which began in January 2011, was extended as a result of a decision by the respondent until 28 April 2017, was then further extended by operation of section 3C(2)(a) of the 1971 Act first during the six years it took the respondent to determine the application, and was then further extended by operation of s.3C(2)(c) during the two and a half years while his appeal against the refusal of that application has been considered by the First-tier Tribunal and then the Upper Tribunal. As at the date of this hearing therefore the appellant’s second period of lawful residence in the United Kingdom had lasted 14 years and 10 months.

65. The appellant has therefore had two periods of lawful residence in the United Kingdom. The first was a period of 2 years and 6 months between June 2003 and January 2006. The second is a period of 14 years and 10 months between January 2011 and the hearing date in November 2025. As of the date of hearing therefore the appellant was 32 years and 7 months old and had been lawfully resident in the United Kingdom for 17 years and 2 months of that time. He has therefore been lawfully resident in the United Kingdom for most of his life and meets the requirements of the first limb to Exception 1 to the public interest in his deportation.

Exception 1 – socially and culturally integrated

66. In CI (Nigeria) Lord Justice Leggatt stated at [57] that when considering this limb of Exception 1, it is important to keep the rationale for this requirement in mind. The purpose of the limb is to determine whether the appellant has established a private life with a substantial claim to protection under article 8. At [58] of his judgment Leggatt LJ identified that “a person’s social identity is “constituted at a deep level by familiarity with am participation in the shared customs, traditions, practises, beliefs, values, language idioms and other local knowledge which situate a person in a society or social group and generate a sense of belonging.” Quoting from the ECtHR decision in Maslov he notes at [59] that it makes a difference whether a person came to the country during his childhood or whether he only came as an adult. At [62] he notes that “It is hard to see how Criminal offending and imprisonment could ordinarily, by themselves and unless associated with the breakdown of relationships, destroy the social and cultural integration of someone whose entire social identity has been formed in the UK." At [77] of his judgment Leggatt LJ gives the following guidance (which was subsequently endorsed by the Supreme Court in SC (Jamaica) v SSHD [2022] UKSC 15) for determining the question of whether an appellant who is a foreign criminal is socially and culturally integrated in the United Kingdom:

“The judge should simply have asked whether-having regard to his upbringing, education, employment history, history of criminal offending and imprisonment, relationships with family and friends, lifestyle and other relevant factors- [the appellant] was at the time of the hearing socially and culturally integrated in the United Kingdom ”

67. I have already set out my findings of fact about these factors. Applying those findings to this question, I conclude that the appellant is socially and culturally integrated in the United Kingdom. Having arrived as a child the appellant’s formative years were spent in the United Kingdom. His education in the country included lessons about citizenship and he passed the life in the United Kingdom test. He is unquestionably deeply familiar with and participates in shared customs, language idioms, and practices of society in London and has an acute sense of belonging in the city. He has maintained relationships with his extended family who live in London and has begun his own family life with his British citizen partner and children.

68. The appellant was candid in recognising his mistrust of authority figures and that was apparent in some of his more obscure submissions about the existence of the law (though it seemed likely that those submissions were the result of unhelpful internet research). As the respondent points out this, plus his criminal offending are factors which militate against social and cultural integration. I do note however that the appellant appears to have completed the licence period of his custodial sentence without any issues and significantly, he has not been convicted of any further offences in the seven years since the incident in 2018 which led to his imprisonment. The indications are that he has matured and settled down with the start of his family. These factors are demonstrative of his integration notwithstanding his historic mistrust and previous criminal offending. I am satisfied that on a holistic assessment of all the evidence the appellant is socially and culturally integrated in the United Kingdom, the country where he grew up, was educated and in which he has spent his entire adult life

69. I conclude therefore the appellant meets the requirements of the second limb to Exception 1 to the public interest in his deportation.

