UI-2024-004507

• Status of case: Unreported
• Hearing date: 19 Feb 2025
• Promulgation date: 5 Mar 2025
• Publication date: 20 Mar 2025
• Last updated on: 20 Mar 2025

The decision

IN THE UPPER TRIBUNAL
IMMIGRATION AND ASYLUM CHAMBER
Case No: UI-2024-004507

First-tier Tribunal No: HU/50711/2024

THE IMMIGRATION ACTS

Decision & Reasons Issued:

On 5th of March 2025

Before

UPPER TRIBUNAL JUDGE BULPITT
DEPUTY UPPER TRIBUNAL JUDGE RAE-REEVES

Between

EMMANUEL STEPHEN JACK
(NO ANONYMITY ORDER MADE)
Appellant
and

SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: Ms S Aziz – Counsel instructed by A Y Sovereign Solicitors Ltd
For the Respondent: Ms McKenzie – Senior Home Office Presenting Officer

Heard at Field House on 19 February 2025


DECISION AND REASONS
Introduction
1. The appellant succeeded in his appeal to the First-tier Tribunal against the decision of the respondent to refuse his human rights claim to remain in the United Kingdom. By a decision dated 6 December 2024, this Tribunal found that the First-tier Tribunal had erred in law such that its decision fell to be set aside, subject to the preserved findings referred to below. The error of law decision appears at the end of this decision. Having set aside the decision of the First-tier Tribunal, the matter was retained in the Upper Tribunal for a new decision to be made on the appellant’s appeal against the refusal of his human rights claim.
2. In accordance with directions issued in the error of law decision, the appellant served a further bundle of evidence in support of his appeal. On 19 February 2025 we heard evidence from the appellant, his partner, his mother and his aunt. We also heard submissions from Ms McKenzie and Ms Aziz before we reserved our decision. We now provide that decision in respect of the appellant’s appeal against the refusal of his human rights claim, together with our reasons.
Background
3. As recorded at [3-6] of the error of law decision, the background of the appeal is as follows:

