Tribunal decisions

The decision

IN THE UPPER TRIBUNAL
IMMIGRATION AND ASYLUM CHAMBER
Case No: UI-2024-002759
First-tier Tribunal No: HU/59497/2023
LH/02313/2024

THE IMMIGRATION ACTS

Decision & Reasons Issued:
On 3 March 2025

Before

UPPER TRIBUNAL JUDGE LANE

Between

Secretary of State for the Home Department
Appellant
and

TONY ADAMS
(NO ANONYMITY ORDER MADE)
Respondent

Representation:

For the Appellant: Ms Gilmour, Senior Presenting Officer
For the Respondent: Mr Pipe

Heard at Field House on 16 October 2024

DECISION AND REASONS
1. I shall refer to the appellant as ‘the respondent’ and to the respondent as ‘the appellant’ as they respectively appeared before the First-tier Tribunal. The appellant is a male citizen of Sierra Leone born on 11 September 1980. The appellant appealed to the First-tier Tribunal against a decision of the Secretary of State dated 18 July 2023 to refuse his human rights claim following the making of a deportation order. The First-tier Tribunal allowed the appeal. The Secretary of State now appeals to the Upper Tribunal.
2. The appellant has a lengthy criminal offending history which is summarised in the First-tier Tribunal’s decision and the Secretary of State’s grounds of appeal [4-7]. The appellant is in a genuine and subsisting relationship with his partner, Precious Egbe Akenzua, a Nigerian citizen. The couple have five children under 18 years of age. Four of the children are British citizens.
3. The grounds are unhelpfully drafted, the author adopting what Mr Pipe in his Rule 24 reply describes as a ‘scattergun’ approach. I shall address the grounds as follows.
The appellant’s partner: settlement in the United Kingdom
4. The judge writes at [3]:
The Appellant’s case against deportation rests on his relationship with his partner Precious Egbe Akenzua, a Nigerian citizen with leave to remain in the UK, and their five children: Christabelle (born 9 July 2008), Jason (born 29 July 2009), Isabelle (born 2 January 2011), Mason (born 11 May 2012), and Mirabelle (born 7 October 2021). The first four are British citizens; Mirabelle has limited leave to remain until 21 May 2024.
At [29], the judge explained why he did not consider himself bound by findings of fact made by a previous Tribunal under the principle in Devaseelan (Second Appeal, ECHR, Extra-Territorial Effect) [2002] UKIAT 702. First, he observes that the appellant now has more diligent solicitors which, with respect, is irrelevant. He then writes that: ‘The family’s situation has changed, Precious and the children now being settled in the UK, and most of the children having rights as British citizens.’ [my emphasis]. The judge has misstated the facts of the appellant’s partner, Precious. She is not settled in the United Kingdom had limited leave to remain which expired on 21 May 2024, a few weeks after the First-tier Tribunal hearing in April 2024. Ms Gilmour submitted that this misunderstanding of the evidence by the judge infected the whole decision. Mr Pipe relied on his Rule 24 reply which at [14] reads: ‘As to §§21-22 of the grounds, it is clear from §§3, 29 & 35 of the Judge’s decision that he is aware of the status of Precious and the youngest child. The Judge has not made a material mistake of fact.’
5. I have considered the submissions carefully. It is true that, notwithstanding that he may have believed incorrectly that Precious had indefinite leave to remain in the United Kingdom (i.e. that she was ‘settled’), the judge still found that it would not be unduly harsh to expect her to relocate with the appellant to Sierra Leone. However, I note that there are other examples in the decision of the judge appearing to misunderstand the case before him. Mr Pipe confirmed that, at the First-tier Tribunal hearing, he had not advanced any argument that the appellant should succeed under Exception 1 of section 117C of the 2002 Act (very significant obstacles to integration). The judge, however, has proceeded to allow the appeal under Exception 1 [see paragraph 33]. This error indicates a lack of car on the part of the judge which I acknowledge does not necessarily vitiate the decision. However, I disagree with Mr Pipe that the judge ‘is aware of the status of Precious and the youngest child’; he is not aware of their true immigration status as he appears to accept that they have indefinite leave to remain when they do not. That misunderstanding, read in the light of the judge’s unexplained decision to allow the appeal on a ground which the appellant had not advanced, casts significant doubt on the reliability of the decision.
The medical expert : Dr Dhumad
6. The judge notes at [28] that the appellant’s medical expert ‘appeared to have proceeded without sight of the Appellant’s GP records.’ He observes (correctly) that ‘often that will be a significant factor when assessing such a report. However, his reason in the instant appeal for accepting the accuracy of the report is that ‘given the evidence from his partner, herself a mental health nurse, that he lacks insight into his mental health problems (which is consistent with his lack of accessing appropriate support), it is difficult to see what assistance any such records would provide.’ I agree with Ms Gilmour that it is extraordinary that the judge should discount the fact that the expert had not seen the GP notes on account of evidence given by the appellant’s partner given that (i) the previous Tribunal had not found her to be a credible witness and (ii) she has purported to add her own medical opinion as a mental health nurse in an appeal in which she has an obvious interest in the outcome. The partner was a witness of fact, not opinion, and I find that the judge has fallen into error in his treatment of her evidence.
7. Mr Pipe submitted that, notwithstanding the idiosyncrasies of parts of the decision, the judge’s central findings that it would be unduly harsh for the children to be separated from the appellant remain sound. I agree with Mr Pipe that the argument in the respondent’s grounds that the judge’s findings that Precious can return to Sierra Leone with the appellant whilst it would be unduly harsh for the children to be separated from the appellant is inconsistent is not tenable (the respondent no longer argues that the whole family could return with the appellant). However, I find that the two errors which I have identified above are, taken together, significant and I am not satisfied that the decision can stand.
8. I set aside the First-tier Tribunal’s decision. None of the findings of fact shall stand. There will need to be a fresh fact finding exercise which is better conducted in the First-tier Tribunal to which this appeal is returned for that Tribunal to remake the decision following a hearing de novo.
Notice of Decision
The decision of the First-tier Tribunal is set aside. None of the findings of fact shall stand. The appeal is returned to the First-tier Tribunal for that Tribunal to remake the decision following a hearing de novo.

C. N. Lane

Judge of the Upper Tribunal
Immigration and Asylum Chamber

Dated: 2 February 2025