Exception 1 - very significant obstacles to integration in Nigeria

70. At [52] of the judgment in SC (Jamaica) the Supreme Court endorsed a similar approach to the question of whether an appellant would face very significant obstacles to integration in the country to which he is proposed to be deported, to that identified by Leggatt LJ at [66] above in relation to a person’s social and cultural integration in the United Kingdom. The question is whether, having regard to the appellant’s upbringing, education, etc he would face very significant obstacles to integration in Nigeria? When answering that question I remind myself that the phrase “very significant obstacles” connotes an elevated threshold that is not met by mere inconvenience or upheaval – see Parveen v SSHD [2018] EWCA Civ 932. I also remind myself that the idea of ‘integration’ calls for a broad evaluative judgment to be made as to whether the individual will be enough of an insider in terms of understanding how life in the society in that other country is carried on and a capacity to participate in it, so as to have a reasonable opportunity to be accepted there, to be able to operate on a day-to-day basis in that society and to build up within a reasonable time a variety of human relationships to give substance to the individual's private or family life – see Kamara v SSHD [2016] EWCA Civ 813 quoted with approval in SC (Jamaica).

71. The appellant left Nigeria when he was ten years old and only returned once the following year, aged eleven. He has no adult understanding of how life in that country is carried on, no experience of work in the country and no experience of obtaining accommodation or state support. On the face of it, as a returnee who left Nigeria as a child and who has not returned since the age of eleven the appellant cannot reasonably be regarded as an insider in Nigeria. In her decision letter the respondent says that the appellant grew up in a “Nigerian household” and will have acquired some knowledge of the customs and culture in Nigeria through that upbringing. I have found the appellant will have retained some connection to Nigerian culture through his parents. That is however very different to him having the knowledge and experience to be able to operate on a day-to-day basis in that society. Likewise, whilst the fact that English is an official language in Nigeria will assist the appellant, that is not the same as him having an awareness of the language idioms that apply in that country having left there as a child. In my judgment, the appellant’s lengthy absence from Nigeria, the fact he has no adult experience of the country and the scale of the difference between life in London and in Nigeria mean that deportation to Nigeria would pose a very significant challenge to the appellant and his ability to integrate there.

72. I further find that the appellant would be ill-equipped to meet that challenge and build-up the variety of human relationships to give substance to his private and family life within a reasonable time. Mr Nuppey was correct to state that there is no up to date evidence to show the effect the fracture to his skull has on the appellant now. It is abundantly clear to me however, when the evidence is viewed holistically, that the incident has had a profound effect on the appellant and would significantly inhibit his ability to engage with authorities and be accepted in society if deported to Nigeria. The appellant said that following the fracture he continues to be slow processing information, which was one of consequences of the injury to be recognised shortly after the fracture. He says this causes him difficulty in his day to day life and his decision making. I give some weight to this evidence which I accept is likely to be true. I find that the appellant’s capacity to participate in the unfamiliar surroundings he would face in Nigeria will be restricted as a result of the brain injury he suffered.

73. Whilst the appellant is still young, physically fit and has retained some connection to Nigerian culture, I conclude that he would face very significant obstacles to integration there as a result of his lack of any adult experience of the country, his lack of awareness of the day to day life there and the limitations on his capacity to adapt and establish himself as a result of the traumatic injury he suffered at the age of 15.

74. I find therefore that the appellant meets the requirements of the third limb to Exception 1 to deportation.

75. All three limbs having been fulfilled I further find that the appellant benefits from Exception 1 to the public interest and therefore that there is no public interest in his deportation as a foreign criminal. The appellant therefore benefits from a shortcut to the answer to the public interest question. As he meets the requirements of Exception 1 his private life in the United Kingdom outweighs the public interest in his deportation.

76. This finding is dispositive of the appeal. For completeness however I go on to consider Exception 2 which was the basis on which the First-tier Tribunal allowed the appellant’s appeal, and the question of whether the appellant’s family life with Z, B, C and D outweighs the public interest in his deportation.

