Tribunal decisions

The decision

IN THE UPPER TRIBUNAL
IMMIGRATION AND ASYLUM CHAMBER
Case No: UI-2024-003112

First-tier Tribunal No: HU/55950/2023

THE IMMIGRATION ACTS

Decision & Reasons Issued:

11th April 2025

Before

UPPER TRIBUNAL JUDGE PINDER
DEPUTY UPPER TRIBUNAL JUDGE GREER

Between

ASHWANI KUMAR
(ANONYMITY ORDER NOT MADE)
Appellant
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: No Appearance
For the Respondent: Mr Lawson (Senior Home Office Presenting Officer)

Heard at Birmingham Civil Justice Centre on 25 March 2025

DECISION AND REASONS
Introduction
1. The Appellant appeals, with permission, the decision of Judge of the First Tier Tribunal Cartin (‘the Judge’) who dismissed his appeal against the Respondent’s decision to refuse his Human Rights Claim in a decision dated 2nd June 2024.
2. The Appellant is a 49-year-old national of India who entered the United Kingdom in 1998, holding leave to enter the United Kingdom as a visitor. In 2019 he was granted limited leave to remain in the United Kingdom. On 5th November 2021 he was convicted of an offence contrary to Section 20 of the Offences Against the Person Act 1861. On 18th January 2022 he was sentenced to 15 months’ imprisonment.
3. On 12th February 2022 the Respondent gave notice of her intention to deport the Appellant. In response to that notice, the Appellant made a Human Rights Claim, which the Respondent refused on 15th March 2023. The Appellant appealed against that decision, enjoying as he did a statutory right of appeal under the 2002 Act.
Issues before the First Tier Tribunal and its conclusions
4. Before the First Tier Tribunal, the Appellant accepted that he was a “medium” level offender for the purposes of Part 5A of the 2002 Act. He accepted that he could not meet either of the exceptions at Section 117C(4) and Section 117C(5) but submitted that that there were very compelling circumstances that outweigh the public interest in deportation within the terms of Section 117C(6). He argued that his lengthy period of residence in the United Kingdom, and strong social ties with the United Kingdom, combined with obstacles to integration upon return to India outweighed the public interest in his removal.
5. In respect of his relationship with his adult son, he argued in his Skeleton Argument:
The depth of A’s relationship with his [19-year-old son] (see A’s statement, §14-16; Amar Kumar’s statement §3-18) should be regarded as a particularly significant constituent of his protected private life. A comes from a small village in the district of Jalandhar (A’s statement 20/11/23, §2). Returning there poses significant difficulties because he is estranged from his father and brother in India (A’s statement, §23), but if he did return to his home area, this is likely to significantly impede the continuation of his relationship with his son. As noted by the country expert Rakesh Ranjan, broadband penetration’ is only 29.5% in rural India (§14.b). Moreover, frequent power outages and insufficient access to electricity pose additional obstacles (§14.f). In these circumstances, the prospects of A being able to maintain any meaningful relationship with his son by remote means appear bleak (§14.j).
6. The matter came before Judge of the First Tier Tribunal Cartin at the Birmingham Hearing Centre on 24th April 2024. In a written decision promulgated on 2nd June 2024, the First Tier Tribunal dismissed the Appellant’s Appeal.
7. At [10] – [14], the Tribunal analysed the facts giving rise to the Appellant’s criminal conviction and found that, “ there is a strong public interest in deporting this Appellant in light of his offending”. At [18], the Tribunal found that the Appellant was socially and culturally integrated in the United Kingdom. At [19], the Tribunal rejected the submission that the Appellant would face very significant obstacles to his integration upon return to India.
8. In respect of the Appellant’s relationship with his son, the Tribunal noted the Appellant’s role in his son’s upbringing (at [18]), and at [29] observed that they had a good relationship. At [36] the Tribunal found that the Appellant could continue to have contact with his son if he were to return to India, and at [37] found that the Appellant and son did not enjoy a protected family life with one another for the purposes of Article 8(1) of the ECHR.
9. At [41] to [50] the Tribunal conducted a balancing exercise, reaching the conclusion at [50], that, “balancing the factors in favour of his private life against the strong public interest, I am not persuaded that there are very compelling circumstances which outweigh the public interest in deportation.”
The Grounds of Appeal to the Upper Tribunal
10. The Appellant sought permission to appeal on 3 grounds. They are drafted in admirably concise terms and it is convenient to set them out in full:
a. Making a material misdirection of law. At §40 the Judge relies upon the decision of the Tribunal in Imran (Section 117C(5); children, unduly harsh : Pakistan) [2020] UKUT 83 (IAC) (11 February 2020) and the approach therein to the unduly harsh test. However Imran, and the test set out therein, is not good law and was overturned by the Court of Appeal in MI (Pakistan) v Secretary of State for the Home Department [2021] EWCA Civ 1711 (18 November 2021). The Judge has therefore relied upon an erroneous approach based on overturned case law, this vitiates his decision.