The appellant is a citizen of Nigeria and is 35 years old. He came to the United Kingdom with his parents as a ten year old in 1997 and was granted indefinite leave to remain. Between 25 July 2011 and 8 May 2012 he committed 11 offences of possessing criminal property and one offence of possessing a credit card number for use in fraud. The circumstances of those offences involved a second person defrauding victims in the United Kingdom and United States of America of a total of almost £200,000 in a “romance fraud” which involved the appellant’s co-offender gaining the confidence of the victims and convincing them to transfer money into the appellant’s bank account which the appellant would then transfer on to the co-offender. The appellant was first arrested in April 2012 but it was not until 3 March 2014 that he was sentenced for those offences to three years imprisonment. The sentencing Judge referred to the appellant knowing from the outset that what he was doing was dishonest, and sentenced him to serve three years imprisonment having reduced the sentence from the five years’ imprisonment the seriousness of the offence warranted to reflect the appellant’s personal circumstances and early guilty plea.
Between his arrest and conviction for those offences, on 12 November 2012 the appellant applied for British citizenship. As part of that application he was asked if he had engaged in activities which might indicate he may not be considered a person of good character, to which he replied “no.” On this basis he was granted citizenship on 14 March 2013. The respondent reviewed that decision after the appellant was sentenced to imprisonment and on 7 February 2018 the respondent took the decision to deprive the appellant of his British citizenship. An appeal against that decision was later dismissed by First-tier Tribunal Judge I Ross on 25 March 2019. The respondent then took the decision on 9 November 2022 that because he is a foreign criminal, the appellant’s deportation is conducive to the public good. She therefore notified the appellant that she had decided to make a deportation order and invited him to inform her of any reason why he should not be deported (a “stage 1 deportation decision”).
In response to that stage 1 deportation decision the appellant raised a human rights claim, arguing that his removal from the United Kingdom would breach his Article 8 Convention right to respect for his private and family life. The appellant explained in that claim that he married his British partner EB on 31 September 2018, that together the couple have a British daughter, AB born on 15 December 2018, and a British son CD born on 31 October 2023 and that he is also the step father to EB’s 16 year old daughter CW. The appellant argued that his deportation would have an unduly harsh effect on his partner and children and amount to a disproportionate interference with the private life he had established in the United Kingdom.
The respondent refused the appellant’s human rights claim on 3 January 2024 and issued a deportation order. The appellant then appealed against the refusal of his human rights claim to the First-tier Tribunal.
The issues in this appeal
4. The legal framework is set out at [11] – [16] of the error of law decision. The appellant is a foreign criminal as defined in the Nationality Immigration and Asylum Act 2002 (the “2002 Act”) and as such section 117C of the 2002 Act applies. That section sets out two Exceptions to the presumption that it is in the public interest to deport foreign criminals – Exception 1 (in s117C(4)) and Exception 2 (in s117C(5)).
5. In the error of law decision, the Judge’s factual findings relating to the three limbs of Exception 1 namely that (a) the appellant has been lawfully resident in the United Kingdom for most of his life; (b) the appellant is socially and culturally integrated in the United Kingdom; (c) the appellant would not face very significant obstacles to integration in Nigeria were preserved. As a consequence of these findings Exception 1 does not apply to the appellant.
6. The error of law decision identified at [30] that the remaining issues it will be necessary to determine in order to remake a decision in respect of the appellant’s appeal are:
A. Whether Exception 2 applies to the appellant and if not
B. Whether in all the circumstances there are very compelling circumstances which mean that on a full proportionality assessment, the article 8 rights of the appellant and his family outweigh the strong public interest in his deportation as a foreign criminal.
The approach to Exception 2
7. As set out in s117C(5) the 2002 Act:
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.
We indicated the approach that is to be taken when considering Exception 2 (the “unduly harsh test”) in the error of law decision, and now set that out again in full.
8. At [17] of HA (Iraq) v Secretary of State for the Home Department [2022] UKSC 22, the Supreme Court held that section 117C(5) of the 2002 Act should be interpreted in line with paragraph 399 of the Immigration Rules which states that the unduly harsh test is to be considered on the basis that the child or partner (1) goes to live in the country to which the person is to be deported (the “go” scenario) and (2) remains in the UK without the person who is to be deported (the “stay” scenario) so that both scenarios are addressed. The Supreme Court stated that “This means that the unduly harsh test is only satisfied if the answer in relation to both scenarios is that the effect would be unduly harsh”. In the error of law decision we determined that the Judge erred because he had failed to consider the “stay” scenario.
9. At [41] and [44] of HA (Iraq) v Secretary of State for the Home Department the Supreme Court gave the following guidance about the appropriate way to interpret and apply the “unduly harsh 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.
Findings of Fact
10. Before considering the “stay” and “go” scenarios we set out our findings of fact. We state at the outset that we have been hampered by not being provided with comprehensive medical, school or social worker reports about the appellant and his family. As such we have assessed the medical situation from the limited records and letters provided, as well as the witness evidence. We have attributed particular weight to records and reports that have been prepared for purposes other than these proceedings e.g. the contemporaneous medical assessments.
11. We find, based on the medical evidence which is consistent with the oral evidence of both the appellant and his wife, that the appellant's wife EB and their two children AB and CD suffer from a range of medical conditions.
12. The appellant’s daughter AB suffers from amblyopia which means that she has seriously impaired vision in one eye. At minus 9, EB describes it as nearly blind. As a result, AB is under the care of a consultant who sees her every 8-10 weeks. The consultant recommends that she wears an eye patch over her better eye for three hours per day in the hope of strengthening her poor eye. This results in an intensive regime every evening whereby one or both parents try to get AB to wear the patch for the required time. Because of her very limited vision AB needs help with everything she does whilst wearing that patch. We accept the evidence of the appellant and EB that ensuring that AB receives the care and treatment she needs requires a great deal of time and effort and that it would be very difficult for this process to be facilitated by a lone parent.