Exception 2 – Would the effect of the appellant’s deportation be unduly harsh on Z, B or C

77. I have preserved the findings of the First-tier Tribunal Judge that the appellant has a genuine and subsisting relationship with Z and a genuine and subsisting parental relationship with B and C, being heavily involved in their care. I found that the appellant lives with Z, B, C and D and that Z is pregnant with their child, having suffered a pregnancy loss earlier in the year. I found that the First-tier Tribunal Judge’s analysis of whether the effect of the appellant’s deportation would be unduly harsh on Z, B or C was flawed and it is this evaluation which remains outstanding. That evaluation must take place in the context of the guidance provided by the Supreme Court on how to apply the unduly harsh test in HA (Iraq) v SSHD [2022] UKSC 22 including the self-direction that: “unduly harsh does not equate with uncomfortable, inconvenient, undesirable or merely difficult. Rather it poses a considerably more elevated threshold. Harsh in this context denotes something severe or bleak. It is the antithesis of pleasant or uncomfortable. Furthermore the addition of the adverb ‘unduly’ raises an already elevated standard still higher”

78. In light of my findings about the very significant obstacles the appellant would face if deported to Nigeria, I further find that it would be unduly harsh on Z, B and C to go to Nigeria with him. As British citizens doing so would involve them losing rights and privileges to which they are entitled. It would also involve them moving away from their wider family in the United Kingdom and the support they receive from that family. It would involve them leaving the only country with which they are familiar. Z, B and C moving to Nigeria would also have the consequence of separating D either from his father’s if he went with them to Nigeria or from his mother if he remained in the United Kingdom.

79. With regards the stay scenario by which Z, B and C stay in the United Kingdom without the appellant, although I have no doubt that the appellant’s commitment to his partner and his children is genuine and although it is clearly the appellant’s keen desire to remain heavily involved in the care and upbringing of his children, I can find no basis in the evidence for concluding that the effect of the appellant’s deportation on Z, B or C would reach the elevated threshold of being unduly harsh if they were to remain without him. Despite having the opportunity to do so, the appellant has provided no evidence of how his deportation would affect his children or his partner. Given his presence throughout the first few years of B and C’s lives and his apparent commitment to them, the separation of the appellant from B and C that would result from his deportation is clearly undesirable for them and for the appellant. There is however nothing in the evidence to establish that the effect would be unduly harsh on them, given the public interest in the deportation of foreign criminals that exists.

80. I find therefore that while the effect of the appellant’s deportation on Z B and C would be undesirable and contrary to their best interests it would not reach the elevated threshold of being unduly harsh so that Exception 2 is met and the appellant’s family life outweighs the public interest in deportation.

Conclusion

81. It follows from my analysis that I have reached the same conclusion as the First-tier Tribunal Judge albeit for different reasons. I find that the public interest does not require the appellant’s deportation because he meets the private life requirements of Exception 1.

82. That leaves only the public interest in maintaining effective immigration control as the only possible justification for interfering with the appellant’s article 8 Convention rights. I have considered the factors identified in s.117B of the 2002 Act as relevant to this aspect of the public interest. It is relevant that the appellant established his private and family life in the United Kingdom while residing in the country lawfully. It is also relevant that he had no involvement in the decision to come to the United Kingdom and having lived in the country since the age of 10 he clearly had the expectation of settling in the country.

83. The inordinate and unexplained delay in resolving the appellant’s immigration status is also relevant. No explanation has been provided for why it took the respondent six years to make a decision in respect of the appellant’s 2017 application or why a decision on deportation was not made until more than four year after he was served with the stage 1 notice of his liability to deportation. As was observed at [52] of Lord Reed’s judgment in the Supreme Court decision in R (oao Agyarko) v SSHD [2017] UKSC 11:

“It is also necessary to bear in mind that the cogency of the public interest in the removal of a person living in the UK unlawfully is liable to diminish - or, looking at the matter from the opposite perspective, the weight to be given to precarious family life is liable to increase - if there is a protracted delay in the enforcement of immigration control.”

84. In the circumstances where I have found that the appellant benefits from an Exception to the public interest in deportation, where he arrived in the country as a child and where he has been lawfully resident in the United Kingdom for more than seventeen years, I conclude that any public interest in maintaining effective immigration control through the appellant’s removal, is outweighed by the strength of the appellant’s private and family life in the United Kingdom.

85. In those circumstances the removal of the appellant would be incompatible with his article 8 Convention rights and would therefore be unlawful. On that basis the appellant’s appeal succeeds.