b. Making a material misdirection of law. At §§36-39 the Judge finds that the Appellant does not have family life with his son relying on the fact that the son is a young adult (20) who is away at university. The Judge has erred in his approach to family life. The Appellant’s son is a young adult and university is a temporary arrangement where a young adult is away from home notwithstanding that they are still a dependent part of the family unit (Secretary of State for the Home Department v HK (Turkey) [2010] EWCA Civ 583 (27 May 2010) & A.A. v. THE UNITED KINGDOM - 8000/08 [2011] ECHR 1345 (20 September 2011)). The Judge has erred. This error also vitiates the Judge’s consideration of very compelling circumstances.
c. Failing to consider material matters. Before the Judge was an expert country report from Dr Rakesh Ranjan. The expert report is 13 pages long and the conclusions of the expert was summarised at §16 of the Appeal Skeleton Argument and at §15 of the expert report itself. The Judge briefly addresses the expert report at §§30-32 but fails to properly engage with the full extent of the expert’s conclusions. The Judge has erred and has failed to properly engage with the expert report.
11. By order of Judge of the First Tier Tribunal Dainty dated 4th July 2024, the Appellant was granted permission to appeal in respect of Grounds 1 and 2. Judge Dainty refused permission to appeal in respect of Ground 3.
The Hearing
12. This matter came before us for an in-person hearing at the Birmingham Hearing Centre. By 10:20am, the Appellant had not attended the hearing centre. The Tribunal clerk called for the Appellant over the Hearing Centre’s Public Address system. The only person associated with the case who was in attendance at the hearing room at 10:30am was Mr Lawson and the court interpreter who had been booked to assist the Appellant. We considered whether to proceed in the Appellant’s absence in accordance with Upper Tribunal Procedure Rule 38.
13. It is clear from the Tribunal’s file that the Appellant was sent notice of the hearing by post and by email on 26th February 2025, which is around 4 weeks prior to the hearing. We satisfied ourselves, therefore, that the Appellant had been given reasonable notice of the hearing.
14. Mr Lawson urged us to proceed with the hearing in the Appellant’s absence. He noted that the Tribunal had adjourned the hearing on 2 previous occasions. As was the case at the hearing before us, the Secretary of State had been represented and in a position to proceed on those other occasions. He argued that it would serve no meaningful purpose for the matter to be adjourned again and the interests of justice militated in favour of the hearing proceeding in the Appellant’s absence.
15. We found ourselves agreeing with Mr Lawson. The matter has been adjourned on two previous occasions and the Respondent was in a position to proceed. The Appellant’s absence was unexplained. In such circumstances, we determined that it was in the interests of justice to proceed with the hearing.
16. We heard submissions from Mr Lawson. At the end of the hearing, we reserved our decision.
Discussion and Conclusions
Ground 1
17. The Appellant argues that the First tier Tribunal misdirected itself by referring to the authority of Imran (s117C(5): children, unduly harsh) [2020] UKUT 83. He says that this was appealed successfully and is no longer good law. Therefore, it was wrong for the Tribunal to follow it.
18. We find that the First Tier Tribunal did misdirect itself in law in its reference to Imran at [40]. This is because Mr Imran successfully appealed the Upper Tribunal’s decision to the Court of Appeal. The Court of Appeal set aside the UT's decision, and restored the decision of the FTT that the consequences of Mr Imran's deportation would be unduly harsh on his children. The direction at paragraph [40] of the First Tier Tribunal’s determination that, “there must be evidence that the Appellant is of particular importance in the life of the child, and thus the emotional harm that will be likely to flow from separation” is incompatible with the position at [49] – [50] of MI (Pakistan) v Secretary of State for the Home Department [2021] EWCA Civ 1711.
19. However, when considered in its proper context, we find that this misdirection is immaterial. This is because the First Tier Tribunal’s finding that the Appellant’s removal would not cause, “unduly harsh,” consequences for the Appellant’s son was made in the alternative, after the Tribunal had made the finding that the Appellant does not have a protected family life with his son for the purposes of Article 8(1), a finding which we consider was open to the FTT for the reasons that we have set out when considering the Appellant’s second ground further below in this decision. As the Tribunal correctly observed at [40], the Appellant’s son was over the age of 18 at the date of the hearing and, therefore, the Appellant could not succeed under the exemption at Section 117C(5), which required the Appellant to have a genuine and subsisting parental relationship with a child under 18.
20. In any event, the Appellant, in his skeleton argument before the First Tier Tribunal, conceded that the Appellant could not succeed under the exception at Section 117C(5). It is clear on the materials before the Tribunal that any rational tribunal must have come to the same conclusion in respect of the Appellant’s entitlement to succeed under the exemption at Section 117C(5) (see Secretary of State for the Home Department v AJ (Angola [2014] EWCA Civ 1636 at [49]). We find that the Tribunal’s misdirection in respect of the unduly harsh test under Section 117C(5) was immaterial to the outcome.
Ground 2
21. The Appellant argues that the Tribunal misdirected itself in law by finding that the Appellant and his son did not enjoy a family life for the purposes of Article 8(1). For the reasons that follow, we find that the First Tier Tribunal did not misdirect itself in law.
