Tribunal decisions

The decision

IN THE UPPER TRIBUNAL
IMMIGRATION AND ASYLUM CHAMBER
Case No: UI-2024-005125

First-tier Tribunal No: HU/20382/2018

THE IMMIGRATION ACTS

Decision & Reasons Issued:

21st May 2025

Before

UPPER TRIBUNAL JUDGE KAMARA

Between

AC
(ANONYMITY ORDER MADE)
Appellant
and

Secretary of State for the Home Department
Respondent

Representation:
For the Appellant: Mr A Eaton, counsel instructed by Duncan Lewis Solicitors
For the Respondent: Mr B Hulme, Senior Home Office Presenting Officer

Heard at Field House on 23 April 2025

Order Regarding Anonymity

Pursuant to rule 14 of the Tribunal Procedure (Upper Tribunal) Rules 2008, the appellant, his partner and children are granted anonymity. No-one shall publish or reveal any information, including the name or address of the appellant, his partner or children, likely to lead members of the public to identify the appellant or any member of his family. Failure to comply with this order could amount to a contempt of court.

DECISION AND REASONS
Introduction
1. This decision should be read in conjunction with the decision promulgated on 10 February 2025 in which the Upper Tribunal found that the First-tier Tribunal had erred in law. The First-tier Tribunal decision was set aside, except for the findings regarding the absence of integration and the absence of very significant obstacles as set out at [44-46].
Anonymity
2. The principle of open justice has been taken into consideration, however an anonymity direction is made to prevent confidential medical information relating to the appellant’s minor children being in the public domain.
Factual Background
3. The factual and procedural background is set out in more detail in the error of law decision. In short, the appellant entered the United Kingdom while a minor in order to join a parent. He was granted leave to remain in 2013, to expire in 2017. He did not apply to extend that leave. The appellant received a conviction for possession with intent to supply Class A drugs in 2018 and was sentenced to 32 months’ imprisonment. That conviction led to a deportation order and the decision under appeal dated 10 October 2018, refusing his human rights claim. The appellant received a further 16 months’ sentence in November 2018 for an offence of conspiracy to supply class A drugs and a 45 month sentence for supplying the same in May 2024. In the meantime, the appellant’s appeal was allowed in February 2022, set aside by the Upper Tribunal, remitted to the First-tier Tribunal and dismissed and set aside again by way of the Upper Tribunal decision of 5 February 2025.
4. In the decision refusing the appellant leave to remain on human rights grounds, the respondent accepted that he had a genuine and subsisting relationship with his British partner but it was not accepted that it would be unduly harsh to expect her to accompany the appellant or to remain in the United Kingdom without him. At the time of this decision, neither of the appellant’s children were born, albeit his partner was expecting their first child. The respondent did not accept that the appellant met the Private Life exception to deportation because he had not been lawfully resident in the United Kingdom for most of his life. Nor was it accepted that he was socially and culturally indicated primarily because of his offending nor that there would be very significant obstacles to his integration in his country of origin. It was not accepted that there were very compelling circumstances which outweighed the public interest in the appellant’s deportation.
The remaking hearing
5. The matter comes before the Upper Tribunal to re-make the decision. A bundle was submitted by the appellant containing, inter alia, the core documents in the appeal, including the appellant’s and respondent’s bundles before the First-tier Tribunal as well as new material relevant to whether the appellant could meet the Family Life Exception to deportation. In addition, a skeleton argument was submitted on behalf of the appellant.
6. The hearing was attended by representatives for both parties as above.
7. Mr Eaton relied on the reference in his skeleton argument to the Joint Presidential Guidance Note No 2 of 2010), and Practice Direction, First Tier and Upper Tribunal, ‘Child, Vulnerable Adult and Sensitive Witnesses’ of 30 October 2008. I indicated that the reasonable adjustments sought, set out at paragraph 18 of the skeleton argument would be put in place to enable the appellant and his partner to give evidence to the best of their ability.
8. The appellant and his partner relied on their respective witness statements and were tendered for cross-examination. Thereafter, both representatives made submissions and the conclusions below reflect those arguments and submissions where necessary.
Legal Framework
9. The appellant argues that his removal from the United Kingdom would be a breach of the United Kingdom's obligations under Article 8 of the European Convention for the Protection of Human Rights and Fundamental Freedoms. The burden of proof is on the appellant to establish an interference with his rights under Article 8(1) ECHR and the standard of proof is a balance of probabilities. The burden is then upon the Secretary of State to establish to the same standard that the interference is justified under Article 8(2) ECHR.
10. Section 32(4) of the UK Borders Act 2007 (the 2007 Act) provides that ‘the deportation of a foreign criminal is conducive to the public good’. Sub-section 5 requires the Secretary of State to make a deportation order in respect of a ‘foreign criminal,’ defined as a person who is not a British citizen and who is convicted in the UK of a criminal offence for which they are sentenced to a period of imprisonment of at least twelve months, unless it would be a breach of a person’s rights under the European Convention on Human Rights (ECHR). Foreign criminals are divided into categories which include: those with sentences of between one and four years imprisonment (medium offenders) and those sentenced to four years or more (serious offenders).
11. Part 5A of the 2002 Act was introduced by the Immigration Act 2014 with effect from 28 July 2014.
12. When considering whether deportation is justified as an interference with a person’s right to respect for private life and family life under article 8(2) of the ECHR, section 117A(2) of the 2002 Act requires decision makers to have regard in all cases to the considerations listed in section 117B, and in cases concerning the deportation of foreign criminals to the considerations listed in section 117C. The relevant parts of section 117C of the 2002 Act, provides:
(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 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.