Notice of Decision

The appellant’s human rights appeal is ALLOWED


Luke Bulpitt

Judge of the Upper Tribunal
Immigration and Asylum Chamber

16 December 2025




IN THE UPPER TRIBUNAL
IMMIGRATION AND ASYLUM CHAMBER
Case No: UI-2024-002718

First-tier Tribunal No: HU/55686/2023

THE IMMIGRATION ACTS

Decision & Reasons Issued:

…………………………………

Before

UPPER TRIBUNAL JUDGE BULPITT
AND
DEPUTY UPPER TRIBUNAL JUDGE KUDHAIL

Between

SECRETARY OF STATE FOR THE HOME DEPARTMENT
Appellant
and

OLAJIDE OLAYEMI SHINABA
(NO ANONYMITY ORDER MADE)
Respondent

Representation:
For the Appellant: Mr K Ojo, Senior Home Office Presenting Officer
For the Respondent: Mr A Aminu, Aminu Aminu Solicitors

Heard at Field House on 4 June 2025

DECISION AND REASONS
1. This is the Secretary of State for the Home Department’s appeal against the decision of First-tier Tribunal Judge Blackman (the Judge) to allow Mr Shinaba’s appeal against the refusal of his human rights claim. Although the Secretary of State for the Home Department brings this appeal, for clarity we will refer to the parties as they were in the First-tier Tribunal where the Secretary of State for the Home Department was the respondent and Mr Shinaba the appellant.
Background
2. The appellant is 31 years old and a citizen of Nigeria. He has been living in the United Kingdom since June 2003 when he was issued with a residence card recognising his right to reside in the United Kingdom as the dependent child of an EEA national (his stepfather). That residence card was revoked in 2006 because it was determined that the appellant’s stepfather was not a “Qualified Person”. A later application for a permanent residence card on the basis of the appellant’s relationship with his stepfather was refused in 2010. The appellant then made an unsuccessful application for leave to remain in the United Kingdom under the Immigration Rules, before on 27 January 2011 he was granted discretionary leave to remain in the United Kingdom. That leave was subsequently extended so that it was due to expire on 27 April 2017. Before it expired the appellant made an application to further extend his leave to remain on 20 March 2017, though there is no evidence of the outcome of that application.
3. On 27 July 2018 the appellant attended the house of a female friend with whom he had been living. Angry that his items were not ready for him to take away, the appellant barged into the house and argued with his female friend, during which he pulled a knife from his waistband and lunged toward the female’s stomach area. He then stopped and left, saying to the female that if she were a man he would have stabbed her. On 18 December 2018 the appellant pleaded guilty to the offence of affray in connection with that incident. It was accepted that he did not bring the knife to the address and he did not intend to stab the victim but only intended to scare her. Noting the appellant had previous criminal convictions in 2011, 2013, 2015 and 2016 and the fact it was a short-lived incident which involved a moment of madness, HHJ Evans QC sentenced the appellant to serve 11 months imprisonment for the offence of affray.
4. In the light of that offence and sentence the respondent informed the appellant on 28 December 2018 that she intended to deport him to Nigeria and invited the appellant to identify reasons why she should not do so. The appellant raised a human rights claim in response, arguing that he was settled in the United Kingdom with an established private life, that he had a British child “A” born on 17/02/2018 and that his deportation would be incompatible with his right to respect for his private and family life under Article 8 of the Convention on Human Rights.
5. The respondent refused the appellant’s human rights claim in a decision dated 17 April 2023. In that decision the respondent concluded that the appellant was a “foreign criminal” and that his deportation was therefore in the public interest. The respondent did not accept that the appellant had a genuine and subsisting parental relationship with A and did not accept that the appellant’s deportation would be unduly harsh on A. The respondent did not accept that the appellant had been lawfully resident in the United Kingdom for more than half his life. The respondent accepted that the appellant was socially and culturally integrated in the United Kingdom “to an extent” but did not accept that he would face very significant obstacles to integration in Nigeria. In these circumstances the respondent concluded that interference with the appellant’s private and family life was proportionate.
6. The appellant appealed against the respondent’s decision. As part of his appeal, the appellant asserted that he now had a British partner “Z” with whom he had two British children “B” born on 14/06/2022 and “C” born on 15/11/2023. The respondent reviewed the appeal in the light of this new assertion but maintained the decision that deportation was a proportionate interference with the appellant’s private and family life.
The Judge’s Decision and the appeal to the Upper Tribunal
7. The Judge heard the appellant’s appeal on 19 April 2024. He heard oral evidence from the appellant and Z and considered documentary evidence submitted by the appellant and the respondent. He promulgated his decision on 2 May 2024.
8. To determine the question of whether the appellant’s deportation would be incompatible with the appellant’s private and family life, the Judge applied Part 5A of the Nationality Immigration and Asylum Act 2002 which we set out as an Annex to this decision.
9. The judge found (at [20]) that the appellant’s offence of affray had caused serious harm. The Judge also found (at [21]) that the appellant is a persistent offender. On this basis the Judge concluded that the appellant is a “foreign criminal” as defined in section 117D of the 2002 Act. Those findings have not been challenged in this appeal.