13. CD was born prematurely at 30 weeks gestation as a result of EB developing pre-eclampsia (considered further later in this decision). Following his birth he has remained under the care of the Neonatology Department of Guys and St Thomas’ hospital requiring regular multidisciplinary reviews. In October 2024 he underwent surgery to address his undescended left testicle.
14. Considerable efforts were made by EB to provide an up-to-date medical report about CD during the hearing, following his most recent NHS appointment on 6 February 2025. A report of that appointment was eventually adduced and Ms McKenzie was very pragmatic in agreeing to consider such evidence, which we admitted as it was clearly in the interests of justice to do so despite its late arrival. The report lists the concerns presented to the medical team including ‘delayed language and social development’, ‘gets easily frustrated’, possible ringworm and overlapping first and second toes bilaterally. In the development subscale CD is shown to be in the lower percentile for most factors. Under ‘Discussion and Plan’ he is referred to speech and language therapy, advised to attend chatter time sessions and a health visitor review is planned in July/August 2025. CD’s overlapping toes will be monitored and referred to podiatry if they persist, he will attend the GP for the rash and is referred to the community paediatric team for review of his development. In addition to this most recent report, numerous NHS letters relating to CD have been provided, showing regular visits to the hospital for appointments and reviews including the surgery that took place in October 2024.
15. The medical evidence about CD is consistent with the clear oral evidence we heard from the appellant and his wife. On the basis of this evidence we find that due to his prematurity, CD is not meeting his developmental goals and consequently he is under the care of a wide-ranging neonatal NHS team including a consultant, dietician and physiotherapist.. He has difficulties with his speech and his motor skills and is becoming frustrated with his difficulties. As a result he is regularly seen by his NHS team and has recently been referred for speech therapy and may be subject to further intervention for other factors such as podiatry. It is apparent that this high level of medical intervention and supervision requires significant parental involvement. We accept the evidence of the appellant and EB that this responsibility falls primarily on the appellant given EB’s work commitments, noting that this evidence was consistent with the medical reports making frequent reference to CD attending appointments with his father.
16. Turning to EB, both witnesses describe her as suffering from a rare high blood pressure condition for which she is on medication. EB explained that the condition is considered rare because it is unusual to have such problems with her blood pressure at her age. She states that it is due to this condition that she has previously developed pre-eclampsia and all of her pregnancies have been difficult. Whilst she has been pregnant the cause of her condition could not be investigated, but now CD has been born the condition is being fully investigated. She is under the regular care of a consultant who recently took blood tests and found that there was potential damage to her kidney and that she needs to see a cardiologist.
17. EB states that she is shortly going to undertake investigations on her heart including an MRI, Cat scan and echocardiogram. She provided an NHS letter dated 15 February 2025 confirming her appointment for an echocardiogram on 22 February 2025 as well as a letter from Guys and St Thomas’s hospital dated 7 August 2024 confirming her medication for hypertension. Evidence of her last appointment on 12 February 2025 is also provided.
18. EB also relies on GP records to demonstrate the prescription of 40 mg Enalapril to treat the effect of her hypertension.. She states that this is the highest recommended dose. She explained that now her condition is being re-investigated she is being tested on different medications to try to reduce the side effects which she describes as significant. Her evidence is that she gets drowsy, suffers from swelling in hands and feet as well as feeling dizzy and nauseous.
19. EB’s GP records also indicate that she has been prescribed Amitriptyline. In her witness evidence, EB states that this is to help manage her anxiety and depression and that she is also receiving therapy to manage these symptoms. EB states that the Amitriptyline has the side effect of making her drowsy. She explained that she has worked for her employer for seven years and as a result of that history they provide her with reasonable adjustments to deal with her condition. Those adjustments include not expecting her to be on her feet for too long and allowing her to do administration and reception duties. We accept EB’s evidence about her condition and the limitations it places on her is likely to be true. We find that significant investigations into her condition are still on-going and that the effect of the condition and the investigations into its treatment significantly limit EB’s ability to be actively involved in the care of her children.
20. Overall, we found both the appellant and EB’s evidence in relation to the various medical challenges faced by the family to be straightforward and unexaggerated. Their evidence is consistent with the medical records that we have been provided and we found it to be credible. Ms McKenzie did not challenge the fact of these medical conditions but only the possible impact or effects of them which we consider below.
21. EB’s daughter CW is now 17 years old. The appellant’s oral evidence was that CW lives with her father but spends time with the appellant’s family which can be as much as alternating weeks. EB’s evidence is that she was previously in a controlling and coercive relationship with CW's father which resulted in a non-molestation order being taken out against him. As a result, EB said she has no direct contact with CW’s father and the appellant acts as a go-between between them. EB confirmed that there is no possibility that CW’s father would allow CW to live with or even visit the family in Nigeria. EB said that CW would be unable to travel because her father holds her passport and would refuse parental consent. CW has written a letter in which she describes the “huge role” the appellant plays in her life and his importance to the family, stating that the family would fall apart without him. We accept this evidence of the bond between CW and the appellant and the important role the appellant plays in facilitating ongoing contact between CW and her mother. We also accept as entirely plausible, the assertion that CW’s father is extremely opposed to CW moving to or even visiting Nigeria.
Exception 2 - The “Go Scenario”
22. Both the appellant and EB were very clear that if the appeal fails then EB and the children would not leave the UK to join the appellant in Nigeria. We do not find this surprising because we accept that it would be unduly harsh for the family to do so having careful regard to the elevated standard that this entails.
