Tribunal decisions

The decision

IN THE UPPER TRIBUNAL
IMMIGRATION AND ASYLUM
CHAMBER
Case No: UI-2024-005374

First-tier Tribunal No: HU/00583/2024

THE IMMIGRATION ACTS

Decision & Reasons Issued:
On 15 July 2025

Before

UPPER TRIBUNAL JUDGE MANDALIA
and
DEPUTY UPPER TRIBUNAL JUDGE FARRELLY

Between

JAMSHAID YAQOOB
(NO ANONYMITY DIRECTION MADE)
Appellant
and

Secretary of State for the Home Department
Respondent

Representation
For the Appellant: No appearance by or on behalf of the Appellant
For the Respondent: Mr A Mullen, Senior Home Office Presenting Officer

Heard at Edinburgh Tribunal Hearing Centre on 8 July 2025
Decision and Reasons
Introduction
1. The appellant is a national of Pakistan. On 21 March 2024 a decision was made by the Respondent to refuse the appellant’s human rights claim following conviction at Glasgow High Court, of involvement in a serious organised crime under the Criminal Justice and Licensing (Scotland) Act 2010 for which he was sentenced to 3 years’ imprisonment.
2. The respondent concluded the appellant is a “foreign criminal” because he is not a British citizen and was convicted in the UK of an offence for which he received a sentence of at least 12 months imprisonment. Under section 32(5) of the UK Borders Act 2007 (“the 2007 Act”), the respondent must therefore make a deportation order unless one or more of the exceptions set out in section 33 of the 2002 Act applies. Having considered matters relied upon by the appellant the respondent concluded the exceptions do not apply.
3. The appellant’s appeal against that decision was dismissed by First-tier Tribunal (“FtT”) Judge Buchanaan (“the FtT judge”) for reasons set out in a decision promulgated on 29 October 2024. The appellant applied for and was granted permission to appeal to the Upper Tribunal. The decision of the FtT judge was set aside by Upper Tribunal Judge Bruce for reasons set out in her ‘error of law’ decision issued on 22 May 2025. This decision should be read alongside that error of law decision. Upper Tribunal Judge Bruce set aside the findings of the FtT judge on whether it would be unduly harsh for the appellant’s family if he were to be deported. She directed the decision will be remade in the Upper Tribunal and said:
“38. The appeal will proceed on the basis of the matters agreed, and the matters in issue, before the First-tier Tribunal. If any other matters are disputed or agreed, then a written statement to this effect should be filed and served without delay, and in any event no later than 10 working days before the resumed hearing.”
4. It is against that background that the hearing of the appeal was listed before us.
The Hearing Before Us
5. The Tribunal received a letter dated 9 June 2025 from the appellant’s representatives, SKH Solicitors. They refer to the hearing listed for 8 July 2025 and they said they no longer consider themselves instructed in this appeal. They said they have had no contact with their client despite several requests for him to get in touch with their offices. They are without instructions.
6. The Notice of the hearing listed before us was sent to the parties, including by post to the appellant on 5 June 2025. Mr Mullen confirmed the postal address for the appellant held by the respondent is the same address to which the Notice of Hearing was sent. We are satisfied therefore that the appellant is aware of the hearing. He will have been informed of the hearing directly by his representatives but has failed to provide instructions. We have been provided with no explanation for the absence of the appellant and his wife in particular. In the absence of any explanation for the appellant’s failure to attend the hearing or any application to adjourn the hearing, we are satisfied that it is in the interests of justice and in accordance with the overriding objective for us to proceed with the hearing of the appeal in the absence of the appellant. For the avoidance of doubt, we have had regard to the documents set out in the consolidated bundle previously provided by the appellant’s representatives in advance of the ‘error of law’ hearing, comprising of 506 pages.
7. The bundle includes a skeleton argument that was before the FtT, a statement signed by the appellant on 11 June 2024, and statements made by the appellant’s partner and two of his children. None of the witnesses have attended the hearing before us to submit to cross-examination. The respondent has not therefore had the opportunity to test the evidence and that inevitably impacts the weight we can attach to their evidence.
8. The appellant arrived in the UK, unlawfully, in 2007. He met his partner, Nazia Jamshaid (“Nazia”) in 2008. The thrust of the Article 8 claim that we have to consider is the appellant’s relationship with his partner and children. The appellant married Nazia in Glasgow in February 2011. She has two children from a previous relationship who we will refer to as [AA], who is now aged 21, and [SA], who is now aged 18. The appellant and his partner have two children of their own, who we will refer to as [ZJ] (born in May 2014) now aged 11 and [NJ] (born in May 2021) and now aged 4. We have in the papers before us an assessment completed on behalf of the respondent by Lynzi Freemantle, a Social Worker employed by East Renfrewshire Children Services.
9. We pause to note that the witness statement that is said to be signed by [ZJ] does not appear to be a statement in the words of [ZJ], but appears to be a statement prepared by the appellant’s representatives, that has been read to her and signed by [ZJ]. At the end of the statement it is said that the statement was given by [ZJ] in English, to Samina Hussain, a solicitor. However, rather than being a statement made by [ZJ] in her own words, it is a statement in the words of the solicitor. That much is clear when one looks at the similarity of the opening paragraphs of each of the witness statements we have before us and the language used throughout each of the statements.
10. In reaching our decision, we have had regard to all the evidence before us, whether or not it is referred to. The focus of this decision is upon the evidence before us that we consider to be particularly relevant to the findings and conclusions we have reached.
The Legal Framework
11. Section 32 of the UK Borders Act 2007 defines a foreign criminal, as a person not a British citizen who is convicted in the UK of an offence and, inter alia, sentenced to a period of imprisonment of at least 12 months. Section 32(4) of the 2007 Act sets outs out the clear proposition that deportation of a foreign criminal is conducive to the public good. That is a statement of public policy enacted by the legislature, which the courts and tribunals are obliged to respect. Section 32(5) of the 2007 Act requires the Secretary of State to make a deportation order in respect of every foreign criminal, subject to the exceptions set out in section 33. As far as is relevant that is:
“(2)  Exception 1 is where removal of the foreign criminal in pursuance of the deportation order would breach–
(a)  a person's Convention rights, or
(b)  the United Kingdom's obligations under the Refugee Convention.
…
(7) The application of an exception—
(a) does not prevent the making of a deportation order;
(b) results in it being assumed neither that deportation of the person concerned is conducive to the public good nor that it is not conducive to the public good.
but section 32(4) applies despite the application of Exception 1 or 4.".