10. The Judge therefore noted, applying section 117C(1) of the 2002 Act that the appellant’s deportation was in the public interest. The Judge then turned to consider whether either of the two exceptions to the public interest in deportation that are identified in section 117C(4) and (5) of the 2002 applied to the appellant.
11. Between [27] – [34] the Judge considered Exception 1 to the public interest in deportation. The Judge assessed the first of the three limbs to Exception 1 and determined at [33] that the appellant has been lawfully resident in the United Kingdom for 8 years and five months, so less than half of his life. On this basis the Judge found that the appellant could not meet the requirements of Exception 1 and so did not go on to consider the second and third limbs to the Exception (see [34] of the decision).
12. Between [35] – [73] the Judge considered Exception 2 to the public interest in deportation. The Judge found that Z was the partner of the appellant, that the couple were in a genuine and subsisting relationship (through they did not live together) and that Z is a “Qualifying partner” as defined in section 117D of the 2002 Act - see [49] and at [50] of the decision The Judge further found that the appellant is the father of B and C who live with Z, that he has a genuine and subsisting parental relationship with them and that B and C are “Qualifying children” as defined in section 117D of the 2002 Act – see [58].
13. The Judge then turned to consider whether the effect of the appellant’s deportation would be unduly harsh on Z, B or C. At [62] the Judge gave himself the following self-direction about the meaning of the phrase “unduly harsh”:
“the test of ‘unduly harsh’ does not equate with uncomfortable, inconvenient, undesirable or merely difficult. Rather, it poses a considerably more elevated threshold. 'Harsh' in this context, denotes something severe, or bleak. It is the antithesis of pleasant or comfortable. Furthermore, the addition of the adverb 'unduly' raises an already elevated standard still higher.”
14. The Judge then considered the “go scenario” of Z, B and C going to Nigeria with the appellant in the event of his deportation. The Judge said that it was not clear what status Z B and C would have in Nigeria. He recorded that moving to Nigeria would deny the children all the benefits of life in the United Kingdom “during their childhood and throughout the rest of their life”. The Judge also noted that leaving the United Kingdom would involve Z leaving her employment, accommodation and family in the United Kingdom. The Judge then records his conclusion at [65] that the effect of going to Nigeria with the appellant would be unduly harsh on each of Z B and C.
15. The Judge moved on to consider the “stay scenario” of Z, B and C remaining in the United Kingdom while the appellant is deported to Nigeria, and found at [66] that this too would be unduly harsh on each of them. The Judge explains this conclusion in the following paragraphs which we repeat here because they form the basis of the respondent’s challenge in this appeal:
67. In looking at the children’s circumstances in particular, I am satisfied that they have an ongoing genuine and subsisting relationship with their father. This relationship is strengthened day-by-day via the appellant’s daily contact and involvement with his children. He is a part of their upbringing. I have little doubt that it is of benefit to both children to have involvement of both parents in their lives and provides an ongoing relationship and link to their half-sibling. There is no suggestion that the appellant’s involvement in the lives of the children is detrimental to the children’s welfare and well-being. There is no evidence of any involvement from children’s social services and [Z] continues to support the appellant’s full-involvement in the children’s lives.
68. Were the appellant deported, the children would go from having daily contact with their father to very little if any contact with him. The children would go from having the benefit of involvement of both parents in their lives to the involvement of their mother only. In my judgment, this would be distressing, confusing and destabilising for the children.
69. [C] is coming up to six months old. [B] will be two years old in June. Neither child can benefit in any meaningful way from remote contact with their father (were the appellant deported) via cards or video contact. The impact on [C] and [B] from their father’s deportation will be the termination of any meaningful parental relationship. This is likely, in my judgment, to impact the children negatively in terms of their identity, stability, emotional functioning and general well-being. In my judgment, it is more likely than not to impact the children negatively both now and throughout their childhood. To my mind that would be unduly harsh on [C] and [B].
70. I am persuaded also, on the balance of probabilities, that it would be unduly harsh on [Z] for her to remain in the United Kingdom were the appellant deported. They are in a committed relationship and have evidenced their commitment by deciding to raise two children together. [Z] relies on the appellant for practical support and, in my judgment, it is more likely than not that she relies on him for emotional support as a parenting couple.
71. [Z] can travel to visit the appellant in Nigeria were he deported there. However, that is a significantly different arrangement to the one that currently exists where they co-parent and where they maintain a relationship together.