23. We start with the recognition that the go scenario would involve the appellant’s British citizen children leaving the United Kingdom and the rights and privileges that their citizenship entails and moving to a new country in a different continent that they have never visited and with which they are not familiar.
24. We have found that EB, AB and CD are all receiving long term care for acute medical conditions. For each of them that care involves regular review from consultants, detailed ongoing investigations and a significant treatment regime. Moving to Nigeria would significantly disrupt that care, frustrate ongoing investigations and end the consistency of care that they have each been receiving to date. The effect of this disruption and the loss of continuity of care would be harsh for each of them, however in our judgment it is the cumulative effect of the loss of continuity and disruption of care to each of them that makes the effect of the “go scenario” something that goes well beyond bleak or severe and would be unduly harsh.
25. We also note that on the facts as we have found them to be, that the “go scenario” would involve CW being separated from either her mother (if the rest of the family left and she stayed) or her father (if she went to Nigeria with her mother, the appellant and the rest of the family). Both these alternatives would be detrimental to CW given the general presumption that it is in a child’s best interests to maintain a relationship with both parents.
26. Ms McKenzie relies on the Country Information Note Nigeria: Medical treatment and healthcare dated December 2021 (‘CPIN’) to argue that medical assistance would be available to EB AB and CD if they move to Nigeria with the appellant. We accept the evidence in the CPIN and accept that individually medical treatment for EB, AB and CD may be available in Nigeria. However, we consider that even if treatment is available, it is considerably harder to get treatment for all three of them in the same location. Even so, we consider that it would be unduly harsh for EB, AB and CD to each leave their regular consultants and multidisciplinary teams who know them and their conditions well, to test the vagaries of the Nigerian health system. In particular we have found that there are ongoing and serious investigations in relation to CD and even if care for him is available in Nigeria it is unlikely to be the bespoke multidisciplinary attention he currently benefits from. Similarly, in relation to EB, we have accepted that she does suffer from rare hypertension and this has given rise to concerns about her wider health including her kidney and heart. Whilst care for hypertension might be available in Nigeria, the multidisciplinary investigation that is currently taking place is far less likely to be readily available.
27. For these reasons we find that the Go Scenario would result in unduly harsh consequences on the appellants partner and children. Leaving the United Kingdom would result either in a split between the family and CW or her separation from her father. It is however the cumulative effect of EB, AB and CD all losing the benefit of the important, bespoke and multidisciplinary consultant care that they currently receive and the serious medical consequences that may result from the loss of that continuity of care which in our judgment would be unduly harsh.
Exception 2 - The ’Stay Scenario’
28. We turn to the question of whether the effect of the appellant being deported and leaving his family in the UK, would be unduly harsh on EB, AB or CD, which is the question we found the Judge failed to ask. We remind ourselves again of the high threshold that the unduly harsh test involves.
29. There is no dispute that the appellant and EB have been in a serious relationship for more than eight years and have been married for more than six years. Unlike many deportation cases they have been together throughout that time as the appellant had served his sentence of imprisonment before they met. The appellant and his wife have given a total of 8 witness statements and provided lengthy and detailed oral evidence before us today. We found their evidence to be credible based on its consistency. We accept on the basis of this evidence that the appellant and EB have a very close relationship which was established before the appellant was subject to any deportation decision. We found EB’s evidence of the support that the appellant has been to her following her separation from her previous partner and about the role the appellant plays in facilitating CW’s on-going relationship with that former partner to be particularly powerful.
30. Similarly, we find the appellant’s relationship with AB and CD to be especially close and that the appellant is a loving and very hands-on father who plays a key role in their upbringing. We find it significant that, because of the delay between the appellant being sentenced in March 2014 and the decision under challenge which was not made until almost a decade later, the appellant has been at home and present throughout the lives of his two young children. Not only has he been at home throughout their lives, but we accept the evidence of the appellant and EB that as a result of the fact EB has been working as well as suffering from her own medical problems, the appellant has been the primary and constant carer for AB and CD throughout their lives. The medical evidence further demonstrates the appellant’s deep involvement in the care of AB and CD and we accept the witnesses repeated evidence of the fact that the medical challenges the family face have led to them becoming a particularly close-knit family.
31. The fact that both children require ongoing medical care additionally impacts on the consequences the appellant’s deportation would have on them. We find that their need for ongoing medical care presents difficulties both for practical reasons and emotional reasons. In terms of practicalities, we accept the appellant and EB’s evidence that the appellant takes a lead with the children's healthcare due to his wife's work and her own medical problems. This is borne out by references in the medical records to the appellant taking them to appointments such as the most recent report in February 2025. We find that the appellant helps both children with their medical needs and therapies and his absence would potentially have a deleterious effect on their health because of the limitations that EB may face in fulfilling such practical tasks. We find that her own medical condition and some of the symptoms EB suffers from would limit her ability to provide the required level of care; for example when she is feeling dizzy, nauseous or needs to rest due to her condition or the effect of her medications.
32. Based on the consistent and credible witness statements and oral evidence, we accept that the appellant provides considerable support to the children aside from the medical issues. He describes how he looks after the children from when they wake up to when they go to bed including school drop offs and pickups. We accept that he takes them to their other activities including swimming, drama and music lessons for AB and baby sensory classes for CD. The appellant confirmed that he looks after CD when his wife is working, and she often works unsocial hours such as evenings. As noted above we have found that the appellant helps his children with their therapies and medical needs including taking them to appointments.
