Tribunal decisions

The decision

IN THE UPPER TRIBUNAL
IMMIGRATION AND ASYLUM CHAMBER
Case No: UI-2024-004184

First-tier Tribunal No: HU/61067/2023
LH/02398/2024

THE IMMIGRATION ACTS

Decision & Reasons Issued:
On 19 August 2025

Before

UPPER TRIBUNAL JUDGE HANSON

Between

AZGAN DRAGJOSHI
(NO ANONYMITY ORDER MADE)
Appellant
and

SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: Mr G Brown, instructed by Highfields Solicitors
For the Respondent: Ms Z Young, a Senior Home Office Presenting Officer.

Heard at Phoenix House (Bradford) on 18 July 2025

DECISION AND REASONS
1. In a determination promulgated on 24 April 2025 the Upper Tribunal found an error of law in the decision of a judge of the First-tier Tribunal who dismissed the Appellant’s appeal, following the Secretary of State conceding the ground the judge had failed to take into account relevant factors in respect of Exception 2, section 117C of the Nationality, Immigration and Asylum Act 2002.
2. The scope of this hearing is limited to considering the question of whether the Appellant’s deportation from the United Kingdom will result in unduly harsh consequences upon his partner and qualifying children. The findings of the First-tier Tribunal not relating to this issue are preserved, including a finding that the deportation will be harsh. All the available evidence and submissions have been considered with the required degree of anxious scrutiny even if not specifically referred to in the body of this decision.
3. It is now the case that the Appellant’s partner and their four children, N, As, Aj and Am have been naturalised as British citizens.
4. The Appellant places reliance upon the reports of Kikki Austin, an Independent Social Worker. Her initial report dated 1 February 2021 concluded there will be a substantial negative impact upon the family should the Appellant be deported. Her addendum report is dated 22 September 2023 which records that the Appellant entered the UK in July 2004 but came to the attention of the Respondent when, on 15 November 2015, he fraudulently applied for leave to remain in the UK on the basis of his family and private life. He did so using a false identity of another person and a false/fraudulent psychiatric report. The application was refused on 15 April 2016 and certified as clearly unfounded.
5. The Appellant was not removed and on 16 December 2017 he applied for leave to remain on the basis of 10-years family and private life using his own identity. During the course of his interview, under caution, he admitted his previous false application which resulted in criminal proceedings and his conviction at Leeds Crown Court on 29 June 2018 as a person who is not a British citizen obtaining or seeking leave to enter or remain in the UK by deception. On 11 July 2018 he was sentenced to 12 months imprisonment and, subsequently, made the subject of an order for his deportation on the basis his removal from the United Kingdom was conducive to the public good under section 3(5)(a) Immigration Act 1971 and in accordance with section 32(5) UK Borders Act 2007. The Applicant made a human rights application on 20 August 2018 based on his relationship with his partner, stepchild and child who are based in the UK, as an exception to Secretary of State’s ability to deport him which was refused. A fresh application for leave to remain based on private and family life was refused and is the subject of this appeal.
6. The First-tier Tribunal recorded that it is accepted the Appellant has a genuine and subsisting relationship with his partner, that he has a genuine subsisting parental relationship with his three biological children and his partner’s 10-year-old son N, and that the Appellant has never enjoyed any period of lawful leave to remain in the United Kingdom.
7. The significance of this last point is that the Appellant could not rely on Exception 1 in section 117 C as he could not meet any of the requirements of that provision as he had never enjoyed any period of lawful leave to remain in the United Kingdom.
8. The First-tier Tribunal, when considering the ‘go scenario’, namely whether it would be unduly harsh or not for the qualifying children and qualifying partner to relocate with the Appellant to Albania, concluded that it will be unduly harsh upon the partner to expect her to relocate to Albania as she has been recognised as a refugee from that country, and the Respondent’s position had to be taken that it was accepted there was a real risk of her being persecuted for a Refugee Convention reason if she is returned to Albania. The First-tier Tribunal judge also recorded the Presenting Officer on that occasion also stating that the Secretary of State was not suggesting that the four children ought to be separated from their mother meaning that the ‘go scenario’ was answered in favour of the Appellant.