72. I found the appellant and [Z] to be impressive and persuasive witnesses. Their evidence suggests to me that they have been supportive of one another over a number of years (for example when they first met and when [Z] was separating from a former partner) and are open with each other about their difficulties and challenges. They have committed to each other, and they share two children together, in whose lives they are both involved. She relies on the appellant for emotional and practical support and, in my judgment, it would be unduly harsh on her were that to be removed permanently by the appellant’s deportation.
16. The Judge therefore allowed the appellant’s appeal on the basis that Exception 2 applied and therefore there was no public interest in his deportation.
The respondent’s appeal to the Upper Tribunal
17. The respondent appealed against the Judge’s decision on the basis that the Judge failed to consider Exception 2 in accordance with the relevant case law and failed to give adequate reasons for his conclusion that the effect of the appellant’s deportation would be unduly harsh on Z, B and C. When granting the respondent permission to appeal Upper Tribunal Judge MacWilliam commented that “While the judge’s self-direction at [62] cannot be faulted, it is arguable that the judge did not apply it. It is arguable that the judge did not explain why the elevated test was met”.
18. At the commencement of the hearing in the Upper Tribunal Mr Ojo sought permission to adduce the Presenting Officer’s note of the oral evidence that was given in the First-tier Tribunal. After we allowed him time to consider the note, Mr Aminu confirmed that the Presenting Officer’s note was an accurate record of the oral evidence that was given in the hearing. In those circumstances we permitted Mr Ojo to rely on the note in this appeal as it was clearly consistent with the Tribunal’s overriding objective of dealing with appeals fairly and justly for us to have an accurate record of the oral evidence that was given.
The parties submissions
19. Mr Ojo argued that the Judge erred when considering Exception 2 to deportation by failing to apply the “unduly harsh test” in the way identified by the Supreme Court in HA (Iraq) RA (Iraq) and AA (Nigeria) v Secretary of State for the Home Department [2022] UKSC 22 (HA(Iraq)). He submitted that the Judge was required to undertake a careful assessment of all the factors to determine whether the high threshold of “unduly harsh” was met and that he failed to do that. Mr Ojo argued that the Judge’s reasons for his conclusion that the effect of the appellant’s deportation would be unduly harsh on Z, B and C were inadequate as they provided no evidential basis for the conclusions reached by the Judge at [68], [69] and [70] of his decision. Mr Ojo submitted that the Judge’s reasoning provided no indication that the self-direction about the meaning of “unduly harsh” that the Judge gave himself had in fact been applied.
20. Mr Ojo also submitted that the Judge’s failure to consider the second and third limbs of Exception 1 meant that his consideration of Exception 2 was necessarily inadequate, suggesting that the Judge needed to determine what support the appellant would have in Nigeria and whether he would face significant obstacles on his return to that country, in order to evaluate whether it would be unduly harsh for Z, B and C to accompany him there.
21. Mr Ojo argued that there was no evidence at all to substantiate the Judge’s findings on the unduly harsh test and that in those circumstances the Judge committed the error described by the Supreme Court at [98] of HA (Iraq) by embarking on a consideration of impact which was based on speculation and conjecture rather than evidence..
22. Mr Aminu argued that the respondent’s criticisms of the Judge’s decision amount to no more than a disagreement with the conclusions the Judge reached. Mr Aminu pointed out that the Judge had the benefit of seeing and hearing from the appellant and Z directly and submitted that the Judge had made it clear in his decision that he was convinced by the evidence they gave. Mr Aminu argued that it is apparent that the Judge was building up to his conclusion that the effect of the appellant’s deportation would be unduly harsh on Z, B and C and that when the decision is read as a whole there are adequate reasons to explain that conclusion.
Analysis of Error of Law
23. The Supreme Court gave its guidance on the appropriate way to interpret and apply the “unduly harsh test” in order to decide whether Exception 2 applies to an appellant at [41] – [45] of the decision in HA (Iraq). At [41] the court approved the self-direction about the meaning of the term “unduly harsh” that the Judge recorded at [62] of his decision and which we have repeated at [13] above. The Court noted at that this direction recognises that the level of harshness which is ‘acceptable’ or ‘justifiable’ in the context of the public interest in the deportation of foreign criminals involves an ‘elevated’ threshold or standard, and that ‘unduly’ raises that elevated standard still higher. At [44] the Court said the following:
“Having given that self-direction, and recognised that it involved an appropriately elevated standard, it is for the tribunal to make an informed assessment of the effects of deportation on the qualifying child or partner and to make an evaluative judgment as to whether that elevated standard has been met on the facts and circumstances of the case before it.”
24. We are satisfied that although the Judge was clearly aware of the elevated standard that applied to his consideration of the unduly harsh test having given himself the appropriate self direction, he failed to then go on to conduct the informed assessment of the effects of deportation on Z B and C and failed to go on to undertake the evaluative assessment as to whether the elevated standard has been met on the facts which, as the passage from HA (Iraq) quoted above makes clear, he was required to do.
