Tribunal decisions

The decision

IN THE UPPER TRIBUNAL
IMMIGRATION AND ASYLUM CHAMBER Case No: UI-2024-004428
First-tier Tribunal No: HU/00317/2024

THE IMMIGRATION ACTS

Decision & Reasons Issued:
On 18 August 2026

Before

UPPER TRIBUNAL JUDGE O’BRIEN

Between

SECRETARY OF STATE FOR THE HOME DEPARTMENT
Appellant
and

INAM ZAID MOHAMMAD
(NO ANONYMITY ORDER MADE)
Respondent

Representation:
For the Appellant: Did not attend and was not represented
For the Respondent: Mrs R Arif, Senior Home Office Presenting Officer

Heard at Birmingham Civil Justice Centre on 19 May 2026

DECISION AND REASONS

1. In order to avoid confusion, I refer below to the parties as they were known before the First-tier Tribunal.

2. The appellant appeals against a decision of the respondent to refuse a human rights claim made in the context of deportation proceedings. The appellant had been convicted on 20 June 2023 of stalking involving serious alarm/distress and sentenced to 27 months’ imprisonment (reduced on appeal to 21 months).

3. The appellant’s appeal was allowed by the First-tier Tribunal in a decision and reasons dated 12 August 2024. However, that decision was set aside by Upper Tribunal Judge Keith in a decision dated 2 January 2025. He retained the appeal for remaking in the Upper Tribunal with findings preserved that there are genuine relationships between the appellant and his parents and his younger siblings, he has lived with them and has returned to live in the family setting since his release from prison, but otherwise no findings preserved. The error of law decision is annexed below.

4. The appellant did not attend and was not represented. Neither did any of the witnesses who provided witness statements attend the hearing. The notice of hearing had been served on the appellant’s representatives by email on 2 April 2026, that address being one the representatives had used in correspondence with the Tribunal as recently as 5 March 2026. No notice had been received that they had ceased thereafter to act, no application had been made for an adjournment and no correspondence had been received by the Tribunal about problems experienced by the appellant or representative attending. In the circumstances, I was content that it was in the interests of justice to proceed in the appellant's absence and granted Mrs Arif’s application so to do.

5. I had the benefit of the error of law bundle (a 379pp pdf document), a further bundle of documents from the appellant (a 274pp pdf document), and a skeleton argument from the appellant’s representatives. The bundles included statements from the appellant and a number of his relatives. Mrs Arif made oral submissions. Whilst I refer below only to such matters as necessary to understand my decision, I took all of the evidence and submissions into account in their entirety.

The Law

6. This Tribunal materially held in Vargova (EU national: post 31 December 2020 offending: deportation) [2024] UKUT 336 (IAC) (upheld by the Court of Appeal in Molnar v SSHD & Vargova v SSHD [2026] EWCA Civ 31) that:

a. There is a 'bright line' distinction to be drawn between the regimes that apply to (i) Union citizens, their family members, and other persons, who exercise rights under the Withdrawal Agreement ('WA') who commit offences prior to the end of the transition period and (ii) such persons who commit offences after this date.
b. The question of whether a 'relevant person' who commits a criminal offence after the specified date is liable to deportation must be considered by reference to the United Kingdom's domestic law, at both the initial decision-making stage and in any subsequent appeal - see Article 20(2) WA. In such cases, Article 21 WA does not import into domestic law the substantive safeguards which are found in the Directive, such as a requirement to apply the EU law concept of proportionality. The 'safeguards' which are available to such individuals as a result of Article 21 WA are restricted to procedural safeguards only.

7. Part 5A of the Nationality, Immigration and Asylum Act 2002 sets out those considerations to which this Tribunal must have regard under domestic law when determining whether a decision made under the Immigration Acts breaches a person’s rights under article 8 ECHR and as a consequence would be unlawful under s6 of the Human Rights Act 1998.

8. In all cases, the maintenance of effective immigration controls is in the public interest (s117B(1)). Little weight should be given to a private life established at a time when a person’s immigration status is precarious (that is to say when an individual enjoys anything less than indefinite right to remain in the United Kingdom) or his presence unlawful (s117B(4)(a) and s117B(5)). Little weight should be given to a relationship with a qualifying partner that is established when the person is in the United Kingdom unlawfully (s117B(4)(b)). Little weight does not mean no weight at all; moreover, this general approach can be overridden where there are compelling reasons to do so (Rhuppiah v SSHD [2016] EWCA Civ 803).

9. The deportation of foreign criminals is in the public interest (s117C(1)). The more serious the offence committed by the criminal, the greater the public interest in deportation (s117C(2)). However, per s117C(3) the public interest does not require the deportation of a person sentenced to a period of imprisonment of less than four years if one or both of the exceptions prescribed by ss117C(4) and (5) apply. Otherwise, or if the individual has been sentenced to at least four years imprisonment, the public interest requires deportation unless there are very compelling circumstances, over and above those two statutory exceptions (s117C(6)).

10. Specifically, ss117C(4) and (5) provide:

‘(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.’