Exception 2
13. The focus of the appellant’s argument on this basis was whether the effect of his deportation would be unduly harsh on his children, with particular reference to his eldest child referred to in this decision as C1. Mr Hulme did not argue against the proposition that the appellant has a genuine and subsisting relationship with his children and that they are British citizens and therefore each is a ‘qualifying child’ for the purposes of section 117D(1)(a) of the 2002 Act.
14. For completeness, I record that Mr Eaton did not argue on the appellant’s behalf that the effect of his deportation would be unduly harsh on his partner.
15. The relevant legal principles to be applied are set out in HA (Iraq) [2022] UKSC 22 and KO (Nigeria) in which the Supreme Court endorsed what the Upper Tribunal’s decision in MK (section 55 – Tribunal options) [2015] UKUT 223 (IAC), holding [at 46] that 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.’
16. The Supreme Court also endorsed the finding of the Court of Appeal in HA that undue harshness should not be evaluated with reference to the distress that ‘any child’ might face when their parent is deported as to apply such a notional comparator would be contrary to section 55 of the Borders, Citizenship and Immigration Act 2009.
Discussion
17. In reaching this decision, sections 117B and 117C of the 2002 Act, as amended have been taken into consideration as well as all the evidence and submissions, both oral and written. There was no real dispute between the parties as to the facts of the case. Mr Hulme’s questions to the appellant focussed on his involvement with the children since his recent grant of bail to an address other than the family home as well as the availability of support to his partner. Mr Hulme’s questions to P included C1’s medical condition and behavioural issues, P’s personal circumstances the availability of support with the children.
18. There is no need to set out the preserved findings of the First-tier Tribunal because it was not contended on the appellant’s behalf that he could meet the requirements of Exception 1.
19. The sole area of disagreement between the representatives was confined to whether the appellant met the requirements of Exception 2 in section 117C(5) of the 2002 Act, namely whether the effect of the appellant’s deportation would be unduly harsh on his children.
20. For the respondent Mr Hulme submitted that the appellant had failed to demonstrate that the effect of his deportation would be unduly harsh on C1. Points made in support of that submission included that C1 attended school, that the appellant picked C1 up from school three times a week and that there was no reference in the documents to the appellant helping C1 with his homework.
21. With reference to {53} of BL (Jamaica) [2016] EWCA Civ 357, Mr Hulme submitted that there was a lack of engagement with social services by P and that the tribunal was entitled to assume social services will undertake their duties. Mr Hulme focused on the lack of an outcome with respect to the ECHP assessment of C1 or in respect of the family’s overcrowded living arrangements. P’s evidence that the recent absence of seizures since the appellant was placed on bail was said to amount to no more than her personal belief. I was asked to attach little weight on the report of the independent social worker owing to its vintage and that any observations took place remotely and did not involve a visit to the family home. Lastly, Mr Hulme submitted that P was available to the children in the absence of the appellant as she was not working and that there were no witness statements or attendance from family members.
22. Mr. Eaton’s submissions for the appellant focused on the medical evidence relating to C1’s physical health and behavioural issues. C1, who is now aged 6, began suffering from regular seizures in 2024 following which he was referred to Great Ormond Street Hospital where he was diagnosed with epileptic-like seizures. In addition he is undergoing assessment for ADHD and Autism Spectrum Disorder.
23. Mr Eaton drew the Tribunal’s attention to a Speech Language and Communication Assessment Report dating from July 2024 as well as evidence from C1’s school showing that there were considerable behavioural management issues. Issues raised by the school include violence, self-harming and issues with anger. C1 was suspended from school owing to attacking another pupil in October 2024.The appellant’s other child C2 is now aged 19 months.
24. Post-hearing evidence was sent on the appellant’s behalf. That evidence indicated that as of late 2024 an unnamed patient of an unnamed medical service was described as having a GAD-7 score and prescribed antidepressants, beta-blockers, antibiotics and anti-migraine medication.
25. Directions were sent to the parties to ensure that this material had been served on the respondent and to enable the respondent to make any further submissions. Mr Hulme made short submissions on 25 April 2025 which have been taken into consideration. In short, the Tribunal attaches little weight to this document owing to the absence of confirmation that it relates to P. Given that there was no challenge to P’s account of her mental state, this document does not take matters any further and is not material to the outcome of the appeal.