25. Specifically, when considering the “go scenario” the Judge made findings of fact about Z leaving her employment and losing her maternity leave, giving up her accommodation, and leaving her family in the event of her moving to Nigeria with the appellant. He failed however to go on to make an informed assessment of what effect those events would have on Z, B or C and an evaluative judgment as to whether the elevated standard was met. Such an assessment would involve for example consideration of the likelihood of Z finding alternative employment in Nigeria, consideration of the family’s financial circumstances and consideration of the level of support that Z would get from her family if she moved to Nigeria.
26. Likewise, while the Judge made the finding of fact that relocating to Nigeria would deny the children of the benefits they enjoy as British citizens stating that would be the case both now and throughout their lives,3 he did not go on to make an informed assessment of what effect that would have on them and an evaluative judgment about whether the elevated standard was met in respect of them. That informed assessment and evaluative judgment needed to include consideration of the ages of the children who were only two years old and six months old at the time of the hearing. It needed to include an assessment about the depth of their relationships with their parents and other family members and the opportunities and prospects available to the family in Nigeria. The evaluative judgment needed to consider whether the effects of going to Nigeria with the appellant would in all the circumstances reach the elevated standard of being unduly harsh on Z, B and C, as opposed to being uncomfortable, inconvenient or undesirable. Instead at [65] the Judge simply states the conclusion that it would be unduly harsh on the three of them to go with the appellant to Nigeria without there being any apparent evaluative judgement or explanation for why the effect would reach the elevated standard.
27. We agree with Mr Ojo’s observation that the Judge’s failure to resolve the question of what obstacles the appellant would face to integration on return to Nigeria is relevant to this issue. It is hard to see how a Judge could undertake the necessary assessment of the effect of deportation on a qualifying child or partner who would be going with the appellant to his home country without determining whether the appellant would face very significant obstacles to integration in that country. Here, having decided it was not necessary to consider the second and third limbs to Exception 1, the Judge has failed to resolve the disputed issue of whether the appellant would have support or connections in Nigeria who would help him to integrate. Neither did the Judge include any analysis of the appellant’s ability to find work and support his family on return. It is apparent from the Presenting Officer’s note of the hearing that the appellant was questioned about his qualifications and skills and as the decision letter made clear, the respondent’s case was that the appellant would be able to use those skills and qualifications to find employment and support his family in Nigeria. This issue was not resolved by the Judge.
28. In relation to his consideration of the “stay scenario”, it is apparent from [67] – [69] that the Judge tried to undertake an assessment of the effect on B and C of staying in the United Kingdom if the appellant were deported. We are not however satisfied that this was an informed assessment as required. There was a distinct lack of evidence about the children adduced before the Judge. The appellant’s witness statement states only that he has “children who are British citizens living in the UK and they are being care for by partner” (sic), while Z’s witness statement was in identical terms. We agree with Mr Ojo’s submission that the Judge’s assessment at [69] that the effect on B and C of separation from the appellant as a result of his deportation would be negative “in terms of their identity, stability emotional functioning and general well-being” was speculative and not evidence based.
29. Most importantly the judge’s assessment of the effect of the appellant’s deportation on B and C in the “stay scenario” does not suggest that an evaluative judgement has been made about whether the elevated standard required by the term “unduly harsh” has been reached. The failure to evaluatively assess the degree of harshness that separation would involve is perhaps best indicated by the Judge’s comment at [67] that there is no suggestion that the appellant’s involvement in the children’s lives is detrimental to them and no evidence of social services involvement. Whilst these observations would go some way to explaining a conclusion that the appellant is not a negative influence on the children, it does nothing to explain why the effect of separation from their father would not just be harsh on B and C but unduly harsh.
30. Overall, we are satisfied that when his decision is read as a whole, it is clear that the Judge has failed to undertake the informed assessment and conduct the evaluative judgment that are required in order to determine whether the effect of the appellant’s deportation on Z, B and C would reach the elevated standard of being unduly harsh. As this finding was the operative basis for the Judge’s decision, we are satisfied that this error means that his decision must be set aside.
Remaking the decision
31. Having decided that the Judge’s decision must be set aside and the decision remade we invited representations from the parties about the appropriate next steps. Both Mr Ojo and Mr Aminu agreed that in all the circumstances, including the long delay that has already occurred in this case, it would be appropriate for the decision to be remade in the Upper Tribunal. Both also agreed that the following unchallenged findings of the Judge should be preserved:

a) The appellant is a foreign criminal as defined in section 117D of the 2002 Act because the offence of affray caused serious harm and because he is a persistent offender.
b) The appellant is in a genuine and subsisting relationship with Z who is a qualified partner as defined in section 117D of the 2002 Act.
c) The appellant is in a genuine and subsisting parental relationship with B and C who are both qualified children as defined in section 117D of the 2002 Act.
32. We agree that the decision in this appeal should be re-made in the Upper Tribunal with the Judge’s findings above preserved. We also agree with the joint submissions that the remaking of the decision should take place on a date in the future to enable the appellant to provide updating evidence about events since the appeal was heard by the Judge more than a year ago. At that hearing it will be necessary to determine:

i. Whether Exception 1 to the public interest in deportation applies as the appellant fulfils all three limbs of section 117C(4) of the 2002 Act
ii. Whether Exception 2 to the public interest in deportation applies as the effect of the appellant’s deportation would be unduly harsh on one of Z, B or C;
If the answer to both questions is no then -
iii. Whether in all the circumstances the appellant has established very compelling circumstances over and above the two Exceptions that outweigh the public interest in his deportation.
Directions and Postscript
33. After we orally indicated to the parties our decision at the end of the hearing and before this written decision was promulgated the appellant wrote to the Tribunal asking for more time to obtain and serve updating evidence. In the light of that request we have varied the directions we made orally at the hearing and now make the following directions in anticipation of a future hearing to remake the decision in this appeal:
• By no later than 4pm on 25 July 2025 the appellant is to serve a bundle containing all the documentary evidence on which he wishes to rely at the resumed hearing.
• The resumed hearing will take place on the earliest available date after 8 August 2025
• No less than one week before the hearing the parties are to serve written arguments addressing the first limb of Exception 1 and the question of whether the appellant has been lawfully resident in the United Kingdom for more than half his life.
Notice of Decision
The decision of First-tier Tribunal contained an error of law such that it is set aside.
The findings of fact recorded at [31] above that were made by the Judge are preserved.
There will be a remaking hearing at the Upper Tribunal on the earliest available date after 11 July 2025.



Luke Bulpitt

Judge of the Upper Tribunal
Immigration and Asylum Chamber


25 June 2025