11. The test to be applied when deciding whether deportation gives rise to unduly harsh consequences was confirmed by the Supreme Court in KO (Nigeria) at [41] and its application considered in the subsequent paragraphs:

‘41. Having rejected the Secretary of State’s case on the unduly harsh test it is necessary to consider what is the appropriate way to interpret 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.”

42. This direction has been cited and applied in many tribunal decisions. It 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. It further recognises that “unduly” raises that elevated standard “still higher” - ie it involves a highly elevated threshold or standard. As Underhill LJ observed at para 52, it is nevertheless not as high as that set by the “very compelling circumstances” test in section 117C(6).

43. Whilst it may be said that the self-direction involves the use of synonyms rather than the statutory language, it is apparent that the statutory language has caused real difficulties for courts and tribunals, as borne out by the fact that this is the second case before this court relating to that language within four years. In these circumstances I consider that it is appropriate for the MK self-direction to be adopted and applied, in accordance with the approval given to it in KO (Nigeria) itself.

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 judgment as to whether that elevated standard has been met on the facts and circumstances of the case before it.’

12. The Supreme Court then set out the general principles applicable to the ‘very compelling circumstances’ test at [46]-[52]:

46. Under section 117C(6) of the 2002 Act deportation may be avoided if it can be proved that there are “very compelling circumstances, over and above those described in Exceptions 1 and 2”.

52. The difference in approach called for under section 117C(6) as opposed to 117C(5) was conveniently summarised by Underhill LJ at para 29 of his judgment as follows:

“(A) In the cases covered by the two Exceptions in subsections (4)-(5), which apply only to medium offenders, the public interest question is answered in favour of the foreign criminal, without the need for a full proportionality assessment. Parliament has pre-determined that in the circumstances there specified the public interest in the deportation of medium offenders does not outweigh the article 8 interests of the foreign criminal or his family: they are, given, so to speak, a short cut. The consideration of whether those Exceptions apply is a self-contained exercise governed by their particular terms.

(B) In cases where the two Exceptions do not apply - that is, in the case of a serious offender or in the case of a medium offender who cannot satisfy their requirements - a full proportionality assessment is required, weighing the interference with the article 8 rights of the potential deportee and his family against the public interest in his deportation. In conducting that assessment the decision-maker is required by section 117C(6) (and paragraph 398 of the Rules) to proceed on the basis that ‘the public interest requires deportation unless there are very compelling circumstances over and above those described in Exceptions 1 and 2’.”

53. In Rhuppiah v Secretary of State for the Home Department [2016] 1 WLR 4203 at para 50 Sales LJ emphasised that the public interest “requires” deportation unless very compelling circumstances are established and stated that the test “provides a safety valve, with an appropriately high threshold of application, for those exceptional cases involving foreign criminals in which the private and family life considerations are so strong that it would be disproportionate and in violation of article 8 to remove them.”

54. As explained by Lord Reed in his judgment in Hesham Ali v Secretary of State for the Home Department [2016] UKSC 60; [2016] 1 WLR 4799 at para 38:

“… great weight should generally be given to the public interest in the deportation of [qualifying] offenders, but … it can be outweighed, applying a proportionality test, by very compelling circumstances: in other words, by a very strong claim indeed, as Laws LJ put it in the SS (Nigeria) case [2014] 1 WLR 998. The countervailing considerations must be very compelling in order to outweigh the general public interest in the deportation of such offenders, as assessed by Parliament and the Secretary of State.”

55. How Exceptions 1 and 2 relate to the very compelling circumstances test was addressed by Jackson LJ in NA (Pakistan). In relation to serious offenders he stated as follows:

“30. In the case of a serious offender who could point to circumstances in his own case which could be said to correspond to the circumstances described in Exceptions 1 and 2, but where he could only just succeed in such an argument, it would not be possible to describe his situation as involving very compelling circumstances, over and above those described in Exceptions 1 and 2. One might describe that as a bare case of the kind described in Exceptions 1 or 2. On the other hand, if he could point to factors identified in the descriptions of Exceptions 1 and 2 of an especially compelling kind in support of an article 8 claim, going well beyond what would be necessary to make out a bare case of the kind described in Exceptions 1 and 2, they could in principle constitute ‘very compelling circumstances, over and above those described in Exceptions 1 and 2’, whether taken by themselves or in conjunction with other factors relevant to application of article 8.”

In relation to medium offenders he stated:

“32. Similarly, in the case of a medium offender, if all he could advance in support of his article 8 claim was a ‘near miss’ case in which he fell short of bringing himself within either Exception 1 or Exception 2, it would not be possible to say that he had shown that there were ‘very compelling circumstances, over and above those described in Exceptions 1 and 2’. He would need to have a far stronger case than that by reference to the interests protected by article 8 to bring himself within that fall back protection. But again, in principle there may be cases in which such an offender can say that features of his case of a kind described in Exceptions 1 and 2 have such great force for article 8 purposes that they do constitute such very compelling circumstances, whether taken by themselves or in conjunction with other factors relevant to article 8 but not falling within the factors described in Exceptions 1 and 2. The decision-maker, be it the Secretary of State or a tribunal, must look at all the matters relied upon collectively, in order to determine whether they are sufficiently compelling to outweigh the high public interest in deportation.”

