Tribunal decisions

The decision

IN THE UPPER TRIBUNAL
IMMIGRATION AND ASYLUM CHAMBER
Case No: UI-2024-004433

First-tier Tribunal No: HU/01787/2023

THE IMMIGRATION ACTS

Decision & Reasons Issued:

On 19th of June 2025

Before

UPPER TRIBUNAL JUDGE OWENS
DEPUTY UPPER TRIBUNAL JUDGE L MURRAY

Between

SECRETARY OF STATE FOR THE HOME DEPARTMENT
Appellant
And

MC
(ANONYMITY ORDER MADE)
Respondent

Representation:
For the Appellant: In person
For the Respondent: Miss Rushforth, Senior Home Office Presenting Officer

Heard at Field House on 16 May 2025

Order Regarding Anonymity

Pursuant to rule 14 of the Tribunal Procedure (Upper Tribunal) Rules 2008,the appellant and any member of his family is granted anonymity.

No-one shall publish or reveal any information, including the name or address of the appellant, likely to lead members of the public to identify the appellant and any member of his family. Failure to comply with this order could amount to a contempt of court.

DECISION AND REASONS
Introduction
1. The Appellant in this appeal is the Secretary of State and the Respondent is the Appellant before the First-tier Tribunal (FTT) but for ease of reference we refer to the parties as they were before the FTT. The Appellant is a national of Fiji. On 20 October 2021 the Respondent served a deportation order under section 32 (5) of the UK Borders Act 2007. The Appellant made a protection and human rights claim on 29 October 2021. The Respondent refused that claim on 20 July 2023 concluding that neither of the Exceptions in section 33 of the same Act were met. The Appellant’s appeal against that decision was allowed by the First-tier Tribunal in a decision promulgated on 15 August 2024.
2. Permission to appeal was granted by the FTT on all of the grounds of appeal.
3. The matter came before us to determine whether the First-tier Tribunal had erred in law, and if so whether any such error was material such that the decision should be set aside.
Error of Law – Grounds of Appeal
4. The Respondent’s grounds assert that the FTT made no finding that either of the Exceptions set out at s 117 C of the Nationality, Immigration and Asylum Act 2002 (the 2002 Act) were met. It is submitted that the Appellant could not succeed on private life grounds because he had not lived in the UK for more than half his life and a private life claim failed at the first hurdle under Exception 1. Further, the other aspects of Exception 1 were not addressed. In respect of Exception 2 there was no finding that the Appellant’s deportation would result in unduly harsh circumstances for either his partner or child. It is argued that the matters raised by the Judge amounted to a preference on the Appellant and his family’s part that he should remain in the UK but that the FTTJ failed to give adequate weight to the public interest in the Appellant’s deportation which was heavily in favour of deportation in light of his criminality and the fact that the “very compelling circumstances” threshold had to be met.
5. It is contended that it is entirely unclear from the FTT decision why the Appellant would be unable to care for his child in Fiji or, in light of his good health, work experience and training he should require the support of family to provide for himself and his child.
6. It is further submitted that the FTTJ failed to consider that the fact that he has not reoffended is a neutral consideration and the Appellant’s denial of his responsibility for the offence and his propensity to reoffend should have been considered in that light. Any finding on rehabilitation was therefore vitiated by this error.
7. The Respondent also argues that the FTTJ’s finding that the public interest is outweighed fails to have regard to the relevant case law in relation to the very high interest in his deportation where the statutory exceptions have not been met.
The hearing
8. Miss Rushforth expanded on the grounds of appeal and emphasised the FTTJ’s failure to make a finding on whether the Appellant’s removal would be unduly harsh on his partner and child and the misdirection in relation to rehabilitation. The FTTJ had, she submitted, given undue weight to the fact that the Appellant had not reoffended since his release.
9. The Appellant set out why he believed that there were compelling circumstances in his case, relying on the fact that he needed to look after his son when his partner was working away. She would not be able to do her job properly. He said he agreed with the Judge’s decision to allow his appeal.
10. We concluded that there was a material error of law in the decision of the First-tier Tribunal as we found that the Respondent’s grounds of appeal were made out. We briefly summarised our findings with full reasons to follow.
Conclusions – Error of Law
11. The FTTJ correctly identified at paragraph 8 of the decision that the issue for determination in the appeal was whether there were “very compelling circumstances”. The Judge notes that the Appellant is a “serious offender” at paragraph 21 of the decision in view of his sentence of 4 years immediate imprisonment. The FTTJ then correctly directs himself that the Appellant cannot rely on either statutory exception and that even if one or other exception applied there would need to be demonstrated very compelling circumstances over and above those described to outweigh the public interest in deportation.
12. The FTTJ then correctly addresses the relevant considerations in the full proportionality assessment required as set out at paragraph 51 of HA (Iraq) v Secretary of State for the Home Department [2022] UKSC 22.
13. The Court of Appeal in the case of Yalcin v Secretary of State for the Home Department [2024] EWCA Civ 74 held, at paragraph 63 that in the case of a “serious offender” that although:
“…it will “often be sensible” to consider whether the claimant’s case involves an Exception-specific circumstance; and the reason that it gives is that such consideration may encourage a focus on "particularly significant factors" bearing on private or family life and thus provide "a helpful basis" for the application of the test under section 117C (6). None of that is the language of legal obligation. Although the word "necessary" appears in the second sentence, that applies only if the tribunal has chosen to take the course suggested in the first. But I do not in fact think that the answer needs to depend on this kind of detailed verbal analysis. It is important to focus on the substance of the point that Jackson LJ was making – namely, as he says in the second sentence of para. 37 (consistently with paras. 29 and 30) that in an Exception-overlap case subsection (6) requires something more over and above the minimum required to satisfy the Exception in question. It does not follow, and he does not say, that a tribunal is in every case obliged to make an explicit and particularised finding as to how that something more is made up.”
14. Lord Justice Underhill added at paragraph 65 that he could encourage tribunals to follow the course suggested by Jackson LJ in para. 37 of the judgement in NA (Pakistan) v SSHD [2016] EWCA Civ 662 which is likely to help focus the mind on the key considerations but any failure to do so was not necessarily an error of law. The course recommended by Jackson LJ set out at paragraph 37 is:
37. In relation to a serious offender, it will often be sensible first to see whether his case involves circumstances of the kind described in Exceptions 1 and 2, both because the circumstances so described set out particularly significant factors bearing upon respect for private life (Exception 1) and respect for family life (Exception 2) and because that may provide a helpful basis on which an assessment can be made whether there are "very compelling circumstances, over and above those described in Exceptions 1 and 2" as is required under section 117C(6). It will then be necessary to look to see whether any of the factors falling within Exceptions 1 and 2 are of such force, whether by themselves or taken in conjunction with any other relevant factors not covered by the circumstances described in Exceptions 1 and 2, as to satisfy the test in section 117C(6).
15. The FTTJ did not follow that course and did not consider either Exception 1 or 2 and whether the impact of the Appellant’s removal would be “unduly harsh” on the Appellant’s child in accordance with KO (Nigeria) & Ors v Secretary of State for the Home Department (Respondent) [2018] UKSC 53. He also did not make any finding as to whether the Appellant’s removal would be “unduly harsh” on his partner. The fact that he did not do so, was not, however, an error of law.
16. The FTTJ set out the evidence at some length and found at paragraph 51 that without the presence and support of the Appellant, his partner would be placed in the position on her specific facts of having to send her child to Fiji and trying to visit the child as best she could when her finances would allow. Apart from this finding, the FTTJ’s findings in relation to the Appellant’s partner and child are that “they have a strong and mutually supportive relationship and approach to the upbringing of their son” and that they have “an effective family life”. In considering the “seriousness of the difficulties which the spouse is likely to encounter in the country to which the applicant is to be expelled”, he states that the partner was clear in her evidence that she would not be able to leave her career as she was the sole breadwinner and would therefore not be able to return to Fiji. She was the sole financial support for her UK based family consisting of the Appellant and her son as well has her Fiji based family.
17. The FTTJ then considered the child’s best interests from paragraphs 89 to 95 of the decision. He found that the child (aged 3) had never been to Fiji and that the Appellant was a single parent for three to four months at a time when his partner was deployed. He had developed an exceptionally strong bond with the child as a result. He found that if the Appellant were to return to Fiji he had no accommodation, support network and “in the Appellant’s view and experience” would be unlikely to obtain employment notwithstanding the skills and qualifications that he developed in Fiji and in his employment. He found that if the Appellant were deported the mother would send her son to Fiji as she would have no family or support network in the UK to look after the child. If the child were sent to Fiji he would have to reside with his maternal grandmother and relatives in an extremely financially constrained environment where they would be reliant on the partner’s funds. Alternatively, he could live with his father who asserted that he would be likely to be destitute, under threat from his stepfamily due to his offence and with no prospect of obtaining employment. He found that both options for the child would be “stark and would create serious difficulties for the child.” He found that the Appellant would have no solidity, cultural or family ties within Fiji anymore.
18. The Respondent’s case before the FTT as set out in the Refusal letter and Review was that it would not be unduly harsh for the Appellant’s partner to return with him and their child to Fiji or to remain in the United Kingdom when he was deported. The FTTJ notes at paragraph 7 of the decision that the Respondent accepted that the child was a qualifying child for the purposes of s117 of the Nationality, Immigration and Asylum Act 2002 (the 2002 Act). The status of his partner, a Fijian national serving in the armed forces, had not been raised in the Refusal letter or the review. The FTTJ notes at paragraph 25 that his partner would apply for British nationality when she was able.
19. The FTTJ makes no finding on whether the Appellant’s partner is a qualifying partner for the purposes of s117 of the 2002 Act and no finding on whether it would be unduly harsh for her to return to Fiji with him. The Appellant’s partner is a national of Fiji and according to the evidence recorded by the FTT, her family remain in Fiji.
20. Unless an appellant can show that there are very compelling circumstances over and above those described in Exceptions 1 and 2 he/she cannot succeed in demonstrating that the public interest in deportation is outweighed. In NA (Pakistan), Jackson LJ stated at paragraph 30 that that:
“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”.