9. Mr Brown made reference to the recommendations of the Independent Social Worker. In her report of 22 September 2023 it was concluded that in her professional opinion the best interests of the children are that the Appellant is granted leave to remain in the United Kingdom to enable him, his partner, and the children to continue with their family life and the bonds and links that they have with one another.
10. That it is in the best interest of the children to remain in a stable family unit is not contested by the Secretary of State, but that is not to question being considered, as the best interests of the children may be to remain within a family unit but a member of that family unit can still be lawfully deported. I accept, however, that the best interests of the children are a primary consideration.
11. The reasoning for the conclusion of the social worker is set out in section 7 of the addendum report to the following terms:
7. Conclusions and recommendations
In concluding, I reiterate the points on my previous report and refer the reader to this. Mr Dragjoshi continues to have a close and subsisting bond with his children. The bond will have intensified and further developed, given the passing of time and the time spent together during the COVID-19 pandemic. During his three periods away from the family home, due to his immigration status, the children struggled and found this upsetting and difficult. Ms Hasani found it difficult to manage day-to-day life, given her already poor physical and emotional state; Ms Hasani continues to suffer with pain and related physical difficulties. From what I have read and been informed, this can be debilitating and means that she is unable to fulfil roles associated in looking after the couple’s children.
Given what I have read, observed and been informed, it is my assessment that Mr Dragjoshi’s support remains pivotal in meeting the needs of these children. Since my last meeting with the family and subsequent report, Ms Hasani has given birth to Am, who was born with health complications. These are being monitored and treated, however, she is required to returned regular medical appointments, something, given her own health conditions, Ms Hasani would struggle to do on her own. In addition, Ms Hasani has and is, suffering emotionally and I would be concerned at how the naturally devastating loss of Mr Dragjoshi would affect her and in turn affected these children.
Again, I refer the reader to Section 55 of the Borders Citizenship and Immigration Act (2009) that requires the decision-maker to be properly informed of the position of a child affected by the discharge of an immigration function and sets out the key arrangements for safeguarding and promoting the welfare of children. Decisions affecting children must; “prevent impairment of children’s health or development (where health means ‘physical or mental health’ and development means ‘physical, intellectual, emotional, social or behavioural development.”(Home Office (2009) Every Child Matters Change for Children. https://www.golf.uk/uploads/system/uploads/attachment_data/file/25787 6/change – for – children.pdf [accessed 22 Jun. 2017])
Above, I have discussed N, As, Aj and Am’s social circumstances, I have presented evidence around these children’s bonds and links with their father and how they may be negatively affected by his long-term absence. In addition, the articles pertaining to the UN Convention on the Rights of a Child should be referred to when making decisions in relation to children. This treaty obligates ratifying countries to respect and protect the rights of all children within their territories, regardless of a child background or migration status. Article 3 of the UNCRC states that: “the best interests of the child must be a top priority in all decisions and actions that affect children.” UNICEF UK. 1990. The United Nations Convention on the Rights of the Child [online] available at: https://downloads.UNICEF.org.uk/wpcontent/uploads/2010/05/UNCRC_United_nations-convention_on_the_rights_of_the_.PDF?_ga=2.41014379.811434621.1559139036-1044959362.1557919233. [Accessed 29 May 2019]. Article 9 states that: children must not be separated from their parents unless it is in the best interests of the child (for example, in case of abuse or neglect). Every child has the right to stay in contact with both parents, unless this might harm them. This supports the fact that it is usually in the best interests of the children for parents to be harmonious in parenting them side-by-side.
As well as those already mentioned a number of documents and acts advocate for the risks to children and young people’s welfare to be minimised and that the prevention of harm to their development, emotional and physical well-being is paramount. These included 2004 Children’s Act, Working Together to Safeguard Children (2015) and Every Child Matters Change for Children (2009).