He also emphasised the high threshold which must be satisfied:

“33. Although there is no ‘exceptionality’ requirement, it inexorably follows from the statutory scheme that the cases in which circumstances are sufficiently compelling to outweigh the high public interest in deportation will be rare. The commonplace incidents of family life, such as ageing parents in poor health or the natural love between parents and children, will not be sufficient.”

56. When considering whether there are very compelling circumstances over and above Exceptions 1 and 2, all the relevant circumstances of the case will be considered and weighed against the very strong public interest in deportation. As explained by Lord Reed in Hesham Ali at paras 24 to 35, relevant factors will include those identified by the European Court of Human Rights (“ECtHR”) as being relevant to the article 8 proportionality assessment. In Unuane v United Kingdom (2021) 72 EHRR 24 the ECtHR, having referred to its earlier decisions in Boultif v Switzerland (2001) 33 EHRR 50 and Üner v The Netherlands (2006) 45 EHRR 14, summarised the relevant factors at paras 72-73 as comprising the following:

“• the nature and seriousness of the offence committed by the applicant;
• the length of the applicant’s stay in the country from which he or she is to be expelled;
• the time elapsed since the offence was committed and the applicant’s conduct during that period;
• the nationalities of the various persons concerned;
• the applicant’s family situation, such as the length of the marriage, and other factors expressing the effectiveness of a couple’s family life;
• whether the spouse knew about the offence at the time when he or she entered into a family relationship;
• whether there are children of the marriage, and if so, their age; and
• the seriousness of the difficulties which the spouse is likely to encounter in the country to which the applicant is to be expelled …
• the best interests and well-being of the children, in particular the seriousness of the difficulties which any children of the applicant are likely to encounter in the country to which the applicant is to be expelled; and
• the solidity of social, cultural and family ties with the host country and with the country of destination.”

57. The weight to be given to the relevant factors falls within the margin of appreciation of the national authorities. As Lord Reed explained in Hesham Ali at para 35:

“35. While the European court has provided guidance as to factors which should be taken into account, it has acknowledged that the weight to be attached to the competing considerations, in striking a fair balance, falls within the margin of appreciation of the national authorities, subject to supervision at the European level. The Convention on Human Rights can thus accommodate, within limits, the judgments made by national legislatures and governments in this area.”’

Consideration

13. It is not in dispute that the appellant is an Italian, that the offence for which he is considered liable for deportation was committed after 11pm on 31 December 2020 and thus that he is a ‘foreign criminal’ whose deportation must be considered in accordance with domestic law. His appeal against the respondent’s ‘stage one’ notification of liability for deportation served on 27 July 2023 was dismissed by the First-tier Tribunal.

14. On 8 August 2023, the appellant made representations under Article 8 ECHR. It is his appeal against the respondent’s refusal of that human rights claim which this decision concerns. As he was sentenced to a period of imprisonment of at least 12 months but less than 4 years, I must consider whether either of the statutory exceptions detailed above apply and, if not, whether there are very compelling circumstances rendering deportation disproportionate.

15. It is not in issue that the appellant does not have a qualifying parter or any qualifying children. Consequently, he cannot meet exception 2. As for exception 1, it is not in issue that the appellant entered the United Kingdom in 2016 and therefore has not lived in the United Kingdom lawfully for most of his life. In other words, he does not meet exception 1.

16. The appellant’s case in short is that there are very compelling circumstances. The latter include his rehabilitation and remorse, social and cultural integration into the United Kingdom and very significant obstacles to reintegration into Italy, together with the effect of deportation on his family. These are all matters which the appellant has to prove on the balance of probabilities and which the respondent does not accept.

17. I necessarily have to consider individually each of the matters relied upon by the appellant, but have also stood back to consider their cumulative effect.

18. The appellant in his hand-written statement dated 12 April 2024 expresses remorse. In particular, he says:

‘Being in prison has made me realise how unacceptable and childish my behaviour has been and there hasn’t been a day I wished I could go back in time and change the way I behaved.
Unfortunately I can’t change the past but I can change the future by being a better person and keep myself out of trouble.
Therefore, I sincerely apologise for my behaviour and committing offence. I understand this kind of behaviour is unacceptable and I’m truly sorry and regretful for my conduct. I take full responsibility for what I did.
I promise this kind of behaviour won’t repeat itself, I won’t commit any further offences, I will comply with all UK laws and I will be a better and sensible poor person towards people around me and other members of the public.
…
I sincerely apologise, from deep down of my heart for my conduct and I promise it won’t happen again.’

19. However, any suggestion that the appellant displays insight into his offending behaviour is rather undermined by what he says earlier in that letter about breaching his restraining order (my emphasis):

‘I’m going to start with a breach of restraining order conviction.
It was a missed call for which I have no valid reasons or excuse to why it happened.
It wasn’t till after I press the call button that I realised that it was the wrong thing to do so I hung up the call blocked her from my site and had no further contact..
I’ve got arrested for the matter three weeks later after she made false reports to the police. Since the call had happened I’ve kept myself busy in looking for a job and moving on with my life so I could help my dad with the bills.’