33. We also accept the evidence of the appellant and EB and also the letter written by CW herself, that the appellant has a very close relationship with CW. Again the chronology of decision making in his case, means that the appellant has been a constant presence in CW’s life from when she was eight years old and he began his relationship with her mother. We accept EB’s evidence that she was in a coercive relationship with CW’s father resulting in a non-molestation order and that family mediation has not succeeded in the past. Based on this history, we find it plausible that the appellant has taken the role of go-between specifically in relation to CW's contact time with the appellant’s family. We consider that his absence as the go-between would result in more friction and this would have a deleterious effect on CW and may even mean that her contact with her mother is diminished or curtailed.
34. We also heard evidence from the appellant's mother, Christiana Jack and from the appellant’s aunt Eugenia Lolamari about the appellant’s involvement with the family, including the evidence of the appellant’s mother about how surprised she was to see the appellant being such a ‘hands-on dad’. Further evidence of the exceptionally close bonds in the family comes from the family’s parish priest who suggests deportation would have a deleterious effect on family life and would be disastrous. He states that deportation would tear apart a loving family.
35. Bringing this all together, we conclude that, given the extremely close relationships that, in these particular circumstances the appellant shares with EB, AB, CD and CW, the appellant’s separation from the family as a result of deportation would have a very great emotional and psychological impact on them which goes far beyond the impact that might be experienced where there is not such a close and unbroken shared history. We find that the strength and depth of the appellant’s relationships with his wife and children and the close involvement he has had in their care over a prolonged period mean it is highly likely that the young children in particular would suffer an emotional, psychological and practical impact as a result of the appellant’s removal that is unduly harsh.
36. Against this, Ms McKenzie submits that in the appellant’s absence the family would benefit from an abundance of support from the wider family including the appellant’s grandmother. She submits that this would minimise the effects of separation. She also relies on the fact that the family would have the benefit of social welfare and NHS support. We do not accept this submission addresses the extremely severe impact that the loss of their father will have on AB and CD or the exceptionally bleak impact that the loss of her husband will have on EB given her medical condition.
37. In any event, the only available family support appears to us to come from the appellant's mother, aunt and grandmother. We heard from the appellant’s mother and aunt who both confirmed that they could not provide anything other than limited support because they both have very full lives including working and caring commitments. We are also mindful of EB’s evidence that her grandmother is in her 80s and has medical issues and so she does not regularly look after the children, other than in situations such as on the day of the hearing when no other care is available. The fact that EB’s grandmother is being called on to help appears to us to demonstrate the limited support that the family do have. We do not accept that there is an abundance of support available and consider that in the appellant's absence the burden would fall on EB, who given her hypertension, anxiety and depression would be ill-equipped to deal with all that would be required.
38. Additionally, we consider the financial impact of deportation on the family and the likelihood of EB, AB and CD visiting the appellant in Nigeria. We accept the evidence of the appellant and EB that if the appellant were deported, it is likely EB would be likely to have to give up work or significantly reduce her hours in order to care for the children. We factor this into our assessment, although we acknowledge that there is always a financial impact of separation or removal (and as such on its own this would not necessary be unduly harsh). We also recognise that welfare support is available. It is not submitted that the appellant would have access to funds in Nigeria other than as the result of working. We find that the appellant would be able to work in Nigeria given his good level of education and apparent skills, although we accept that the prospects of working in Nigeria may be limited by the economy there and the fact that he has a criminal record. On this basis, and also having regard to the imbalance in the cost of living in the two countries, we find it unlikely that the appellant would be able to financially support his family from Nigeria.
39. We accept the evidence of the appellant and EB that there would be serious practical obstacles to the family visiting the appellant in Nigeria including the need to visit during school holidays, the cost associated with visiting, particularly during peak times, the difficulty of the appellant’s wife having time to visit and the various healthcare appointments that EB, AB and CD have to keep. We note that EB would either have very limited leave if she continues to work or alternatively would have a much reduced income if she did not do so. Either way, we find that there would be distinct difficulties in the family making personal visits to the appellant in Nigeria which would materially impact on the quality and sustainability of family life.
40. Weighing all these factors and having due regard for the public interest in the deportation of foreign criminals and consequently the elevated threshold that the unduly harsh test establishes, we are nonetheless satisfied that the effect of the deportation of the appellant would be unduly harsh on EB, AB and CD. In summary and as indicated already, we consider that the effect of deportation would be especially bleak and severe and unduly harsh given the cumulative effect of the health conditions EB, AB and CD each face, the exceptionally close relationship that exists between the appellant and EB, AB and CD as a result of him being the primary and constant carer of the children throughout their lives to date, the limited scope for visiting the appellant and the financial effect on deportation on the family.
Conclusions
41. The effect of the appellant’s deportation would be unduly harsh on his British partner and two British children and Exception 2 to deportation therefore applies to the appellant.
42. As we have found the Exception to apply the full proportionality assessment indicated in issue B set out at [6] above is not required. As recognised by parliament, the public interest does not require deportation in these circumstances. The respondent’s decision to refuse the appellant’s human rights claim is therefore a disproportionate interference with his private and family life and unlawful.