12. The appellant is a foreign criminal within the meaning of section 32(1). He is not a British citizen and he has been convicted of an offence in the UK and sentenced to a term of imprisonment of at least 12 months. The secretary of state was therefore obliged to make a deportation order under s.32(5). Here, the appellant relies upon the family and private life that he has established in the UK. The appellant claims his removal to Pakistan would be in breach of Article 8 ECHR.
13. Part 5A of the Nationality, Immigration and Asylum Act 2002 informs the decision making. Section 117A in Part 5A provides that, when a court or tribunal is required to determine whether a decision made under the Immigration Acts breaches a person's right to respect for private and family life under Article 8, and, as a result, would be unlawful under section 6 of the HRA 1998, the court, in considering the public interest question, must (in particular) have regard to the considerations listed in section 117B and, additionally, in cases concerning the deportation of foreign criminals, to the considerations listed in section 117C. Section 117C specifically deals with the weight to be attached to the public interest in deporting foreign criminals and provides a structure for conducting the necessary balancing exercise, dependent in part, on the length of sentence imposed.
14. It is uncontroversial that the appellant is a foreign criminal, as defined in s117D(2) of the 2002 Act. By operation of s117C(3), in the case of a foreign criminal who has not been sentence to a period of imprisonment of four years or more, the public interest requires their deportation unless Exceptions 1 or 2 apply. Applying s117C(6) of the 2002 Act, the public interest requires deportation unless there are very compelling circumstances, over and above those described in Exceptions 1 and 2.
15. In HA (Iraq) v Secretary of State for the Home Department [2022] UKSC 22, Lord Hamblen referred to the ‘very compelling circumstances’ test. He cited the judgement of Sales LJ in Rhuppiah v Secretary of State for the Home Department [2016] 1 W.L.R 4203, at [50], that the ‘very compelling circumstances’ test "provides a safety valve, with an appropriately high threshold of application, for those exceptional cases involving foreign criminals in which the private and family life considerations are so strong that it would be disproportionate and in violation of article 8 to remove them”.
16. In Yalcin v Secretary of State for the Home Department [2024] 1 WLR 1626, Lord Justice Underhill explained:
“53. The starting-point is to identify the basic structure of the law in this area. At para. 47 of his judgment in HA (Iraq) Lord Hamblen approved the summary which I gave at para. 29 of my judgment in this Court:
"(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'."
…
57.  NA (Pakistan) thus establishes that the effect of the over-and-above requirement is that, in a case where the "very compelling circumstances" on which a claimant relies under section 117C(6) include an Exception-specified circumstance ("an Exception-overlap case")9 it is necessary that there be something substantially more than the minimum that would be necessary to qualify for the relevant Exception under subsection (4) or (5): as Jackson LJ puts it at para. 29, the article 8 case must be "especially strong". That higher threshold may be reached either because the circumstance in question is present to a degree which is "well beyond" what would be sufficient to establish a "bare case", or – as shown by the phrases which I have italicised in paras. 29 and 30 – because it is complemented by other relevant circumstances, or because of a combination of both. I will refer to those considerations, of whichever kind, as "something more". To take a concrete example, if the Exception-related circumstance is the impact of the claimant's deportation on a child (Exception 2) the something more will have to be either that the undue harshness would be of an elevated degree ("unduly unduly harsh"?) or that it was complemented by another factor or factors – perhaps very long residence in this country (even if Exception 1 is not satisfied) – to a sufficient extent to meet the higher threshold; or, as I have said, a combination of the two.
62. … I agree that it would in principle conduce to transparent decision-making if the tribunal identified with precision in every case what the something more consisted of; but that will not always be straightforward. The proportionality assessment is generally multi-factorial and requires a holistic approach. A tribunal must of course in its reasons identify the factors to which it has given significant weight in reaching its overall conclusion. It is no doubt also desirable that it should indicate the relative importance of those factors, but there are limits to the extent to which that is practically possible: the factors in play are of their nature incommensurable, and calibrating their relative weights will often be an artificial exercise. It would in my view place an unrealistic burden on tribunals for them to have to decide, and specify, in every case whether the something more consists of the Exception-specific circumstance being present to an elevated degree, or of some other circumstance or circumstances, or a combination of the two. There may be cases where for some reason peculiar to the case this degree of specificity is necessary; but I do not believe that there is any universal rule. We should not make decision-making in this area more complicated than it regrettably already is.”