20. Even if I had accepted that the victim had made false reports to the police, the fact remains that the appellant breached the restraining order, and his attempt to blame the victim indicates to me only limited remorse (and more likely regret for the consequences to himself of his actions). As it is, the appellant accepts in his most recent statement dated 14 June 2025 that the breach did not result simply in recall to custody but a fine, suggesting a further conviction and the likelihood that the victim’s account had been accepted. Either way, I find that the appellant has displayed at best limited remorse for his behaviour (about which more below), notwithstanding his protestations in his most recent statement.

21. The only OASys report on the appellant before me (following an assessment on 11 April 2023) says the following, :

‘Should his state of mind have improved to the level indicated by the responses for this assessment, it would suggest it has the imminence of further harm related behaviour appears to have reduced. It recognises this is a considerable change in the situation to the way behaved prior to his remand. Including appreciating that before losing his liberty, little appeared to have deterred him. This change in approach is based on his acceptance that the victim does not want to engage with him, and he is ready to move on.

In support of assisting him to do so will be work on the consequences of offending, challenges around his thinking and attitudes along with work on developing his empathy for the victim.

In addition, he will be encouraged to develop the means to face challenges he has in respect of gaining confidence and self esteem. Including work identified in thinking section around him developing his understanding of the impact of failing to consider the victims wishes.

By encouraging him to focus on his new way of thinking, is anticipated that he will be able to demonstrate his intent to move on. Including respecting the concept that is attention was unrequited. In support of this will be work on helping him to come to terms with the irrational way he viewed the victim and by doing so, inculcate a more rational way of behaving.

This work can be undertaken on a one-to-one basis considering his low OGRS score. The Court may wish to consider what level of prohibitions can be usefully applied given what I understand is the proximity between him and where the victim lives.

Part of dealing with these risk includes addressing an irrational and distorted level of thinking at the time of the offences. But doing so will build on is understanding of the gravity of what he did.

This appears to emanate realisation that at the time his thinking was such that he shut out all other possibilities in regard to his conduct. This included his previous failure to understand the consequences of his behaviour and its impact on the victim.

Having had time to consider the enormity of his behaviour, his change in attitude has allowed him to develop a greater understanding of several aspects of his conduct.

Most importantly is his realisation that the victim does not want to be in a relationship with him and having seen the impact of what he did, he has come to accept this. Allowing him to think more rationally and with it his wish to demonstrate he no longer has any intention to continue with his stalking related behaviour.

Therefore, work on reinforcing this through victim awareness consequential thinking and in support of his efforts to desist from offending are aspects he is able to engage on.

This would seek to encourage a more consistent approach by him around his new-found awareness as he seeks to demonstrate a different approach in his thinking. By developing his empathy and with it a more realistic view of his conduct, it is envisaged that this will be basis on which to work with Mr Mohammed on his stated resolve to avoid further offending.’

22. The author appears to have accepted that the appellant was displaying (or at least expressing) a degree of rehabilitation. However, by the end of the year, the appellant was (at the very least) contacting his victim again. There has been no updated risk assessment undertaken in light of the breach and I am unpersuaded that the appellant is truly rehabilitated. Furthermore, it would seem that any rehabilitative work undertaken by/with the applicant was ineffective.

23. The appellant was born in Pakistan in 1999 and lived in Italy from 2006 until he arrived in the United Kingdom with his parents and siblings in 2016. He has since then been educated and employed in this country. He has produced amongst other things certificates relating to qualifications in English, mathematics, information technology. employability skills and performing engineering operations. He has also passed basic fork-lift truck training. It is not in issue that the appellant speaks English to an acceptable standard. Supportive letters have been provided from family friends as well as family members. All in all, and notwithstanding his offending, I find that the appellant is socially and culturally integrated into the United Kingdom.

24. The appellant and his family claims that he has no proficiency in the Italian language. However, none have attended to be challenged on that assertion. The appellant spent 11 formative years in that country (from around 7 to around 18 years of age), and I am unable to accept he no longer speaks any Italian, and further that he would not be able to refresh his skills within a reasonable period of time. He has transferrable employment-related skills, and no proper evidence has been provided that rusty language skills would be a significant barrier to obtaining employment or that the appellant, as an Italian national, would be unable to access welfare support if necessary until securing employment. Even if I were to accept that the appellant has no friends or family in Italy, he falls well short of persuading me that he faces very significant obstacles to reintegration.

25. It is a preserved finding that the appellant has genuine and subsisting relationships with his parents and younger siblings, lived with them before prison, and that he lives again with them now. I am prepared therefore to accept that family life exists between them. However, I do not accept that the family is dependent on the appellant. First, they were able to survive whilst he was imprisoned. Second, the evidence is somewhat inconsistent on the point. The appellant’s father said in his statement dated 21 May 2024 that the family genuinely needed the appellant’s financial support (paragraph 8) and that he was borrowing money to survive, and repeated the assertion in his later statement of 14 June 2025. However, in his recent undated statement (page 217 of the 274pp pdf), he confirms he keeps his bank account £3,000 in credit, and a statement from the cousin from whom £3,000 was borrowed confirms that the money was borrowed for the appellant’s benefit.