Notice of Decision
The appellant’s human rights appeal is ALLOWED.


V Rae-Reeves

Deputy Judge of the Upper Tribunal
Immigration and Asylum Chamber

27/02/2025




IN THE UPPER TRIBUNAL
IMMIGRATION AND ASYLUM CHAMBER
Case No: UI-2024-004507

First-tier Tribunal No: HU/50711/2024

THE IMMIGRATION ACTS

Decision & Reasons Issued:

…………………………………

Before

UPPER TRIBUNAL JUDGE BULPITT
and
DEPUTY UPPER TRIBUNAL JUDGE SWANEY

Between

Secretary of State for the Home Department
Applicant
and

Emmanuel Stephen Jack
(NO ANONYMITY DIRECTION MADE)
Respondent

Representation:
For the Appellant: Ms H Gilmour – Senior Home Office Presenting Officer
For the Respondent: Ms S Aziz – Counsel instructed by A Y Sovereign Solicitors Ltd

Heard at Field House on 4 December 2024


DECISION AND REASONS

1. This is the Secretary of State for the Home Department’s appeal against the decision of First-tier Tribunal Judge S T Fox (the Judge) dated 12 August 2024. In that decision the Judge allowed Mr Jack’s appeal against the decision to refuse his human rights claim and issue a deportation order against him. To avoid confusion, although it is the Secretary of State who brings this appeal, we shall refer to the parties as they were in the First-tier Tribunal where Mr Jack was the appellant and the Secretary of State the respondent.
2. Having heard submissions from Ms Gilmour and from Ms Aziz we announced that we would be allowing the respondent’s appeal, setting aside the Judge’s decision and relisting the matter in the Upper Tribunal for a new decision to be made by one or both of us. We now provide, as indicated at the hearing, written reasons for those decisions.
Factual Background
3. The appellant is a citizen of Nigeria and is 35 years old. He came to the United Kingdom with his parents as a ten year old in 1997 and was granted indefinite leave to remain. Between 25 July 2011 and 8 May 2012 he committed 11 offences of possessing criminal property and one offence of possessing a credit card number for use in fraud. The circumstances of those offences involved a second person defrauding victims in the United Kingdom and United States of America of a total of almost £200,000 in a “romance fraud” which involved the appellant’s co-offender gaining the confidence of the victims and convincing them to transfer money into the appellant’s bank account which the appellant would then transfer on to the co-offender. The appellant was first arrested in April 2012 but it was not until 3 March 2014 that he was sentenced for those offences to three years imprisonment. The sentencing Judge referred to the appellant knowing from the outset that what he was doing was dishonest, and sentenced him to serve three years imprisonment having reduced the sentence from the five years imprisonment the seriousness of the offence warranted to reflect the appellant’s personal circumstances and early guilty plea.
4. Between his arrest and conviction for those offences, on 12 November 2012 the appellant applied for British citizenship. As part of that application he was asked if he had engaged in activities which might indicate he may not be considered a person of good character, to which he replied “no.” On this basis he was granted citizenship on 14 March 2013. The respondent reviewed that decision after the appellant was sentenced to imprisonment and on 7 February 2018 the respondent took the decision to deprive the appellant of his British citizenship. An appeal against that decision was later dismissed by First-tier Tribunal Judge I Ross on 25 March 2019. The respondent then took the decision on 9 November 2022 that because he is a foreign criminal, the appellant’s deportation is conducive to the public good. She therefore notified the appellant that she had decided to make a deportation order and invited him to inform her of any reason why he should not be deported (a “stage 1 deportation decision”).
5. In response to that stage 1 deportation decision the appellant raised a human rights claim, arguing that his removal from the United Kingdom would breach his Article 8 Convention right to respect for his private and family life. The appellant explained in that claim that he married his British partner EB on 31 September 2018, that together the couple have a British daughter, AB born on 15 December 2018, and a British son CD born on 31 October 2023 and that he is also the step father to EB’s 16 year old daughter CW. The appellant argued that his deportation would have an unduly harsh effect on his partner and children and amount to a disproportionate interference with the private life he had established in the United Kingdom.
6. The respondent refused the appellant’s human rights claim on 3 January 2024 and issued a deportation order. The appellant then appealed against the refusal of his human rights claim to the First-tier Tribunal.
The Judge’s decision
7. The appellant’s appeal was heard by the Judge on 12 July 2024. Having heard oral evidence from the appellant and EB and considered bundles of documentary evidence adduced by the appellant and the respondent, the Judge allowed the appellant’s appeal. When doing so the Judge made the following key findings:
a) That the appellant is a foreign criminal as defined in the Nationality Immigration and Asylum Act 2002 [15].
b) That the appellant was resident in the United Kingdom from 1997 – 2007 and after studying at University in Nigeria for three years, from 2010 until the hearing date. He had therefore been lawfully resident in the United Kingdom for most of his life [26]
c) That given his length of lawful residence and the relationships he has formed in the country the appellant is socially and culturally integrated in the United Kingdom [23], [27].
d) That having spent the first ten years of his life in Nigeria and returned there to complete his undergraduate studies the appellant would have no difficulty returning to Nigeria, where he would not face insurmountable obstacles to his re-integration or suffer consequences that could be described as unduly harsh [28].
e) That the effect of the appellant’s deportation would be unduly harsh on his partner, children and step-child [27], [29], [30], [31], [33]
f) That Exceptions 1 and 2 to deportation set out in section 117C of the Nationality Immigration and Asylum Act 2002 (the 2002 Act), apply to the appellant and therefore the public interest does not require his deportation.
8. Accordingly the Judge allowed the appellant’s appeal. The respondent was granted permission to appeal against the Judge’s decision by First-tier Tribunal Judge Curtis on 26 September 2024 on two grounds. The first ground involved an assertion that the Judge erred when concluding that Exception 1 to deportation applied to the appellant. The second ground involved an assertion that the Judge erred when concluding that Exception 2 applied to the appellant. As well as granting permission on both grounds, Judge Curtis additionally commented that the Judge appeared to mis-state the relevant burden and standard of proof at [8] of his decision.
The parties’ submissions
9. Relying on the grounds of appeal, Ms Gilmour argued that the Judge erred in respect of Exception 1 because (a) he gave inadequate reasons for finding that the appellant is socially and culturally integrated in the United Kingdom and (b) because his conclusion that Exception 1 applied to the appellant was contradictory to his earlier finding that the appellant would not face very significant obstacles to his integration in Nigeria. Ms Gilmour went on to submit that the Judge erred in respect of Exception 2 because (a) he failed to apply the guidance of the Supreme Court in HA (Iraq) v SSHD [2022] UKSC 22 about the meaning of the “unduly harsh test” in Exception 2 and (b) failed to consider whether deportation would be unduly harsh on the appellant’s partner and children in the “stay scenario” where the appellant is deported to Nigeria and they stay in the United Kingdom.
10. Although no rule 24 response was served in response to the grant of permission to appeal, Ms Aziz relied on a skeleton argument she drafted on 1 December 2024 and opposed the respondent’s appeal. Ms Aziz argued that the Judge did not err when concluding that the appellant was socially and culturally integrated in the United Kingdom and that there was no contradiction in the Judge’s conclusion that the appellant met the requirements of Exception 1. Ms Aziz additionally submitted that the conclusion the appellant’s deportation would be unduly harsh on his partner and children was one reasonably open to the Judge on the evidence submitted and was adequately explained. Despite what is said at [8] of the decision Ms Aziz submitted that it was obvious the Judge applied the balance of probabilities when assessing the evidence and that there was no error of law in the Judge’s decision.