22. It is important to note here that the Appellant did not argue before the First Tier Tribunal that he enjoyed a family life with his son for the purposes of Article 8(1). Rather, it is clear from the way his case was put in his skeleton argument that he argued that his relationship with his son formed part of his Private Life (at paragraph 14 of his Skeleton Argument).
23. In any event, at [39], the First Tier Tribunal directed itself, correctly, in respect of the case of Kugathas v Secretary of State for the Home Department [2003] EWCA Civ 31. The Tribunal found (at [39]) that there is nothing beyond the normal emotional ties that exist between a father and his adult son which suggests ‘real, committed or effective support’ is being provided. This finding follows the Tribunal’s assessment of the evidence before it in respect of the nature and extent of the contact between the Appellant and his son, since the Appellant’s release from prison (at [36] – [37]), and the Tribunal’s findings as to the Appellant’s son’s independence (at [29]). The Tribunal found that the Appellant and his son had seen each other two to three times since the end of the Appellant’s sentence. It was open to the Tribunal to find, as it did, that the Appellant had not demonstrated that there was a state of dependency going beyond the normal emotional ties that exist between a father and his adult child.
24. The Appellant, in his written grounds of appeal, prays in aid of Secretary of State for the Home Department v HK (Turkey) [2010] EWCA Civ 583 (27 May 2010). Whilst the Tribunal does not refer to this authority on its face, it is apparent that the Tribunal has applied it in substance. In that case, the Court of Appeal recognised at [17] that the critical issue for the Tribunal to determine is whether family life existed at the date of the hearing. This is consistent with the Tribunal’s focus, at [36], upon matters as they stood at the date of the hearing before him.
25. In his grounds of appeal, the Appellant also relies upon A.A. v. THE UNITED KINGDOM - 8000/08 [2011] ECHR 1345. This authority was drawn to the First Tier Tribunal’s attention in the Appellant’s Skeleton argument. There, the principle in the authority was summarised, accurately, in the following terms:
In AA v United Kingdom 8000/08 [2011] ECHR 1345, the ECtHR held at [49] that “it must be accepted that the totality of social ties between settled migrants and the community in which they are living constitutes part of the concept of “private life” within the meaning of Article 8. Thus, regardless of the existence or otherwise of a “family life”, the expulsion of a settled migrant constitutes an interference with his right to respect for private life. While the Court has previously referred to the need to decide in the circumstances of the particular case before it whether it is appropriate to focus on “family life” rather than “private life”, it observes that in practice the factors to be examined in order to assess the proportionality of the deportation measure are the same regardless of whether family or private life is engaged (Üner, cited above, §§ 57-60).
26. The First Tier Tribunal’s approach is in accordance with that principle. This is because, after finding that the Appellant and his son did not enjoy a protected family life with one another, the First Tier Tribunal went on to consider the Appellant’s relationship with his son as part of the Appellant’s private life, when considering the proportionality of the Respondent’s decision. At [43], the First Tier Tribunal kept in mind, “the depth of the Appellant’s integration in United Kingdom society in terms of family, employment and otherwise” and determined that this was not entitled to a great deal of weight, when determining whether the Appellant’s private life outweighed the public interest. At [44], the Tribunal found that the relationship between the Appellant and his son as it stood at the date of the hearing before it, could continue to be enjoyed without suffering interference, or in the alternative a disproportionate interference. This finding was open to the Judge.
27. We remind ourselves that we can only interfere with a decision of the First Tier Tribunal if satisfied that a material error of law is shown in the First-tier Tribunal Judge's decision. It was open to the First Tier Tribunal to dismiss the appeal, and it did so in this case upon a correct interpretation of the law and with adequate reasoning. It is not the role of the Upper Tribunal to substitute its own view in the absence of an error of law and we have been particularly careful in this case to remind ourselves of the judgment of Baroness Hale at paragraph 30 of AH (Sudan) v Secretary of State for the Home Department [2007] UKHL 49:
"[The decisions of expert tribunals] should be respected unless it is quite clear that they have misdirected themselves in law. Appellate courts should not rush to find such misdirection's simply because they might have reached a different conclusion on the facts or expressed themselves differently."
28. For those reasons the decision of the First Tier Tribunal did not involve the making of a material error on a point of law. The decision of the First Tier Tribunal to allow the appeal shall stand.
29. Permission to appeal was not granted in respect of Ground 3 and it is not necessary for us to determine it.
Notice of Decision
1. The decision of the First Tier Tribunal did not involve the making of a material error on a point of law. The decision of the First Tier Tribunal shall stand.

J. Greer

Deputy Judge of the Upper Tribunal
Immigration and Asylum Chamber

1st April 2025