26. I have no doubt that this family is close. They have all provided statements to that effect, as well as photographs of them together. The appellant also contributes to the household expenses it would appear (although I am unpersuaded that this is disproportionate to the household resources he uses). Nevertheless, there is no persuasive evidence that his deportation would be contrary to his child siblings’ best interests or would have unjustifiably harsh consequences for any of the family.

27. Nevertheless, I weigh the disruption to the appellant and his family in the balance in his favour, as do I his integration into this country, including the private and family life he has established over the nearly decade of lawful (and latterly settled) residence. I also add to the balance in his favour the limited rehabilitation and remorse exhibited. He speaks English and is financially independent of the state (although these are neutral factors).

28. Against that must be weighed the public interest in his deportation. Even after reduction on appeal, the appellant’s offence attracted a 21-month prison sentence. The details of the offence are deeply unattractive. The sentencing judge describes persistent unwanted contact using newly created social media accounts when old ones were blocked, including sending pictures of self-harm. Particularly concerning events included: trying to collect his victim’s son from her mother’s house without her knowledge or permission; shouting, kicking and punching at his victim’s door in an encounter lasting around 40 minutes; and sending messages that he was watching her property. The course of conduct spanned around 3 months and had a very significant psychological effect on his victim.

29. In short, the public interest in the appellant’s deportation is very strong, and significantly outweighs everything telling in the appellant's favour. For these reasons, there are no very compelling circumstances rendering deportation disproportionate, and the appeal is dismissed.

Notice of Decision

1. The decision of the First-tier Tribunal involved the making of an error on a point of law and is set aside with limited facts preserved.
2. The decision of the First-tier Tribunal is remade in accordance with those preserved facts and is dismissed on human rights grounds.
3. The appeal having been dismissed, there can be no fee award.

Sean O’Brien

Judge of the Upper Tribunal
Immigration and Asylum Chamber

7 August 2026
Annex

IN THE UPPER TRIBUNAL
IMMIGRATION AND ASYLUM CHAMBER Case No: UI-2024-004428
First-tier Tribunal No: HU/00317/2024

THE IMMIGRATION ACTS

Decision & Reasons Issued:

…………………………………

Before

UPPER TRIBUNAL JUDGE KEITH

Between

The Secretary of State for the Home Department
Appellant
and

Mr Inam Zahid Muhammad
(NO ANONYMITY ORDER MADE)
Respondent

Representation:
For the Appellant: Ms S Simbi, Senior Home Office Presenting Officer
For the Respondent: Mr Kannangara, Counsel, instructed by Jusmount & Co Solicitors

Heard at Birmingham Civil Justice Centre on 10 December 2024

DECISION AND REASONS
1. These written reasons reflect the full oral decision which I gave to the parties at the end of the hearing.
2. To avoid any confusion, I refer to the parties as they were before the First-tier Tribunal, namely the claimant and the Secretary of State. This is the Secretary of State’s appeal against the decision of Judges Russell and Dixon of the First-tier Tribunal who, in a decision and reasons promulgated on 13th August 2024, allowed the claimant’s appeal against a ‘stage 2’ deportation decision on human rights grounds.

