Tribunal decisions

The decision

IN THE UPPER TRIBUNAL
IMMIGRATION AND ASYLUM CHAMBER
Case No: UI-2024-005607

First-tier Tribunal No: HU/51135/2023

THE IMMIGRATION ACTS

Decision & Reasons Issued:
On the 20 March 2025

Before

DEPUTY UPPER TRIBUNAL JUDGE KUDHAIL

Between

SECRETARY OF STATE FOR THE HOME DEPARTMENT
Appellant
and

OH
(ANONYMITY ORDER MADE)
Respondent

Representation:
For the Appellant: No appearance
For the Respondent: Mr Tufan, Senior Home Office Presenting Officer

Heard at Field House on 10 March 2025

Order Regarding Anonymity

Pursuant to rule 14 of the Tribunal Procedure (Upper Tribunal) Rules 2008, the Appellant (and/or any member of his family, expert, witness or other person the Tribunal considers should not be identified) is granted anonymity.

No-one shall publish or reveal any information, including the name or address of the Appellant, likely to lead members of the public to identify the Appellant (and/or other person). Failure to comply with this order could amount to a contempt of court.

DECISION AND REASONS

1. The appellant appeals with permission against the decision of First-tier Tribunal Judge Phull [‘the Judge’] promulgated on 15 October 2024, in which the respondent’s appeal against the Secretary of State’s decision to refuse to revoke a deportation order on human rights grounds dated 12 January 2023 was allowed. For ease I now refer to the parties as they were before the First-tier Tribunal, with OH as the appellant and the Secretary of State as the respondent
Decision to not Adjourn
2. The appellant did not make an appearance at the hearing. I was informed by the clerk and Mr Turfan that the appeal had previously been adjourned on 04 February 2025 due to the appellant’s lack of attendance. I was also informed that the directions arising from that hearing and a notice of hearing for today was sent to the appellant by email and post on 17 February 2025. There has been no further contact with or from the appellant. I asked my clerk to email and telephone call the appellant to make enquires. I put the matter back to allow the appellant some time to attend and/or make contact.
3. Upon the resumed hearing, there was no response to my clerks enquires.
4. I asked Mr Tufan to make submissions on whether the hearing should be adjourned. His response was that as the appellant had been on notice and in view of his previous non-compliance the hearing should proceed.
5. I have carefully considered the overriding objective to deal with cases fairly and justly, as set out in Section 2 of the Tribunal Procedure (Upper Tribunal) Rules 2008 and whether to adjourn the appeal. I am mindful that this appeal has been adjourned previously due to the appellant’s non-attendance. Further that the appellant was aware that the hearing was scheduled for today and has chosen not to attend. The appellant has not provided a good reason for not attending. I have also given weight to the fact that the appellant is a litigant in person, who has mental health issues and thus is vulnerable. I note there is no evidence why it would be difficult for the appellant to attend. Balancing these considerations, I am of the view that it is fair and just to proceed.
Background
6. The appellant is a national of Colombia born in January 1979, who arrived in the UK in November 1991 and claimed asylum. This was refused but he was granted discretionary leave to remain until December 2005. He left the UK and returned to Columbia, returning on an unknown date. In May 2007, the appellant applied for Indefinite Leave to Remain and this was granted on 04 June 2007.
7. On 12 August the appellant and his former partner, MB had a son, who is British.
8. Between 2006 and 2024, the appellant has amassed 12 convictions for 27 offences. He is a persistent offender.
9. On 8 June 2016, the appellant was convicted of breach of a restraining order in relation to his former partner [MB}. He was sentenced to 8 weeks’ imprisonment for that offence and another 11 weeks, to run consecutively, for three previous driving offences.
10. On 1 February 2018, a permanent restraining order was made against the appellant, preventing him from contacting his former partner, directly or indirectly, except via solicitors or a contact centre.
11. On 19 June 2018, the appellant was served with a Stage 1 deportation letter and a one-stop notice. He did not respond. On 3 August 2018, he was served with a Stage 2 deportation decision and a signed order. That order has not been revoked.
12. On 31 October 2019, an application was made to the Colombian Consulate for an emergency travel document, which was provided on 24 January 2020. On 26 February 2020, the appellant was detained pending removal, but following judicial review proceedings, the removal directions were deferred and further representations lodged. On 12 January 2023, the Secretary of State refused the appellant international protection pursuant to the Refugee Convention or leave to remain on human rights grounds.
13. The appellant appealed to the First-tier Tribunal. This was heard by the First-tier Tribunal and in a decision dated 12 January 2023, the Judge dismissed the asylum claim but allowed the appeal on human rights grounds. The respondent obtained permission to appeal and this came before the Upper Tier Tribunal.
14. In a decision dated 13 May 2024, the Upper Tier Tribunal found the previous First-tier Tribunal decision contained an error of law on the human rights findings and preserved the findings of fact on the protection claim. The Upper Tier Tribunal remitted the appeal on this narrow point to be heard afresh by a different First-tier Tribunal.
First-tier Tribunal decision
15. In a decision dated 15 October 2024, the Judge allowed the appeal on Article 8 ECHR grounds. The Judge found the appellant was able to meet the exceptions to deportation as contained in Section 117C (4 ), (5) and (6) of the Nationality and Immigration Act 2002 [‘NIAA 2002’].
16. With respect to exception 1 she found the appellant had lived in the UK lawfully for over half his life. She found the appellant’s evidence of working, relationships , friendships and medical issues demonstrated he was socially and culturally integrated. She also found that there would be very significant obstacles to reintegration as the appellant had been in the UK since he was 16 years old. She found there had been 2 short visits to his home country Upper Tier that he had no real ties to it anymore. In doing so, she considered he had family in the country but found his particular mental health needs and support in the UK, indicated he was fragile. This she found meant the appellant would not be able to re-integrate.
17. With respect to Exception 2, she found it would be unduly harsh for the appellant’s son to remain in the UK without him, due to the impact upon the child. She sets out that the child has undiagnosed autism, which would make it difficult for him to understand why the relationship has been severed and he was unable to spend time with his father.
18. With regards to Section 117C (6) NIAA 2002, the Judge found that a combination of factors lead to the conclusion that there are very compelling circumstances which outweigh the public interest.
The appeal
19. Permission was given on all three grounds. The first ground submitted is that the Judge erred in the assessment of very significant obstacles as there were inadequate reasons given for finding that (a) the appellant had no real ties when there was evidence that he had family in Columbia and his family could provide him with support for his mental health issues. Further that the judge misdirected themselves when finding the test had been satisfied as they failed to apply the elevated test, as there was no evidence to support the finding of significant difficulties given the family and healthcare availability.
20. Secondly, that the Judge erred by making a material misdirection in law, when applying the unduly harsh test. There was no evidence to show the appellant’s son would be adversely impacted, particularly given the elevated test.
21. Thirdly, that the Judge erred by making a material misdirection in law, when conducting the proportionality assessment to consider if there were very compelling circumstances. The Judge did not give weight to the appellants repeat offending, this was at odds with the finding that “the offending is very much the exception, to feed his drinking and substance misuse, in what has otherwise been a law-abiding life.”.
22. Mr Turfan relied upon the grounds.
Findings and reasons
23. I have considered the judge’s decision with care an exercise appropriate judicial restraint before interfering with it. I am are guided by the Court of Appeal’s approach to challenging a finding of fact: see Volpi & Anor v Volpi [2022] EWCA Civ 464 (05 April 2022) at [2]-[5] in the judgment of Lord Justice Lewison, with whom Lord Justices Males and Snowden agreed. The Court emphasised that the Upper Tribunal may interfere with findings of fact and credibility only where such a finding is ‘plainly wrong’ or ‘rationally insupportable’.
24. I have also had regard to the guidance on judicial restraint in such interference given by the Court of Appeal in Ullah v Secretary of State for the Home Department [2024] EWCA Civ 201 at [26(i)] and [26](ii)] in the judgment of Lord Justice Green, with whom Lord Justices Lewison and Andrews agreed
25. Permission to appeal was granted on ground one that it was arguable that the Judge did not address the question of support from the appellants family when determining there were very significant obstacles. At paragraph 34, the Judge found that the appellant’s young age and length of absence from Columbia with only two short visits, meant the appellant had “no real ties” to the country. She expressly considered the appellant’s family contact by telephone. The Judge found the appellants fragile mental health and lack of proper accessible treatment, would lead to very significant obstacles. In doing so she placed weight on the country expert evidence.