Decision
17. The appellant has appealed the respondent’s decision to refuse his human rights claim under s.82 of the Nationality, Immigration and Asylum Act 2002 on the ground that the decision is unlawful under s.6 of the Human Rights Act 1998. The burden of proof is upon the appellant to show, on the balance of probabilities, that he has a ‘family life’ with his partner and children and that his exclusion from the UK as a result of the respondent’s decision would interfere with that right. It is then for the respondent to justify any interference caused. The respondent’s decision must be in accordance with the law and must be a proportionate response in all the circumstances.
18. The issue in the appeal is set out in the appellant’s skeleton argument as follows:
“i) Whether the Appellant’s deportation is conducive to the public good.
ii) Whether it would be unduly harsh for the Appellant’s British national wife and British children to be separated from him if he was deported from the UK.
iii) Whether the Appellant’s deportation from the UK would breach the UK’s obligations under the European Convention on Human Rights.
iv) Whether it would be in the best interests of the Appellant’s British children to be separated from him if deportation is maintained.
v) Whether there are very compelling reasons that outweigh the public interest against the Appellant’s deportation.
19. Before we address the issues that arise in an Article 8 appeal such as this, it is helpful for us to establish whether Article 8 is engaged. The appellant is married to his partner and there are two children of that relationship. The appellant lived with his partner, their children and his partner’s two elder children, both of whom are now adults, as a family unit prior to his incarceration. We are quite satisfied that the appellant has a family life with his partner and their children for the purposes of Article 8. Whether characterized as a ‘family’ or ‘private’ life, the appellant has plainly featured in the lives of [AA] and [SA] and has built a relationship with them.
20. We find that the decision to remove the appellant has consequences of such gravity as to engage the operation of Article 8. Given the appellant’s convictions and sentence we accept that the interference is in accordance with the law, and that the interference is necessary to protect the legitimate aim of immigration control, the prevention of crime and the economic well-being of the country. The question therefore is whether the interference to the appellant’s family life is proportionate to the legitimate public end sought to be achieved.
21. As we have already set out, in considering the public interest question, we must (in particular) have regard to the considerations listed in section 117B and section 117C of the 2002 Act.
22. The appellant does not claim that the Exception 1 set out in s117C(4) of the 2002 Act applies. The focus of the appellant’s claim is upon Exception 2 set out in s117C(5) of the 2002 Act. That is, the appellant has a genuine and subsisting relationship with a qualifying partner, or a genuine and subsisting parental relationship with qualifying children, and the effect of the appellant’s deportation on his partner or children would be unduly harsh.
23. In reaching our decision, we have throughout had regard to the best interests of the appellant’s two children [ZJ] who is now aged 11, and [NJ], who is now aged 4 as a primary consideration. The leading authority on section 55 remains ZH (Tanzania) v Secretary of State for the Home Department [2011] UKSC 4. In her judgment, Lady Hale confirmed that the best interests of a child are “a primary consideration”, which, she emphasised, was not the same as “the primary consideration”, still less “the paramount consideration”. As a starting point, we readily accept that the best interests of both [ZJ] and [NJ] are best served by being with both or at least one of their parents. We have in mind the evidence of the appellant and his partner regarding the role the appellant claims to play in the lives of the children and we have had in mind, in particular, the statement of [ZJ] dated 6 June 2024.
24. We are prepared to accept that this is a close family and that the appellant’s partner and the children, including the two adult children of the appellant’s partner, would undoubtedly wish to continue living together in the same way to which they were accustomed.