The background
3. In a clearly reasoned and structured decision, the Tribunal set out the background to the claimant’s immigration history. The claimant, having been born in Pakistan, is an Italian national. He was born in 1999, and lived in Italy from around 2006 until he came to the UK as a child in 2016 with his parents and four younger siblings. It follows that he was schooled in Italy and understands and speaks Italian, although as the Tribunal found, he was not fluent.
4. On 22nd April 2022, he was granted indefinite leave to remain under the EUSS Scheme. On 22nd June 2023, he was convicted of stalking, involving serious alarm or distress, and sentenced to 27 months’ imprisonment, subsequently reduced by the Court of Appeal to 21 months. On 27th July 2023, the Secretary of State served notice of a decision to make a deportation order against him. As a person with EUSS leave to remain, he appealed this ‘stage 1’ decision under Regulation 6 of the Immigration (Citizens’ Rights Appeal) (EU Exit) Regulations 2020. That appeal was dismissed by First-tier Tribunal Judge Fenoughty following a hearing on 31st May 2024. On 5th August 2023, the claimant submitted Article 8 representations in response to the stage 1 decision. Those were rejected by the Secretary of State and a deportation order was signed on 2nd February 2024. It was in the context of human rights grounds that the claimant appealed against that decision.
5. The Tribunal went on to remind itself of the law at §6 to §10. The claimant is what is statutorily defined under Section 117 of the Nationality, Immigration and Asylum Act 2002 as a ‘foreign criminal’, by virtue of the index offence. In that context, it was accepted that although the claimant could not satisfy the so-called Exceptions 1 and 2, by reference to Section 117C of the 2002 Act, nevertheless it was permissible for the Tribunal to consider through the lens of those two exceptions and ask itself the question of whether there were ‘very compelling circumstances’, applying a balance sheet approach, which rendered the Secretary of State’s decision in breach of the claimant’s right to respect for his family and private life in the UK. As the Tribunal has accepted at §16, he does not meet the requirements of either Exceptions 1 and 2 and therefore the sole issue was whether there were very compelling circumstances.
6. The Tribunal heard the evidence from the claimant once he had been produced from custody, in the context that he had been recalled to prison after the index offence. The Tribunal noted that the claimant could not meet the first exception under Section 117C(a) because he had not been lawfully resident in the UK for most of his life. The Tribunal went on to consider the other elements of Exception 1, including ‘social and cultural integration’. The Tribunal noted the competing arguments. On the one hand, the claimant had received education in the UK, had professional qualifications such as a forklift truck training certificate and had worked, and was remorseful. An OASys assessment of September 2023, (prior to his recall to prison) found that he had a low risk of reoffending over the next two years and a low risk of serious reoffending. Although he posed a medium risk of harm to known adults, (the victim of his stalking), the report had concluded he was a low risk to others.
7. On the other hand, the Secretary of State pointed to the claimant’s recall to prison after he contacting his previous stalking victim in December 2023, in breach of his licence. The Tribunal found as follows:
“21…..The Appellant gave evidence that he called her to apologise before thinking better of it and hanging up. He stated he was only given a warning by probation for this phone call but was subsequently accused by the victim of ringing her buzzer which led to his recall. He denied ringing the victim’s buzzer, stating he was on GPS tag at the time. We found his evidence to be credible in this regard and generally. It was clear and straightforward.”
8. The Tribunal concluded that the claimant was culturally and socially integrated. Its reasons included that the claimant had studied and worked in the UK, spoke good English, continued to study in prison and intended to seek employment upon his release. The OASys report had said that he presented a low risk of reoffending and the Tribunal accepted his explanation for his recall on licence which in its view demonstrated his previous immaturity and a lack of consequential thinking, as opposed to an effort to cause more harm to his victim. The Tribunal noted the Secretary of State’s concern about a lack of offending behavioural work but that was explained because there was a lack of such courses in prison and he was motivated to complete any work provided for him and had genuinely developed some insight into his offending behaviour, especially following recall. The Tribunal concluded that the claimant’s offending was not so serious that it outweighed the other evidence of social and cultural integration.
9. In relation to very significant obstacles to integration in Italy, relevant to Exception 1, the Tribunal considered an absence of family, friends or support in Italy. The claimant spoke some Italian but was not fluent and the Tribunal considered the inability of the UK family to support the claimant in Italy as it was already struggling to make ends meet. The Tribunal considered the Secretary of State’s submissions that the claimant had lived in Italy for 10 years, had gone to school there and understood the language and could either obtain employment in Italy or obtain support. The Tribunal concluded that there were nevertheless very significant obstacles to his integration in Italy. These were because he had not lived in Italy as an adult, having entered the UK shortly before becoming an adult, so his primary focus therefore would have been on his immediate family rather than integrating into wider Italian society, that his knowledge of Italian was limited as Urdu was spoken in the family home and his fluency in Italian would have decreased in the last eight years and would be a barrier on arrival in Italy, for a significant period. He would be returning with no support network, never having lived outside the family home. His family could not provide financial support until he found employment. Given his lack of Italian qualifications and contacts this could be considerable time and there was a substantial risk that he would be rendered homeless.