26. Taking C1’s interests as a primary consideration, the Tribunal is satisfied that it is in his best interests for the appellant to remain in the United Kingdom to enable his relationship with both children to continue and, in particular, for the appellant to provide care and support to C1. While the harm envisaged which C1 will suffer by the appellant’s deportation includes emotional harm, as the Court of Appeal explained in MI (Pakistan) [2021] EWCA Civ 1711 at [159] this is as significant as other forms of harm. At [49] the Court of Appeal rejected the proposition that psychological injury was required for the unduly harsh test to be made out.
27. The appellant can properly be considered a medium offender owing to the fact that he was sentenced to between twelve months and less than four years imprisonment following each of his convictions. The Tribunal reminds itself of the statutory provisions which state that the deportation of foreign criminals is in the public interest and the more serious the offence committed, the greater the public interest in deportation. In this case there is a significant public interest in deporting the appellant from the United Kingdom.
28. Mr Hulme rightly did not submit that it would not be unduly harsh for C1, as a British citizen child with additional needs, to accompany the appellant to Jamaica. The focus was on the stay scenario, that is whether it would be unduly harsh for C1 to remain in the United Kingdom were the appellant to be removed to Jamaica.
29. The concluding remarks of the forensic social work report of Peter Horrocks which was prepared in 2021 set out the position for the appellant, P and C1 at the time that report was written.
This is a very vulnerable family unit, whereby both parents have mental health difficulties, however they work closely together to support their son. If (the appellant) was removed from the UK and returned to Jamaica, (C1) would be greatly distressed at the loss of one of his primary attachment figures and would suffer harm to his emotional development. The loss of his father would be permanent. The loss of her partner would in all likelihood have a profound negative impact on (P’s)already frail mental health and she would suffer great anxieties about the well-being of (the appellant). All of which would in turn compound the harm to (C1’s) emotional development. Research suggests that (C1) is at risk of suffering significant and long term harm to all aspects of his development under the circumstances.
30. Since the hearing before the First-tier Tribunal the focus of the appeal has changed and evidentially matters have moved on since then which require a fresh consideration of whether the appellant’s removal would be unduly harsh on C1.
31. The evidential developments set out in Mr Eaton’s submissions which are summarised above are of critical important to the assessment of the matter in issue. It is correct that the appellant was separated from C1 when he serving the custodial part of his most recent sentence of imprisonment. Since his release on bail in December 2024 the appellant has maintained a strong bond with both of his children and has played an active and involved role in their upbringing.
32. Due to his medical condition and likely developmental needs C1 requires an additional level of care and attention which is highly relevant to the impact on C1 if the appellant is deported. In those circumstances the appellant will be separated from his child and C1 will be deprived of his care as well as his emotional and practical support. The family life he has re-established since his release from his detention will be brought to an end. In addition to the specific evidence relating to C1’s medical needs and developmental concerns and in the particular circumstances of this case, I attach some, albeit limited, weight to the emotional harm that C1 will be caused, as set out in the Independent Social Work report, if the appellant’s regular contact and care were to come to an end.
33. The Speech Language and Communication Assessment Report raises a number of concerns into C1’s behaviour including that C1 is presenting with ‘significant difficulties’ in attention control and sensory regulation, ‘significant difficulties’ in his ability to process information, engage socially and with the development of his communication skills.
34. Mr Hulme emphasised that C1 would continue to be cared for by his mother, the appellant’s partner (P), in the absence of the appellant, perhaps with support from a close friend who had watched the children when P attended her appointments when the appellant was imprisoned. The unchallenged evidence of P was that she feels overwhelmed by C1’s health issues along with caring for her youngest child. Her evidence was that C1 required constant care owing to the risks of him having a seizure while eating or sleeping. The appellant’s evidence is that he has past experience of epilepsy as his sister suffered from the condition. Indeed there is reference to this in the medical evidence. Other than from the appellant and occasional help from a solitary friend, P has no other real support owing to the objection of her Muslim family to her relationship and pregnancy.