In accordance with the United Nations (UN) Convention on the rights of the child, the best interests of the child should be the primary consideration. I have outlined the best interests for N, As, Aj and Am and it is my assessment that the family members should continue to reside together in the UK. My professional opinion, to disrupt this family in any way would be detrimental to N, As, Aj and Am’s emotional health and well-being.
12. The Appellant also seeks to rely upon a Child Arrangement Order made pursuant to section 8 of the Childrens Act 1989 in relation to N which granted the Appellant a Live with Order for the child. This is the child in relation to whom the Appellant is not the biological father, but that it itself does not prevent his deportation from the United Kingdom, as a child will remain in the UK with his mother if the Appellant is removed.
13. Mr Brown also referred to the medical evidence provided and that from the school which confirmed that the Appellant “played a big part in As’s success” and picks up and drops the children as they are at different schools.
14. The medical evidence relates to Am, the Appellant’s daughter who was born on 7 June 2023. Correspondence from the NHS Mid Yorkshire Teaching NHS Trust in Wakefield records Am’s medical concerns in a letter dated 17 July 2023 sent to the family GP. At that time Am was four weeks of age and is recorded as being generally well but also having been diagnosed with a moderate perimembranous ventricle septal defect and arterial communication? Significant.
15. Dr Pye, the Consultant Paediatrician, in the section headed Assessment/Management, writes:
I have explained to the Echo findings to Am’s parents today and given them information leaflet about perimembranous ventricle septal defects. She is well and asymptomatic at the present time so we just need to monitor things, but we did discuss that if there were any concerns about Am becoming breathless or not growing very well, we may need to consider starting medications in the form of diuretics or even thinking about surgical intervention.
16. A further letter from the Mid Yorkshire Teaching NHS Trust written by Dr Michael, a Consultant Paediatric Cardiologist, dated 23 April 2025 provides an update. The letter refers to concerns about Am’s care should she have to go and live in Albania but that is not an issue as it is a preserved finding that it will be unduly harsh for the children or their mother to have to go to Albania.
17. In relation to Am’s current situation it is written:
I am employed as a Paediatric Cardiologist at Leeds Teaching Hospital NHS Trust and down the Named Consultant for Mr Dragjoshi’s daughter Am (DOB 07/06/2023). I can confirm that she remains under active Paediatric cardiology specialist follow-up. She has a diagnosis of perimembranous ventricle septal defect and for some time we had been concerned that she might be heading towards open heart surgery. Thankfully, things have stabilised and she remains under six monthly follow-up and is well in herself, but requires regular reviews to check that there has been no change to her condition that might require us to reactivate the plan for open heart surgery.
18. The evidence of the Appellant’s partner is based upon her own medical presentation, needs and difficulties she may face, but these were taken into account as part of the assessment of whether the Appellant’s deportation would be harsh. I accept that if the Appellant is deported the children’s mother will have to play a greater role in ensuring the children’s needs are met, including those relating to schooling and medical needs. I find that even though the evidence does indicate there may be some problems it does not indicate that she would not be capable of meeting the needs of her children or that the degree of care she is able to provide would result in any harm to the children, physical, emotional, or negatively impact their development.
19. The appropriate legal test is not disputed and is referred to by both advocates namely the judgement of the Supreme Court in HA (Iraq) v Secretary of State for the Department [2022] UKSC 22 in which, at [41] and [44] when addressing the question of undue harshness the court found:
[41] Having rejected the Secretary of State’s case on the unduly harsh test it is necessary consider what is the appropriate way to interpreter and apply the test. I consider that the best approach is to follow the guidance which was stated to be “authoritative” in KO (Nigeria), namely the MK self-direction:
“…‘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.”
[44] Having given that self-direction, and recognised that it involves an appropriately elevated standard, it is for the tribunal to make an informed assessment of the effect of deportation on the qualifying child or partner and to make an evaluative judgement as to whether that elevated standard has been met on the facts and circumstances of the case before it.