10. The Tribunal went on to consider family life, noting that Exception 2 could not apply but nevertheless considering family life for Article 8 purposes, applying the well-known authority of Kugathas v SSHD [2003] EWCA Civ 31. The Tribunal considered the claimant’s financial support for his family as well as his genuine and subsisting relationship with two minor siblings aged 7 and 12. In the context of very compelling circumstances, the Tribunal concluded at §33 that whilst he had committed a serious offence, including his having sent his victim photos of his self-harming and telling her he was going to end his life, there was no violence or threat of violence and that his offending had been reduced to 21 months. Of importance in this appeal, as it was the focus of the Secretary of State’s challenge, the Tribunal concluded:
“33….Without wishing to diminish the impact this offence had on the victim, we find it falls at the lower end of the spectrum of such offending.”
11. The Tribunal went on to conclude that following the considerations in respect of private and family life, that there were very compelling circumstances. The claimant was socially and culturally integrated in the UK. The OASys report demonstrated he had some insight into his offending and a good prospect of rehabilitation. He had properly reflected since his recall. There was a lack of a support network in Italy, where the claimant would face very significant challenges integrating into Italian society, exacerbated by an inability of his family to provide him with financial support. He had a family life with that family and the claimant also intended to support them upon his release from prison and that included the young siblings. Taking all of those circumstances into account, the Tribunal concluded that there were very compelling circumstances in this case, which ultimately meant that the deportation order was a disproportionate breach of the claimant’s Article 8 rights.
The Grounds of Appeal and Grant of Permission
12. The Secretary of State appealed against that decision. She argued that the Tribunal had failed to give adequate reasons for finding on material matters and/or had misdirected itself on a material matter in law.
13. First, in relation to the question of rehabilitation, whilst the claimant had been released on licence in December 2023 and then had immediately breached the restraining order, leading to his recall, no evidence had been provided from his probation officer to corroborate his claim that he only did so to apologise via a phone call, see §21. This was contrary to the victim’s own evidence which had been accepted. As a result, the claimant had received a second, subsequent conviction on 29th February 2024 for harassment, breach of a restraining order and a fine. In order words, it was not simply a question of a recall but also a subsequent conviction in February 2024 and indeed at the time of the Tribunal hearing, the claimant remained in prison. Effectively, the Tribunal had gone behind that conviction. Moreover, the Tribunal, in referring to an absence of violence or threats of violence to the victim, had ignored the sentencing remarks which discussed the claimant’s attempt to abduct the victim’s child, with whom he had no connections. To put this down to immaturity downplayed the relevant risk. Moreover there was a material mistake of fact where the Tribunal had referred to offending in a three month period when in fact, as was clear, it may have been three months at the date of the index offence but the claimant had then gone on to reoffend. In that same context and in the absence of evidence of rehabilitation, any positives identified in the OASys Report, completed in September 2023, ignored the subsequent actions in December 2023 for which the claimant was subsequently convicted in 2024 and the Tribunal had failed to consider the impact on integrative links.
14. With regard to very significant obstacles to integration, the Tribunal had placed impermissible emphasis on the claimant’s limited ability to speak Italian. Specifically, the Tribunal had not explained why, having lived there for 10 years during a formative period, it would take a substantial period of time for the claimant’s Italian to be at such a stage where it would present a barrier to integration. There was no explanation for why the claimant’s family could not visit or relocate to Italy and also no explanation for why the claimant could not obtain employment or make use of social assistance. He could claim benefits as a national of Italy and/or seek to access housing, just as many in the UK do the same.
15. The Secretary of State reiterated the absence of any other health issues and said that the findings on obstacles to integration were insufficiently reasoned. In addition, the Secretary of State sought to criticise the claimant’s claim that his UK family were dependent upon income from the claimant and/or were forced to borrow from other family members in circumstances where the father’s bank balance did not suggest that the family were living ‘hand to mouth’, but showed a relatively substantial bank balance.
16. Permission was granted on all grounds.