21. The FTTJ only considered the scenarios of the Appellant returning to Fiji alone and with his child either living with him or, alternatively, with the child’s material grandmother and relatives. In the absence of any consideration by the FTTJ of whether his partner could return to Fiji with him and their child we find that the conclusion at paragraph 100 that “the matters raised do overcome the public interest in deportation” does not explain how he concluded that there were very compelling circumstances over and above the statutory exceptions to deportation, which he had not, in any event expressly considered. We agree therefore that the FTTJ failed to make findings on material matters and failed to give adequate reasons for his conclusions.
22. The Respondent also argues that the FTTJ’s findings on rehabilitation are perverse in view of his continued denial of guilt and that he misdirected himself.
23. In HA (Iraq) v Secretary of State for the Home Department [2002] UKSC 22 the Supreme Court concluded that where the only evidence of rehabilitation is that no further offences have been committed then, in general, that likely is to be of little or no material weight in the proportionality balance, but if there is evidence of positive rehabilitation which reduces the risk of further offending that may have some weight as it could have a bearing on whether deportation necessary to protect the public from further offending [58]. The weight which it will bear will vary from case to case, but it will rarely be of great weight given that the public interest in the deportation of foreign criminals is based not only on the need to protect the public from further offending but also on wider policy considerations of deterrence and public concern. Tribunals are to be cautious about their ability to make findings on the risk of re-offending, and will be usually unable to do so with any confidence based on more than the undertaking of prison courses or mere assertions of reform by the offender or the absence of subsequent offending for what will typically be a relatively short period of time.
24. The FTTJ directed himself in accordance with the guidance in HA (Iraq). However, the conclusion in paragraph 59 that “the Appellant has shown that the public interest in the risk of re-offending and rehabilitation has not been established”, is problematic. Clearly, there is no public interest in a risk of re-offending and presumably, the FTTJ meant that the risk of re-offending had not been established and therefore that this had a bearing on whether deportation was necessary to protect the public from further offending. He appears to suggest that the Respondent has failed to demonstrate that the Appellant will re-offend in view of the matters set out in that paragraph, namely, that the index offence was the sole conviction and that the “probation service are looking upon rehabilitation and the risk of reoffending in a positive light”.
25. We note that this conclusion appears to have been based on an email which appeared to come from a Probation/Offender Manager referring in the assessment of risk posed by the Appellant to “medium risk of harm”. The Respondent’s position in the Supplemental Review was that the provenance of the email had not been demonstrated and, in any event, the Appellant’s continued maintaining of his innocence and failure to complete any sex-offender treatment programmes remained aggravating features. The Respondent noted in the initial Review that there was a lack of evidence regarding rehabilitation and lack of evidence of remorse. The OASys report assessed him as posing “a high risk of serious harm” and recorded that he “denied the index offence”.
26. We agree with the Respondent that the FTTJ failed to have regard to these material considerations in his assessment of the risk of re-offending. We find, in view of the clear guidance in HA (Iraq) and the fact that the Appellant was only released in 2023 and continued at the date of the hearing to contest his conviction, that it was irrational to conclude that the Appellant was rehabilitated and to find that this affected the weight to be attached to the public interest in deportation.
27. The Respondent further submits that in finding that the public interest is outweighed, the FTTJ failed to have regard to relevant case law.
28. When approaching the statutory test of very compelling reasons a tribunal has an obligation to be more than usually clear as to why such a conclusion is justified (OH (Algeria) v The Secretary of State for the Home Department [2019] EWCA Civ 1763 It is clear from the case law that “very” imports a very high threshold and “compelling” means circumstances which have a powerful, irresistible and convincing effect (SSHD v Garzon [2018] EWCA Civ 1225).
29. Although we accept that the FTTJ set out the relevant factors for consideration rehearsed in HA (Iraq) and refers to the public interest in deportation at paragraph 60 of the decision, he does not direct himself in relation to the high threshold to be applied in relation to “very compelling circumstances” test. When reading the decision as a whole we conclude that he fails to provide adequate reasons why this is a “very strong claim indeed” (as Laws LJ expressed it in SS (Nigeria) v SSHD [2013] EWCA Civ 550 and approved in Hesham Ali v SSHD [2016] UKSC 60).
30. We therefore find that the Respondent’s grounds of appeal are made out and that the errors of law are material such that the decision must be set aside.
31. We have considered whether the decision should be re-made in the Upper Tribunal with regard to the decisions of Begum (Remaking or remittal) Bangladesh [2023] UKUT 00046 (IAC) and AEB v Secretary of State for the Home Department [2022] EWCA Civ 1512. We are of the view that the due to the nature and extent of fact finding the appeal should be remitted to the First-tier Tribunal with no findings preserved.

Notice of Decision
The making of the decision of the First-tier Tribunal involved the making of a material error of law.
We set the decision aside and the appeal is remitted to the First-tier Tribunal before a different Judge with no findings preserved.

L Murray

Deputy Upper Tribunal Judge
Immigration and Asylum Chamber

16 June 2025