20. Although the Appellant and his partner, Ms Hasani, referred to her difficulties the Independent Social Workers report at page 148 refers to Ms Hasani taking Am to the appointments and the Appellant looking after the other children, indicating that provided appropriate arrangements were made for the other children the medical appointments could continue or, as submitted by Miss Young, medical appointments be arranged during a time when the other children were at school.
21. The previous finding that there was nothing from the schools to suggest the child’s education had suffered during the period the Appellant had been detained, or as a result of his uncertainty about his immigration status is noted, but what is being considered on this occasion is a more permanent arrangement with the Appellant being deported from the United Kingdom.
22. The difficulty with the Appellant’s claim that his deportation will result in unduly harsh consequences is that the nature of the evidence that has been provided does not deal adequately with the issues this tribunal is having to consider. For example, the report from the Independent Social Worker talks of the effect on the children if the Appellant is deported but there is no evidence from a child psychologist or any other form of medical expertise, other than the cardiologist, to assist with an assessment of any psychological or emotional harm that may arise.
23. Similarly, there is no updated medical evidence to indicate that Ms Hasani is unable to manage her pain in the way that she had previously or to show that she will not be able to continue to care for the children adequately if the Appellant is deported. Ms Hasani has been found to be the primary carer of the children in the past.
24. This tribunal can, however, only take into account the evidence it has been provided. Everybody was well aware of the issue the tribunal was reconsidering on this occasion limited to whether it has been established that the Appellant’s deportation will be unduly harsh on Ms Hasan and the children.
25. I find, taking into account inter alia, the preserved findings, the Zoumbas principles, the factual matrix and circumstances of the Appellant’s case as a whole, the medical evidence, and the children and their mothers situation as it is at the present time and as it may be following deportation, that the Appellant has not established the higher threshold is reached sufficient to enable me to find that his deportation will be unduly harsh upon Ms Hasani and the children. I accept that there will be an emotional consequence but it is not made out that their mother, with or without appropriate professional help including from the school GP or social services, will not be able to ensure that the children’s physical, emotional and psychological needs are met, sufficient to enable them to move forward with what I accept will be a substantial readjustment in the current living arrangements. I do not find the Appellant has made out that he can satisfy Exception 2, section 117C(5) of the 2002 Act or Exception 1(a): section 32(2) UK Borders Act 2007.
26. As none of the exceptions have been met it is necessary to consider whether the Appellant has established very compelling circumstances over and above the exceptions as per section 117C(6) of the 2002 Act.
27. I accept the offence for which the Appellant was convicted of deception is at the lower end of the scale of criminal offending, but if he has succeeded the Appellant would have been able to live in the UK with all the related benefits that will be gained. I find there is a strong public interest in deterring those who believe they can use deception to try and secure leave or any other form of immigration advantage in the United Kingdom. Although I accept the public interest is flexible I do not find the Appellant has established that he can meet the very high threshold to establish that, notwithstanding not being able to meet an exception, on the basis the same evidence he is able to establish very compelling circumstances over and above an exception. Although there is sympathy for the situation of the parents in light of understandable concerns following the birth of Am, the prognosis appears much better and the Appellant has not made out that the circumstances have a powerful, irresistible and convincing effect such as to amount to very compelling circumstances.
28. On the basis the evidence does not establish that the undue harshness test is satisfied and does not establish very compelling circumstances over and above the exceptions I must dismiss the appeal. I find the Respondent has made out that deportation is proportionate when considering any interference with a right protected by Article 8 ECHR.
Notice of Decision
29. Appeal dismissed.

C J Hanson

Judge of the Upper Tribunal
Immigration and Asylum Chamber

31 July 2025