Tribunal decisions

The decision

IN THE UPPER TRIBUNAL
IMMIGRATION AND ASYLUM CHAMBER
Case No: UI-2024-004467

First-tier Tribunal No: HU/64152/2023

THE IMMIGRATION ACTS

Decision & Reasons Issued:
On the 12 March 2025

Before

DEPUTY UPPER TRIBUNAL JUDGE L MURRAY

Between

MOHAMAD KOKOUMA DIALLO
(ANONYMITY ORDER NOT MADE)
Appellant
and

Secretary of State for the Home Department
Respondent

Representation:
For the Appellant: Mr Hussain, Counsel instructed by Henleaze Law
For the Respondent: Miss Young, Senior Home Office Presenting Officer

Heard at Field House on 21 February 2025

DECISION AND REASONS

Introduction
1. The Appellant is a national of Guinea. On 18 June 2020 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 10 August 2020. The Respondent refused that claim on 1 December 2023 concluding that neither of the Exceptions in section 33 of the same Act were met. The Appellant’s appeal against that decision was dismissed by the First-tier Tribunal in a decision promulgated on 1 August 2024.
2. Permission to appeal was granted by the First-tier Tribunal on two out of the three grounds of appeal. In respect of Ground 1 of the grounds of appeal, it was found to be arguable that although the First-tier Tribunal Judge (FTTJ) recited the evidence of the Appellant’s involvement in his children’s lives at length, it was arguably unclear what the findings were and what weight the Judge had afforded to the evidence he did receive. Permission to appeal was not granted on Ground 2 in relation to the weight to be given to rehabilitation in the public interest assessment. Permission was granted on Ground 3 as there were arguably no clear findings in relation the Appellant’s partner joining him in Guinea and no clear balancing exercise of the family circumstances including the impact upon the children, partner and unborn child.
3. The matter came before me to determine whether the First-tier Tribunal (FTT) 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 grounds in respect of which permission to appeal was granted to the Upper Tribunal assert that the FTTJ failed to adequately evaluate the potential impact of deportation on the Appellant’s children. It is argued that the decision lacked a detailed analysis of the children’s best interests. The Judge is said to have focused more the absence of specific examples of the Appellant’s involvement rather than on the broader implications of his deportation. It is submitted that the lack of detailed assessment was contrary to the statutory obligation under section 55 of the Borders, Citizenship and Immigration Act 2009 and was not in accordance with the guidance of the Supreme Court in Zoumbas v Secretary of State for the Home Department [2013] UKSC 74 (Ground 1). Ground 3 argues that the conclusion that it would not be unreasonable to expect the Appellant’s partner to accompany him Guinea if he were deported was flawed in view of her pregnancy and the health of her unborn child.
The hearing
5. Mr Hussain expanded on the grounds of appeal in submissions. He submitted that there was a failure to weigh the impact of the Appellant’s deportation on the children and critical steps were missing in the reasoning. No proper findings were made.
6. Ms Young relied on the Rule 24 response. She submitted that the reasoning was in the decision from paragraph 25 onwards and the FTTJ had regard to the factors in HA (Iraq) v Secretary of State for the Home Department [2022] UKSC 22. She submitted that paragraph 95 could not be read in isolation from paragraphs 23 to 46 of the decision. It was clear that the children lived with the mother and the grounds failed to state what evidence should have been considered. The Judge had assessed the evidence, acknowledged the seriousness of the offending and given adequate reasons why the test of very compelling circumstances was not met. There was no evidence of the psychological or emotional impact on the children.
7. Mr Hussain replied that there were no reasoned conclusions.
8. Both representatives submitted that due to the extent of fact-finding and with regard to the Practice Statement, if I were to find an error of law the appeal should be remitted to the First-tier Tribunal. I reserved my decision.
Conclusions – Error of Law
9. The FTTJ correctly identified at paragraph 19 of the decision that, as the Appellant had been sentenced to 6 years imprisonment, he was therefore a “serious offender” and he could not rely on either exception under section 117C (4) and (5) of Part A of the Nationality, Immigration and Asylum Act 2002 and therefore, in order to succeed in his appeal, had to demonstrate that there were “very compelling circumstances over and above those described in Exceptions 1 and 2.”
10. The FTTJ correctly addressed the relevant circumstances of the case as set out at paragraph 51 of HA (Iraq) v Secretary of State for the Home Department [2022] UKSC 22. At paragraph 95 of the decision, he sets out, as a heading and a relevant circumstance:
“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;”