35. P gave compelling oral evidence regarding the inability of her mother to effectively care for C1 even for a short period of time which resulted in him going missing and being later found in the street.
36. P reports suffering from anxiety and depression and in addition has a number of documented physical health conditions including polycystic ovary syndrome, menorrhagia, chronic anaemia, and uterine fibroids. P further reports that C2 has developmental issues which are being reviewed by the local Children’s Centre. While supporting evidence in relation to her own mental health and C2’s issue had not been obtained, I nonetheless could see no reason to reject her evidence as I found P to be a witness of truth owing to her candid and consistent evidence.
37. Regard has been had to the passage from BL (Jamaica) which was relied upon by Mr Hulme. However, BL is not a factual precedent as the Court’s reference to social services support related to the facts of that particular case. There is no rule of law that a tribunal is bound in all cases to address the precise availability and appropriateness of potential social services care. Indeed, in this case P has gone to strenuous efforts to obtain all the professional assistance she can with C1’s needs and had social services support been considered necessary, it is likely that a referral would have been made by one of the many professionals in contact with C1.
38. The evidence of P is that the appellant’s presence has been a stabilising factor which has significantly improved C1’s quality of life. She says that since the appellant has been bailed, there has been a significant decrease in C1’s seizures from two in October and November 2024 and none from December 2024 onwards, which coincides with the appellant’s presence. P explains that the appellant’s calm approach to parenting helps C1 with his emotional regulation and she attributes that to the absence of recent seizures. In addition, P explains that the appellant’s presence provides her with the support she needs to care for the children effectively, owing to her own physical and mental ill-health.
39. Were the appellant to be removed to Jamaica, it is accepted that this would have a deleterious effect on C1 owing to his physical and developmental issues. The presence of P is unlikely to ameliorate any harm given her own multiple debilitating physical conditions and mental state along with the fact that she has to also take care of C2. There is no evidence to suggest that any familial support is available. Taking into consideration all the facts of this case, considered cumulatively, the effect of the appellant’s removal on C1 would be considerably bleak.
40. Giving full and appropriate weight to the public interest in the deportation of foreign criminals it is concluded on the evidence before the Tribunal that the appellant’s deportation and his separation from C1 renders the effects of the appellant’s deportation on C1 unduly harsh. Exception 2 in section 117C(5) of the 2002 Act is therefore made out. It follows that to deport the appellant would be disproportionate and a breach of Article 8 ECHR.
Notice of Decision
The appeal is allowed on human rights grounds.

T Kamara

Judge of the Upper Tribunal
Immigration and Asylum Chamber

1 May 2025

NOTIFICATION OF APPEAL RIGHTS
1. A person seeking permission to appeal against this decision must make a written application to the Upper Tribunal. Any such application must be received by the Upper Tribunal within the appropriate period after this decision was sent to the person making the application. The appropriate period varies, as follows, according to the location of the individual and the way in which the Upper Tribunal’s decision was sent.
2. Where the person who appealed to the First-tier Tribunal is in the United Kingdom at the time that the application for permission to appeal is made, and is not in detention under the Immigration Acts, the appropriate period is 12 working days (10 working days, if the notice of decision is sent electronically).
3. Where the person making the application is in detention under the Immigration Acts, the appropriate period is 7 working days (5 working days, if the notice of decision is sent electronically).
4. Where the person who appealed to the First-tier Tribunal is outside the United Kingdom at the time that the application for permission to appeal is made, the appropriate period is 38 days (10 working days, if the notice of decision is sent electronically).
5. A “working day” means any day except a Saturday or a Sunday, Christmas Day, Good Friday or a bank holiday.
6. The date when the decision is “sent’ is that appearing on the covering letter or covering email