The Legal Framework
11. Part 5A of the 2002 Act (sections 117A – D) applies where, as here, a Tribunal is required to determine whether a decision made under the Immigration Acts (such as a decision to deport a foreign criminal) would breach a person’s right to respect for private and family life under article 8 ECHR. In such a case “the public interest question” is defined as being whether an interference with a person’s right to respect for private and family life is justified under article 8(2) ECHR: see section 117A(3). When considering that question, a court or tribunal “must (in particular) have regard” in “all cases” to the considerations in section 117B, and in “cases concerning the deportation of foreign criminals” to the considerations in section 117C: section 117A(2).
12. Section 117B of the 2002 Act is of limited relevance in this case. It provides that the maintenance of effective immigration controls is in the public interest (117B(1)); that it is in the public interest and in particular in the interests of the economic well-being of the United Kingdom that persons seeking to enter or remain in the United Kingdom are “able to speak English” (117B(2)) and are “financially independent” (117B(3)); and that little weight should be given to a private life, or a relationship formed with a qualifying partner, that is established by a person at a time when the person is in the UK “unlawfully” (117B(4)) or to a private life established by a person when the person’s immigration status is “precarious” (117B(5)).
13. Section 117C of the 2002 Act is highly relevant and so is set out in full below:
S117C Article 8: additional considerations in cases involving foreign criminals
(1) The deportation of foreign criminals is in the public interest.
(2) The more serious the offence committed by a foreign criminal, the greater is the public interest in deportation of the criminal.
(3) In the case of a foreign criminal (“C”) who has not been sentenced to a period of imprisonment of four years or more, the public interest requires C's deportation unless Exception 1 or Exception 2 applies.
(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.
(6)In the case of a foreign criminal who has been sentenced to a period of imprisonment of at least four years, the public interest requires deportation unless there are very compelling circumstances, over and above those described in Exceptions 1 and 2.
(7)The considerations in subsections (1) to (6) are to be taken into account where a court or tribunal is considering a decision to deport a foreign criminal only to the extent that the reason for the decision was the offence or offences for which the criminal has been convicted.
14. At [47] of HA (Iraq) v SSHD the Supreme Court explained the operation of section 117C of the 2002 Act, stating (by reference to the judgment of Underhill LJ when the case was in the Court of Appeal):
“(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’.”
Section 117C(5) the “unduly harsh test”
15. At [17] of HA (Iraq) v SSHD the Supreme Court held that, section 117C(5) of the 2002 Act, should be interpreted in line with paragraph 399 of the Immigration Rules which states that the unduly harsh test is to be considered on the basis that the child or partner (1) goes to live in the country to which the person is to be deported (the “go” scenario) and (2) remains in the UK without the person who is to be deported (the “stay” scenario) so that both scenarios are addressed. “This means that the unduly harsh test is only satisfied if the answer in relation to both scenarios is that the effect would be unduly harsh”.
16. At [41] and [44] of HA (Iraq) v SSHD the Supreme Court gave the following guidance about the appropriate way to interpret and apply the “unduly harsh 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.
Analysis
The Judge’s error applying Exception 1
17. The Judge’s conclusion at [37] that Exception 1 applies to the appellant unquestionably involves an error of law. Section 117(4) unambiguously requires that for Exception 1 to apply each of limbs (a) – (c) must be established. Here, in his analysis of the evidence at [28], the Judge noted that the appellant spent the first ten years of his life in Nigeria, returned to Nigeria to complete his undergraduate studies and “has demonstrated that he would have no difficulty going back to Nigeria.” Having done so the Judge records the emphatic conclusion that the appellant “would have no difficulties, insurmountable obstacles, confront exceptional circumstances or suffer consequences that could be described as unduly harsh, upon re-integrating into Nigerian life.” It is abundantly clear from this that the Judge did not consider that the third limb at section 117C(4)(c) applied to the appellant. .
18. We see no consequence or significance in the judge’s use of the phrase “insurmountable obstacles” rather than “very significant obstacles.” What is very apparent from the Judge’s conclusions is that on the evidence before him the judge was satisfied that the appellant could return to Nigeria without facing any significant obstacles to his integration. For the reasons given by the Judge this was an inevitable conclusion on the evidence presented to him which additionally included the appellant’s high level of education, some of which was obtained in Nigeria (see [22]) and the fact there may be family members available in Nigeria who may be able to assist him to reintegrate (see [31]). On the Judge’s clear findings of fact Exception 1 could not apply to the appellant because he the third limb of the Exception had not been established.
19. We do not however, see any force in the respondent’s criticism of the Judge’s finding at [27] concerning the second limb of Exception 1 namely, that the appellant is socially and culturally integrated in the United Kingdom. Contrary to the respondent’s submissions this conclusion is adequately explained by the Judge when the decision is considered as a whole. The Judge identifies the appellant’s long and entirely lawful residence in the United Kingdom, his relationships with his family, his studies in the United Kingdom and his rehabilitation since serving his sentence of imprisonment all of which adequately explain why the Judge reached the conclusion that the appellant was socially and culturally integrated in the United Kingdom, a finding he was undeniably entitled to reach.
20. In summary therefore, we preserve the Judge’s lawful and adequately explained findings in respect of each of the three limbs Exception 1, namely that:
a) The appellant has been lawfully resident in the United Kingdom for most of his life
b) The appellant is socially and culturally integrated in the United Kingdom
c) The appellant would not face very significant obstacles to integration in Nigeria
21. The only lawful conclusion that can be drawn from these findings is that Exception 1 does not apply to the appellant and that the Judge erred in saying that it did.
The Judge’s error applying the “unduly harsh test”