11. From paragraphs 96 to 100 the FTTJ rehearses the evidence in relation to the ages of the children, their residence with their mother, the fact that the Appellant does not live with them but on the evidence of the Appellant, his partner and his former partner, he is a significant feature of their lives but that it is clear by virtue of his antecedent history that there had been significant portions of the lives of the children when he was not present. He notes that the three witnesses stated that the appellant is a supportive figure in the lives of the children, that the Appellant’s evidence was that he provided food and clothing, but he notes also that no documentary evidence was provided. He incorrectly states that the details of the dates of birth of the younger children were not provided (both their birth certificates and British passports were in the Appellant’s bundle). He concluded (also erroneously) that it was consequently unclear whether the younger children were in primary or secondary school but it seemed likely that their education was in the UK. He noted the evidence of the Appellant’s father and his evidence as to that the Appellant was involved in taking the children to extra-curricular activities but that no detail as to the days and times was provided. He noted that there was no evidence as to the expected due date of the Appellant’s child by his current partner.
12. The Appellant asserts that despite setting out the evidence at length no findings were made in relation to the best interests of his children.
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 Exception 2 and there are no findings as to whether the Appellant had a genuine and subsisting parental relationship with his three children. He also did not make any findings as to whether the impact of the Appellant’s removal would be “unduly harsh” in accordance with KO (Nigeria) & Ors v Secretary of State for the Home Department (Respondent) [2018] UKSC 53 (24 October 2018). The fact that he did not do so, was not, however, an error of law.
16. The Respondent argues that the decision should be read as a whole and that it is clear on consideration of the evidence before the FTTJ, and the findings and observations made by the FTTJ from [21] onwards that the evidence in relation to the children and the involvement in their lives was extremely limited. It is submitted that a number of declarations made by the Appellant were unsupported, including the finding on the absence of evidence as to what would happen to the children if the Appellant was deported [46]. It is argued that it is inconceivable in this context that the FTTJ could have made findings on issues where there was no evidence as to psychological impact, well-being and contact.
17. The Upper Tribunal in the case of TC (PS compliance, “issues-based” reasoning) [2023] UKUT 00164 set out in the Appendix the principles to be derived from the authorities in relation to the giving of reasons by the FTT and their subsequent scrutiny on appeal in the UT. The reasons for a decision must be intelligible and adequate in the sense that they must enable the reader to understand why the matter was decided as it was, and what conclusions were reached on the ‘principal important controversial issues’.
18. I take account that appellate restraint should be exercised when the reasons a FTT gives for its decision are being examined; it should not be assumed too readily that the tribunal misdirected itself just because not every step in its reasoning is fully set out in it. It is also settled that the issues for decision and the basis upon which the FTT reaches its decision on those issues may be set out directly or by inference (Ullah v Secretary of State for the Home Department [2024] EWCA Civ 201. It is also clear from paragraph 52 of HA that the weight to be given to the relevant factors falls within the margin of appreciation of the national authorities.
19. It is clear from the decision of the Supreme Court in Zoumbas v SSHD [2013] UKSC 74 at para 10 that although the best interests of a child can be outweighed by the cumulative effect of other considerations, no other consideration can be treated as inherently more significant. Further, it is important to have a clear idea of a child’s circumstances and of what is in a child’s best interests before one asks oneself whether those interests are outweighed by the force of other considerations.
20. It is clear from both from the FTT decision and from the evidence in both the Appellant and Respondent’s bundles that the FTTJ had evidence before him, which he sets out at some length, as to the Appellant’s involvement in his children’s lives. Reading the decision as a whole, the FTTJ noted at paragraph 23 that in the Appellant’s appeal in 2012 the Tribunal allowed the appeal against deportation on the basis of his relationship with his eldest daughter. Those findings were his starting point. Although the FTTJ states at paragraph 25 that he “reminds himself of section 55, the best interests of the child”, and at paragraphs 25 to 46 sets out the evidence of the involvement of the Appellant in the lives of the children, he makes no findings on their best interests and no findings on the impact of deportation on them. It was incumbent on the FTTJ to make such findings and there was clearly sufficient evidence before him for such findings to be made. There are also no reasoned findings as to the impact of the Appellant’s deportation on his spouse.
21. In the absence of findings on the best interests of the children and the impact of his deportation on his spouse, the FTT’s conclusion at paragraph 106 that “the matters raised do not overcome the public interest in deportation” is inadequately reasoned.
22. I 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. Both representatives were of the view that the due to the nature and extent of fact finding the appeal should be remitted to the First-tier Tribunal if an error were found. I am satisfied that the extent of fact finding which is necessary for the decision in the appeal to be re-made is such that it is appropriate to remit the case 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.

I set the decision aside and the appeal is remitted to the First-tier Tribunal with no findings preserved.

L Murray

Deputy Upper Tribunal Judge
Immigration and Asylum Chamber

11 March 2025