Tribunal decisions

The decision

IN THE UPPER TRIBUNAL
IMMIGRATION AND ASYLUM CHAMBER Case Nos: UI-2024-004005, UI-2024-004207
First-tier Tribunal No: HU/57805/2023
LH/06294/2023

THE IMMIGRATION ACTS

Decision & Reasons Issued:

On 7th of July 2026

Before

UPPER TRIBUNAL JUDGE NEVILLE

Between

I A
(ANONYMITY ORDER MADE)
Appellant
and

SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
Appellant: Ms J Fathers, counsel, on 24 December 2024
Ms H Lynes, counsel, on 17 October 2025
Respondent: Ms J Isherwood, Senior Presenting Officer, on 24 December 2024
Ms L Clewley, Senior Presenting Officer, on 17 October 2025

Heard at Field House on 2 December 2024 and 17 October 2025

Order Regarding Anonymity

Pursuant to rule 14 of the Tribunal Procedure (Upper Tribunal) Rules 2008, the appellant and his family members are granted anonymity. No-one shall publish or reveal any information, including their name or address, likely to lead members of the public to identify them. Failure to comply with this order could amount to a contempt of court.

DECISION AND REASONS

1. IA is 51 years old, from Pakistan, and lives in the United Kingdom with his wife and two daughters. In 2021 he was convicted of offences concerning criminal property and sentenced to three years’ imprisonment. Parliament has decided that someone in IA’s situation must be deported unless he meets at least one of these three exceptions:
a. Exception 1 – IA must have lived in the UK lawfully for most of his life, be socially and culturally integrated here, and face very significant obstacles to integration on return to Pakistan.
Everyone agrees that IA hasn’t lived here for most of his life. He was already 26 when he first came to the UK in 2000, and his time here since 2001 has only been lawful for the last 13 years. This means that Exception 1 cannot apply. IA argued that he still met the other requirements: he had lived here as part of the community for many years, and his health, back and shoulder problems would prevent him from supporting himself and living in Pakistan.
b. Exception 2 –Deportation must be ‘unduly harsh’ upon IA’s wife and/or his children, who are all British citizens, whether they stay in the UK without IA or follow him to Pakistan. The word ‘harsh’ means severe or bleak, and ‘unduly’ means that the consequences must meet an elevated standard, going beyond what can be justified in response to such severe offending by a foreign criminal. Because all families’ situations are different, this is an evaluative judgment; two people might disagree about whether Exception 2 applies, without either of them necessarily being wrong.
IA says that his wife suffers from various illnesses including lupus, diabetes and a history of strokes. She undergoes regular dialysis and has already had a failed kidney transplant. Suffering from pain, fatigue and mobility problems, IA says she needs his help with intimate care, taking medicine, looking after the home, and getting to her dialysis treatments. IA argued that his presence was also necessary to look after their children. While one of their children is now an adult, the other was (at the relevant time) 14 years old.
c. Very compelling circumstances over and above Exceptions 1 and 2 – This is what IA must show if neither Exceptions 1 or 2 apply. It is an even higher test than ‘unduly harsh’ and most people facing deportation will not meet it. All the relevant circumstances of the case, including those already looked at, must be considered and weighed against the very strong public interest in deportation.
2. The Home Secretary (through an official acting on her behalf) decided that IA did not meet the necessary requirements. He had not lived here for at least half his life. She accepted it would be unduly harsh for IA’s wife and daughter to move to Pakistan with him, but not that it would be unduly harsh for them to stay here without him. Finally, nothing about IA’s circumstances met the high threshold of ‘very compelling circumstances’.
3. The law gave IA a right of appeal against that decision to the First-tier Tribunal (“the FtT”), where a judge had to independently decide whether IA met the exceptions to deportation. After a hearing with evidence and argument from both sides, on 15 April 2024 the FtT dismissed IA’s appeal.
4. IA has appealed to the Upper Tribunal, arguing that the FtT judge made two errors of law: first, he failed to consider all the relevant circumstances and made a mistake about the facts when deciding if deportation would be ‘unduly harsh’ on IA’s wife and children; second, if not, that he made the same error when looking at whether there are very compelling circumstances. No one suggests that the judge misunderstood the law itself, which is clearly and accurately set out in the decision.