Discussion and Conclusions
17. I emphasise from the outset that the Tribunal’s decision was well structured and clear in many respects. I also canvassed myself against the danger of focusing on specific pieces of evidence or what is sometimes termed ‘island hopping’ between pieces of evidence cautioned against by the Court of Appeal in Volpi v Volpi [2022] EWCA Civ 464.
18. However, I am satisfied that the Tribunal did err in law, in the following respects. The first is in relation to the finding on social and cultural integration at §21, where the Tribunal accepted as credible the claimant’s evidence that he had not attended the claimant’s address in person to press a buzzer but had merely telephoned her. As elaborated on by Mr Kannangara today, he contends that this was a false allegation and can be disproven by a GPS tag at the time. The practical difficulty with this is that the Tribunal decision does not refer to the further conviction and fine on 29th February 2024, which presumably rejected that explanation.
19. Having taken instructions, Mr Kannangara accepted that the claimant had been fined and this must have been for the second criminal conviction in 2024, not merely a recall for a breach of a licence. There is at the very least, a danger that the Tribunal failed to consider the further conviction or engage with it in its reasons, in preferring the evidence of the claimant over allegations of a victim. In those circumstances, that element of the assessment of social and cultural integration is not safe and cannot stand.
20. I turn to the linked assessment at §23(ii) where the Tribunal accepted the findings of the OASys report that the claimant presents a low risk of reoffending and a low risk of serious harm and accepted the claimant’s explanation for his recall, which was said to demonstrate previous immaturity and his development of some insight. The difficulty with this once again is that this is an assessment of a low risk of reoffending based on an OASys report produced in September 2023 when the claimant then went on to reoffend and was convicted of that reoffending. The assessment of a low risk of reoffending and insight fails to take the further conviction into account. Moreover, and I express no view on the point, the fact that the claimant now appears to express his innocence and contest the basis on which he was convicted, calls into question, but I put it no higher than that, the findings on insight.
21. I then turn to the question of very significant obstacles to integration in Italy. There is a finding at §28(ii) that the claimant’s fluency in Italian was likely to have decreased over a number of years, which cannot be faulted as a matter of common sense, but then a discussion that it would be a barrier on arrival and for a significant period of time, and that the claimant had no support network. I accept the Secretary of State’s challenge to this in two respects. First of all, it was unclear why it would take a significant period of time. In other words, I do not take judicial note of how quickly, where somebody has had Italian language for a 10-year period in a formative stage of their life, it would take them to “get up to speed” with a particular language. Second, and practically, there may be many jobs where people with second and third languages are able to both acquire jobs and to fulfil them. For example, I pause to note in the claimant’s case that he has had work or qualification in some kind of forklift truck driving and apparently in relation to some form of pizza business. I know not what impact that a limitation on language would have on his abilities to work and, for the avoidance of doubt, I do not substitute my view as to what that analysis would entail, but I accept that the Tribunal’s analysis of the impact of a limitation of language, even noting the absence of financial support from his family, means, first, that he could only overcome that after a significant period of time, and second, the barrier that that would place on finding employment.
22. On a third aspect, namely, the Tribunal’s finding of a risk of the claimant being homeless, the Secretary of State points out that there is no explanation of whether the claimant could claim benefits and/or any access to emergency housing in the same way that many in the UK do likewise. I accept that challenge.
23. For the above reasons, I am satisfied that the Tribunal’s reasoning in relation to very significant obstacles to integration in Italy are inadequately reasoned and cannot stand.
24. Finally, I turn to the question of very compelling circumstances. The Tribunal had stated that while it was a very serious offence, the offence fell at the lower end of the spectrum of such offending (§33). As the Judge granting permission pointed out, the sentencing judge’s starting point was 2.5 years, (by reference to the relevant statutory guidelines, it was category B on the culpability matrix and category 1, (the highest) on the ‘level of harm’ matrix). The sentencing guidelines permitted the imposition of a fine or a community order. How then, the Judge granting permission asked themselves, could this be regarded at the lower end of offending? In response to this, Mr Kannangara sought to persuade me that it could be categorised fairly as such because of the reduction in the ultimate sentence from 27 to 21 months by the Court of Appeal. He was unable to develop any argument in relation to the sentencing matrix or guidelines and he also added that it was merely one factor in the proportionality assessment. But the fact that it was merely one factor cuts both ways. In other words, this is a proportionality assessment which is intensely fact-sensitive and the fact that it is not possible to discern why here the Tribunal had regarded the offending, which had included a possible threat or attempt to abduct a child, was at the lower end of the spectrum of offending, means that this analysis is similarly not sufficiently reasoned.
25. For all of those reasons, the Tribunal’s analysis in reaching its conclusions on very compelling circumstances at §34 is not safe and cannot stand.
26. In reaching my decision, I once again reiterate that the Tribunal’s analysis was a model of clarity and structure but there were aspects of it where it simply failed to engage or explain with certain specific facts that I have outlined and which were contested by the Secretary of State. I therefore preserve the findings that there are genuine relationships between the claimant and his parents and his younger siblings, he has lived with them and has returned to live in the family setting since his release from prison. However, the remainder of the findings are not safe and cannot stand.
Notice of Decision
27. The Tribunal’s decision is not safe and cannot stand. However, I preserved the findings that the claimant enjoys a family life for Article 8 purposes with his parents and younger siblings in the UK. For the avoidance of doubt that finding does not extend to the precise nature of financial dependency but reflects the facts of prior and current cohabitation and emotional connection with them.
Disposal
28. I have canvassed with the representatives how the remaking of the appeal should be resolved. For the claimant, Mr Kannangara accepted that there were preserved findings but that there would need to be additional evidence that the claimant would wish to adduce on the areas of continuing dispute and in those circumstances, the claimant would wish to adduce further evidence, although, as he accepted, that was likely in many cases of remaking.
29. For her part, Ms Simbi suggests that the issues, narrow as they already were, before the First-tier Tribunal are even narrower now in light of the preserved finding on the existence of family life. In those circumstances, remaking should be retained in the Upper Tribunal.
30. I bear in mind the Senior President’s Practice Statement at paragraphs 7.2(a) and (b), specifically whether the effect of the error was to deprive either party of a fair hearing or alternatively the nature and extent of any fact-finding as such that it is appropriate to remit matters to the First-tier Tribunal. I bear in mind in that regard the well-known Court of Appeal authority of AEB v SSHD [2022] EWCA Civ 1512. I am satisfied that it is appropriate to retain remaking in the Upper Tribunal but not today in light of the need for updating evidence. The reason for that is that the error was not such as to deprive either party of a fair hearing. In terms of the nature and the scope of any necessary fact-findings it is of course open to the claimant to adduce any updated evidence he wishes in relation to matters relevant to very compelling circumstances, but I accept Ms Simbi’s submissions that the issues themselves are narrow and many of the findings are not in dispute. In the circumstances, I will retain remaking in the Upper Tribunal with the following directions.
Directions on remaking
31. The remaking hearing will be listed to be face to face at the Birmingham Civil Justice Centre at the earliest date with an Urdu interpreter. Whilst not confirming the definitive position Mr Kannangara anticipates between two or three witnesses and in his estimation, that the matter should be resolved in around four hours rather than the full day, although in fairness to Mr Kannangara he was very much thinking on his feet as I asked him, for which I am grateful. Ms Simbi was a little more cautious possibly for a longer period.
32. At this stage I am going to list the case for a four hour hearing unless, having reviewed any additional documentary evidence, the Secretary of State forms the view that a full day hearing is necessary, in which case the Secretary of State is asked, at the earliest opportunity, to notify the Tribunal and ask for the full day hearing. Assuming that the documentation is relatively limited, it will be listed for four hours.
33. I give the other directions that no later than two weeks before the hearing, the claimant is to file via CE-File and serve (service must not be via CE-File but by normal means) a single consolidated electronic bundle which shall be text readable and properly indexed and which shall include the witness statements of all witnesses on which the claimant intends to rely and that such witness statements shall comprise the claimant’s evidence-in-chief without the need for any oral examination-in-chief, with witnesses only tendered to be cross-examined and re-examined. Any oral examination-in-chief will only be permitted exceptionally with a suitable explanation.
34. The parties’ representatives are expected to file and serve skeleton arguments seven working days before the notified hearing date.

J Keith

Judge of the Upper Tribunal
Immigration and Asylum Chamber

2nd January 2025