22. We find that the judge erred in his consideration of Exception 2 in both of the ways asserted by the respondent. 
23. First there is no indication in the Judge’s decision that he has approached the “unduly harsh test” in the way identified at [41] and [44] of HA(Iraq) v SSHD. That would have involved the Judge giving himself an appropriate self-direction and recognising that the “unduly harsh test” involves an elevated standard before undertaking an evaluative judgment as to whether that elevated standard has been met on the facts. While we acknowledge that it was not necessary for the Judge to refer HA(Iraq) v SSHD in terms in his decision, there needed to be some indication in the Judge’s decision that such a self-direction took place and that the Judge recognised the elevated standard that applied. Instead the Judge’s decision contains clear indicators that the Judge has failed to recognise the elevated standard that ‘unduly harsh’ represents and has applied a much lower standard when assessing the impact of the appellant’s deportation on his wife and children.
24. The first such indicator of the Judge applying the wrong standard was identified by Judge Curtis when granting permission to appeal. At [8] the Judge erroneously refers to the burden of proof lying with the respondent. He then says the burden is to show that return of the appellant to Nigeria will be a breach of his human rights, before erroneously making reference to Humanitarian Protection which is not an issue in this appeal. Finally the Judge erroneously referred to the standard of proof being a lower standard of proof – reasonable degree of likelihood. In fact, in the context of this part of the appeal the burden was on the appellant to show on the balance of probabilities that Exception 2 applied to him. The Judge’s reference to a lower standard of proof and a burden on the respondent, indicates a failure to recognise the correct standard he needed to apply and an error of law.
25. The second indication that the Juge was applying the wrong standard when assessing whether the consequences of deportation comes in his assessment of the impact of the appellant’s deportation on the appellant’s family at [31]. Having earlier stated at [27] his conclusion that deportation would be unduly harsh on the appellant’s partner and children, the Judge explains this by indicating at [31] that the appellant’s wife would “find it difficult” to secure employment in Nigeria, the family would “find it difficult” to secure accommodation in Nigeria and that problems with communication would mean the change would be “unreasonably disruptive” for the family. Had the Judge reminded himself of the guidance in HA(Iraq) v SSHD he would have recognised that unduly harsh does not equate with uncomfortable, inconvenient, undesirable or merely difficult.
26. The Judge’s failure to apply the unduly harsh test appropriately in the way required by HA (Iraq) v SSHD when considering whether Exception 2 applies to the appellant therefore amounts to an error of law.
The Judge’s failure to consider the “stay scenario”
27. The Judge’s decision clearly demonstrates that the Judge has considered the “go scenario” identified at [17] of HA(Iraq) v SSHD namely whether going to Nigeria with the appellant would be unduly harsh on his wife and children, albeit for the reasons given above, he did so applying the test incorrectly. The Judge’s decision does not however give any indication that he has considered the “stay scenario” whereby the appellant’s wife and children remain in the United Kingdom while the appellant goes to Nigeria. This is despite the fact the Judge identifies at [29] that this is the most likely consequence of the appellant’s deportation because his wife and children do not want to go to Nigeria. As [17] of HA(Iraq) v SSHD makes clear, the correct application of the statutory scheme for consideration of the appellant’s human rights requires that both the “go scenario” and the “stay scenario” are considered and it will only be where the consequences in both scenarios would be unduly harsh that Exception 2 is made out.
28. The Judge’s failure to consider the stay scenario before concluding that Exception 2 applies to the appellant therefore amounts to an error of law.
Consequences of the Errors
29. The Judge allowed the appellant’s appeal on the basis that both Exceptions 1 and 2 applied to the appellant and did not go on to undertake the full proportionality assessment, weighing the interference with the article 8 rights of the appellant and his family against the public interest in his deportation, that is required if the Exceptions are not met (see [14] above). For the reasons we have given the Judges conclusion that Exceptions 1 and 2 applied to the appellant was flawed. It is clear therefore that the errors made were material to the decision such that the Judge’s decision must be set aside.
30. The presumption is that where a First-tier Judge’s decision is set aside by the Upper Tribunal that Tribunal will proceed to remake the decision (see Immigration and Asylum Chambers of the First-tier Tribunal and Upper Tribunal Practice Direction and Practice Statement). We could discern no good reason to deviate from that process and so determined to re-make the decision concerning this appeal. As already indicated, we preserve the Judge’s factual findings relating to the three limbs of Exception 1 as set out at [20] above. The consequence of this is, as discussed already, Exception 1 does not apply to the appellant. For the reasons given, a lawful assessment of whether Exception 2 applies to the appellant has not yet taken place. Neither has there been a full proportionality assessment of the impact of deportation on the appellant’s article 8 rights. It is necessary therefore for us to determine:
A. Whether Exception 2 applies to the appellant and if not
B. Whether in all the circumstances there are very compelling circumstances which mean that on a full proportionality assessment, the article 8 rights of the appellant and his family outweigh the strong public interest in his deportation as a foreign criminal
31. Ms Aziz asked for an adjournment before consideration of these matters takes place, stating that the appellant would like to adduce further evidence about the health of his children and the strength of his private and family life in the United Kingdom. Although we observed that there are already been a substantial period of time to allow for such evidence to be served, in all the circumstances we concluded that an adjournment to allow further evidence to be served would be consistent with the Tribunal’s overriding objective of a fair and just hearing. We therefore make the directions below.

Notice of Decision
The decision of the First-tier Tribunal Judge involved errors of law and is set aside.
The appeal will be relisted in the Upper Tribunal for re-making.

Directions
Directions Removed

Luke Bulpitt
Upper Tribunal Judge Bulpitt
Judge of the Upper Tribunal
Immigration and Asylum Chamber
6 December 2024