25. We have considered what is said in the assessment completed by Lynzi Freemantle. The assessment was obtained by the respondent to gather information regarding the potential impact on the children if the appellant is deported. She has gathered information from a number of sources. The assessment provides an overview of the family’s circumstances. Ms Freemantle refers to the ‘significant financial impact’ on the family since the appellant was imprisoned. The appellant’s partner works part-time, and her eldest daughter has had to put off further education to help support the family financially. The appellant’s partner refers to the daily struggle to make ends meet with the risk of amenities such as a ‘mobile phone’ and ‘Sky TV’ subscription being turned off. Ms Freemantle states that if the appellant is able to return home having completed his sentence, that would be a ‘short-term difficulty.’ There are equally concerns about the ability of the appellant’s partner and children being able to afford the costs of visits to Pakistan so that the children would be unable to have direct contact ‘for years at a time,’ with an emotional impact on the children.
26. Ms Freemantle also refers to the impact on the children’s education. She refers to information provided by [SA]’s pastoral care teacher that [SA]’s attainment has dipped significantly since the appellant went to prison because he has been unable to focus on his studies. Furthermore, Ms Freemantle refers to Nazia and the children becoming more socially isolated because the appellant was the only parent in the household who could drive.
27. Ms Freemantle refers to the impact the appellant’s incarceration has had upon [AA] and [SA]. [AA] has put off further education to help support the family financially and there has been an impact on [SA]’s attainment during an important phase in his education. [ZJ] has not shared with his peers or teachers in school that his dad is in prison. [NJ] was seen to have difficulty relating to people and Ms Freemantle notes [NJ] is not yet at the age to benefit from free nursery placement. There is no reference to any impact upon the education of the two younger children [ZJ] or [NJ]. Ms Freemantle reports that, from information provided by Nazia, the area in which there has been a significantly detrimental impact is in terms of the children’s emotional wellbeing, particularly with the appellant not being present during significant celebrations. Ms Freemantle refers to the impact upon the children of the loss of the appellant as a consistent person in their lives for the remainder of their childhood, and in particular, the possibility of immediate deportation straight from prison without any meaningful, ‘in-person goodbye.’ Ms Freemantle also refers to what she describes as a “clear impact on Nazia’s mental health since Jamshaid was imprisoned,” caused by both an emotional pressure on Nazia due to worry about her future, and also a huge undertaking on her to have to parent three children by herself. Ms Freemantle concludes that the appellant appears to be an active father who brings so much to his family and family functions. She states there has already been a hugely negative impact on the children thus far due to his imprisonment, with these already existing issues worsening if the appellant were to be deported.
28. We note from the witness statement of the appellant that he has worked previously in a Cash and Carry and in ‘Takeaways,’ as well as working as a taxi driver. We also note the evidence of the appellant and Nazia that when the two eldest children were younger, Nazia would suggest the children be dropped off to her parents or siblings for them to babysit if she were working late. We find the appellant and Nazia have a network of extended family members to whom they can turn to for support
29. We attach due weight to the report of Ms Freemantle. We accept Nazia is likely to feel lonely without the appellant. That is an inevitable consequence of the separation of the family arising from the appellant’s conviction and imprisonment. We accept the appellant is likely to have provided some support to the family but we do not accept that Nazia and the elder children, [AA] and [SA] would be unable to manage without the appellant’s assistance. Although we have no doubt that life will have been a struggle, Nazia and the two elder children have managed during the period when the appellant has been incarcerated. Nazia and the children have visited the appellant in prison and we accept that such visits will have been emotional and difficult. We accept Nazia and the children would prefer to receive the on-going assistance they received from the appellant, but we have no doubt that the two younger children have been adequately cared throughout, even whilst the appellant has been serving a sentence of imprisonment. They were able to rely upon emotional and practical support from their elder step-siblings. We find the family will have developed friendships and has the support of the extended family available to them, including the support that we find will be available to Nazia from her parents and siblings. We are quite satisfied that the extended family has been available to assist with the care of the children previously, and there is no reason why they will not be available to provide emotional and practical support in the future. We find the extended family will have rallied around to ensure that the needs of Nazia and the children were met during the difficult times following the appellant’s arrest, conviction and incarceration. We are satisfied that they would do so again, in the future.