5. Because the Upper Tribunal can only set aside the FtT’s decision if there is an error of law, IA needs to show that the judge’s findings of fact were ‘plainly wrong’. This means that no reasonable judge could have come to the same conclusion, and not that I would have decided things differently myself. I must assume that the decision was made after considering all the relevant evidence unless the reasons given by the judge show otherwise. Those principles do not just apply to findings of fact, but also to any inferences drawn from a lack of evidence, and to the judge’s evaluation of whether those facts showed that deportation would be unduly harsh.
6. Ms Fathers argued that the decision contains several errors, which I decide as follows:
a. I disagree that the judge placed too much weight on IA’s conviction for dishonesty when deciding whether to believe what he and his wife said. This was a relevant factor to consider, and it was for the judge to decide what to make of it in light of all the evidence. Nowhere in the decision does the judge disbelieve IA when what he said was obviously true. The judge was also entitled to treat IA’s wife’s evidence with the same caution despite her not having any convictions. Their case was prepared and presented jointly.
b. The judge was not required to make a binary decision on whether or not IA and his wife were credible. It was enough to say that he approached their evidence with caution, and then to decide whether there was sufficient evidence to prove each fact that they asserted. Sometimes the judge accepted what was said without any other evidence, for example at [44].
c. The decision does contain one mistake. At [62] the judge recorded that IA had said at the hearing that his wife’s aunt had come over to help while he was in prison, but that she had since died. The judge then wrongly observes that this had never been mentioned before the hearing; in fact, it had been mentioned by IA’s wife in her witness statement.
I cannot see that this mistake had any particular effect on the rest of the decision. Without the mistake, and when I read the whole paragraph, I have no doubt that the judge would still have gone on to find that extended family could provide support. This included the couple’s adult daughter who lives at home and can drive. The judge also found that social care would be available from the state to pick up any shortfall. I was not referred to any other evidence on these subjects that IA says was not taken into account, apart from IA and his wife’s assertions - the judge was entitled to not just take these at face value. So, while there is a small mistake, it does not undermine the overall findings of fact.
d. I reach the same conclusion about another mistake the judge is said to have made, being whether there was inconsistent evidence on whether IA’s wife could drive. I am less sure that the judge did make a mistake here, but even if he did then I cannot see that his overall findings were affected. There was no evidence before the judge that required him to find that IA’s wife could not receive enough practical support from her adult daughter, wider family, and the state.
e. The judge said at [51] that IA had always been able to care for his wife “at the same level at which he is currently caring for her”. This didn’t miss that IA’s wife’s health, and so the help she needed from IA, declined over time. It can just as easily be read as IA having provided constant care despite his wife’s growing needs. The judge knew all about those; he had set them out at [29], and obviously knew about her medical history.
f. I disagree that the judge failed to consider how much IA’s practical help was necessary to help his wife and the whole family. His findings of fact could hardly be clearer. Without a doubt things would be worse without IA, but his adult daughter and wider family could help out. The older daughter is an adult and the younger daughter in her mid-teens. The judge was plainly entitled to find that they could get by without IA, and carefully considered the younger daughter’s best interests.
7. All but one of the other arguments made on IA’s behalf just disagree with the judge’s evaluation of the evidence. Standing back, I see no legal error in the way the judge made findings of fact concerning the family and the practical consequences of IA’s deportation. Yet this does introduce the final argument, which is that the judge failed to recognise the consequences of deportation on IA and his wife’s relationship.
8. The ‘unduly harsh’ test is not just about whether someone could practically manage without a partner. In many cases there are other people, or state support, that will step in to provide the basics. In this case, the arguments in the FtT about practicality seem to have distracted everyone from how deportation would affect family life. Whether anyone will drive IA’s wife to her dialysis treatments, or get her up and out in the morning, was not the only issue; it is more than likely that someone will do those things but, importantly, deportation means it won’t be IA. So, the final argument I need to deal with is that the judge didn’t consider the nature and length of separation between this married couple.
9. At [63], the decision reads:
“… the medical evidence did show that her kidney transplant had not been wholly successful and as a result a further transplant was required and she continues to need dialysis. I was told she received dialysis three times a week. This means that in order to travel abroad dialysis would have to be arranged in the destination country. I accept it is likely that this makes travelling abroad very difficult indeed. I therefore take into account that while the appellant’s wife is receiving dialysis, it is likely to be difficult for her to visit the appellant, either in Pakistan or in a more convenient third country.”
10. That must be right, and indeed “likely to be difficult” is an understatement. It would be practically impossible for IA and his wife to see each other in person once he is deported. She cannot leave the UK, and under the Immigration Rules he will be banned from entering for a minimum of 10 years, perhaps longer. The judge does not consider how long the period “while the appellant’s wife is receiving dialysis” will be, but it must be until she receives a successful transplant, which could take years. It is also a sad fact that some people on dialysis never live to see it.
11. So, if IA is deported then he and his wife may not see each other for over a decade, or perhaps ever again. This is not certain, but it is a real possibility that cannot be found anywhere the decision. In all cases where someone is deported and their partner remains here, they will see much less of each other. It will often spell the end of a short relationship. This situation is plainly more severe. They have been married for 30 years, raised two children, supported each other through serious illness, including day to day intimate personal care over long periods, and will go from that to having no in-person contact at all for years.
12. For this couple, separation was therefore a particularly harsh consequence of deportation. Did the judge decide whether it was unduly harsh? He certainly expressed a conclusion that the overall circumstances were not unduly harsh on IA’s wife and their children. He did not need to set out every step of his reasoning on the way , and I must be careful not to analyse the decision too precisely or narrowly.
13. After the finding at [63], quoted above, the judge gave reasons why separation from their father, with contact only being online or on short visits, would not be unduly harsh for the children. I am sure he was entitled to make that decision, but he never returned to the topic of IA’s separation from his wife. After cautiously reading and re-reading the decision I do not know what the judge made of this consequence of deportation. It is too significant to sit silently as part of the mix the judge must have taken into account. If potentially permanent separation of this couple is acceptably harsh, which I stress it might, then IA is entitled to know why.
14. For those reasons, the FtT failed to consider a material matter when reaching a conclusion on undue harshness. Because evaluation of undue harshness is carried over into the issue of ‘very compelling circumstances’, that conclusion is affected by the error too. Without this error of law the overall outcome might have been different, so the decision to dismiss the appeal should be set aside. This is unfortunate because the decision is otherwise very careful and detailed, but the judge’s hard work is not wasted; I preserve all his findings of fact except for the inconsistencies at paragraphs 6(c) and (d) above. The findings made were sufficient to answer the remaining issues decided by the FtT, being the three requirements of Exception 1 and that deportation would not be unduly harsh for IA’s younger daughter, which are also preserved.
15. It is appropriate to re-make the decision in the Upper Tribunal. There is no unfairness in the FtT’s decision, and all that remains is a discrete issue which requires limited fact-finding.
Remaking
16. After the above reasons were sent to the parties, directions were sent listing a further hearing so that the decision could be re-made. There has been regrettable delay since.
17. The directions included that the only issues to be decided are:
a. The length and nature of the couple’s separation if IA were deported;
b. Whether that is unduly harsh upon IA’s wife; and if not
c. Also taking into account all the findings made by the FtT, whether there are nonetheless very compelling circumstances over and above those described in Exceptions 1 and 2.
18. Further evidence was provided on those subjects, the evidence (c) also including updated evidence about the consequences of deportation on IA’s younger daughter. I shall call her F, which is not her real initial.
19. A social worker with the local authority wrote a letter to say that Children’s Services have significant concerns regarding F’s wellbeing due to the prospect of her father being deported. IA provides full-care for her due to his wife’s dialysis. The author is also very concerned at the prospect of F uprooting herself and moving to Pakistan, if that proves necessary. The social worker’s assessment was likely in response to concerns being raised by a counsellor, who had written:
[F] had shared how her eating and sleeping has been disrupted, and she has taken on a control and release cycle with her food, and this raised concerns around eating disorders over the last few years. She is feeling isolated and unable to share her concerns with anyone as mum is unwell and she has also stopped attending school and cut off from many friends. This has had an impact on her GCSEs, and she has gone from high achievement to not engaging in her education.
She has also shared her feeling and thoughts about not seeing the point of things carrying on (suicidal thoughts) as she has a very close bond with dad which has traumatised her since he went to prison and is finding it very hard to connect with him since his return as there are now fears around him being deported.
20. F had further written a witness statement for these proceedings saying how it would affect her psychologically.
21. Ms Clewley argued that the matter of whether deportation would be unduly harsh upon F had been settled because of what was said in the reasons for finding an error of law, above. I consider that it is open to the Upper Tribunal to re-visit its conclusions on an error of law at any time prior to remaking the decision, subject of course to procedural fairness. In VOM (Error of law - when appealable : Nigeria) [2016] UKUT 410 (IAC) at [22](g) the Upper Tribunal divided its function into a series of three discrete steps. No formal decision has been made in the present proceedings that goes beyond finding an error of law at (i). Moreover, the Tribunal is required, when re‑making, to assess proportionality on the evidence as it stands at the date of decision. It would be wholly artificial, and undermine the statutory scheme at Part 5A of the 2002 Act, if findings on Exception 2 were fixed on a different basis than is then considered in relation to whether there are very compelling circumstances. Ms Clewly was right not to argue that the new evidence raises a ‘new matter’ such as to preclude its consideration; it is plainly further evidence of an existing issue.
22. The most important evidence comes from the local authority, which is now involved with the family. It identifies “significant concerns” about F’s emotional and psychological welfare arising from the prospect of her father’s deportation. IA is identified as her primary carer in both practical and emotional terms. He meets her daily needs, supports her education, manages her access to services, and provides her main emotional support. There is a recorded deterioration in her presentation during the proceedings: disrupted sleep, disordered eating, behavioural change and withdrawal from normal activities. Although CAMHS input has been sought, the local authority does not suggest that this would mitigate matters. Its conclusion is stronger than that, being that if IA were removed this would pose serious risks to F’s safety and welfare because there is no alternative carer available. That assessment is made in the course of statutory involvement, and I afford it weight accordingly.
23. That assessment is consistent with the independent counselling evidence. F is described as struggling to cope, with disrupted eating and sleeping, isolation from school and friends, and thoughts about not seeing the point of things continuing. Those concerns are expressly linked to her relationship with her father and her fear of losing him. In her mother’s oral evidence, she gave a compelling account of the intense emotional connection between F and her father, and how the psychological consequences of separation from him can manifest. Ms Clewley referred to the family having coped without IA while he was imprisoned, but the evidence discloses that both F and her mother’s health have declined significantly since that time, including in recent months.
24. Standing back, the evidence justifies a finding that F’s mother’s serious ill-health means that she cannot meet F’s needs on a full-time basis. IA is, on the evidence, the effective carer. His removal would not simply diminish the quality of care available to F. It would remove the person identified by professionals as meeting her daily needs, against a background of already deteriorating mental health and functioning. IA’s deportation would leave F without a capable primary carer.
25. I remind myself that “harsh” denotes something severe, or bleak, being the antithesis of pleasant or comfortable, and that “unduly” raises an already elevated standard still higher. Making the evaluative judgment described in HA at [44], and taking carefully into account the context of the public interest in the deportation of medium offenders, I find that the effect of deportation on F would be unduly harsh. That establishes a statutory Exception and is sufficient to dispose of the appeal.
Notice of Decision
(i) The decision of the First-tier Tribunal involved the making of an error of law and is set aside.
(ii) The Upper Tribunal re-makes the decision by allowing the appeal on human rights grounds.

J Neville

Judge of the Upper Tribunal
Immigration and Asylum Chamber

29 June 2026