30. The period during which the appellant was incarcerated will have been difficult for Nazia and all four children, albeit the elder two are now adults. We accept the appellant’s removal to Pakistan will have some impact upon the ability of [ZJ] and [NJ] in particular to see the appellant regularly. We accept [ZJ]and [NJ] would want the appellant to remain in the family home and to provide on-going support. The family has however demonstrated its ability to cope during the time the appellant has been incarcerated. We accept the appellant is a primary attachment figure and Nazia and the children, in particular [ZJ] and [NJ], will undoubtedly be upset. They will however continue to have the day-to-day support of each other and the extended family. In HA (Iraq) & Others v SSHD [2022] UKSC 22, the Supreme Court held that in determining whether the deportation of a foreign criminal would be unduly harsh on their partner or child for the purposes of s117C(5) of the 2002 Act, the court has to follow the direction given in MK (Section 55; Tribunal Options: Sierra Leone) [2015] UKUT 223 (IAC) and approved in KO (Nigeria) v SSHD [2018] UKSC 53, and has to recognise that the threshold for the level of harshness justifiable in the context of the public interest in the deportation of foreign criminals is highly elevated.
31. Whilst we are prepared to accept that the appellant’s removal to Pakistan will have some impact upon his ability to see Nazia and the children regularly, and to provide the support he has previously, having had regard to all the evidence before us, we are not satisfied that the consequences which Nazia and the children will face, in the event of the appellant’s removal, would be unduly harsh. Nazia will be able to continue working part-time as she has before and will be able to turn to the extended family for practical and emotional support. [AA] and [SA] are now adults and will have the practical and emotional support of their mother and extended family. Neither Nazia nor any of the children have any unmet health or educational needs. Even with the evidence before us of Ms Freemantle we find that Nazia will provide the children with stability when that is required.
32. The appellant therefore fails to meet the statutory exceptions to deportation in every respect and what he must show, if he is to avoid deportation on Article 8 ECHR grounds, is that there are very compelling circumstances, over and above those in the exceptions to deportation, which suffice to outweigh the public interest in deportation: s117C(6) of the 2002 Act.
33. Upper Tribunal Judge Bruce said in her ‘error of law’ decision that the appellant has failed to identify any feature of the evidence capable of establishing that the appellant’s Article 8(1) rights outweigh the strong public interest in his removal if he cannot establish that it would be unduly harsh for the children in this family if their father were to be deported. The test in s117C(6) is a proportionality test, balancing the rights of the appellant against the public interest in his deportation. The scales are nevertheless weighted heavily in favour of deportation. Although the appellant has not been sentenced to a period of imprisonment of four years or more, he does not fall beneath the statutory threshold for automatic deportation as a foreign criminal, and we consider that there is a cogent and strong public interest in his deportation.
34. Against the cogent public interest in deportation, the importance of which is underlined in primary legislation, we accept the appellant has a strong family and private life in this country as we have already set out. We have had regard to the length of time that the appellant has spent in the UK, and the strength of his connections to the UK. The appellant has supported Nazia, her children from a previous relationship and the children of their own relationship in the past, and we accept that during the appellant’s time in prison, the wider family managed the best they could in the situation.
35. In our final analysis, we find the appellant’s protected rights, whether considered collectively with rights of others that he has formed associations with, or individually, are not such as to outweigh the public interest in the appellant’s removal having regard to the policy of the respondent as expressed in the immigration rules and the 2002 Act. We are satisfied that on the facts here, the decision to remove the appellant is not disproportionate to the legitimate aim of immigration control and we therefore dismiss his appeal on Article 8 grounds.
Notice of Decision
36. We dismiss the appeal on the basis that the refusal of leave to remain does not breach section 6 Human Rights Act 1998 (based on Article 8 ECHR).

V. Mandalia
Upper Tribunal Judge Mandalia

Judge of the Upper Tribunal
Immigration and Asylum Chamber

10 July 2025