26. The evidence before the Judge was that the appellant had complex PTSD, anxiety, depression, long standing issues with suicidal ideation and had a real risk of suicide. The Judge gave weight to Dr Hameed’s report which stated disrupting fragile protective factors placed the appellant at an elevated risk of relapse. The Judge does not within the decision address the issue of why the family, with whom the appellant accepts he has contact, would not be a protective factor and why they could not assist him in gaining access to treatment/support. This is material to the issue of whether there are very significant obstacles to reintegration. It is not possible for a reader, or the losing party, to understand why the conclusion was reached that the appellant had no ties. The failure to give adequate reasons is an error of law.

27. The respondent also submits that the Judge, failed to provide adequate reasons for the finding that it would be unduly harsh for the appellant’s son to live without him in the UK (the “stay” scenario). At paragraph 55, the Judge states that severance of the relationship will lead to an adverse impact on the child, but the decision does not identify what the likely impact would be given current contact is fortnightly and supervised. Whilst the Judge refers to a likely diagnosis of autism, the decision does not set out how this would adversely impact the child’s relationship. The underlying evidence before the judge was insufficient as she accepts it is an undiagnosed condition. The reasoning to find the impact would be unduly harsh is brief and unsupported by the evidence before the First-tier Judge. The failure to give adequate reasons is an error of law.
28. With regards to the Judges proportionality assessment under Section 117(C)(6) NIAA 2002, I am satisfied that her reliance upon her findings in exception 1 and 2, infect the entire decision, and that the decision should be set aside in its entirety.
29. I have decided that this case should be remitted to the First tier Tribunal, having applied the guidance in paragraph 7 of the Senior President’s Practice Statement and AEB v Secretary of State for the Home Department [2022] EWCA Civ 1512 and Begum (Remaking or remittal) Bangladesh [2023] UKUT 00046 (IAC). I am satisfied that the nature and extent of the judicial fact finding which is necessary for this appeal to be re-made means that it is appropriate to remit the case to the First-tier Tribunal.
Notice of Decision
The decision of the First-tier Tribunal involved the making of an error of law.
The decision of the First-tier Tribunal is set aside in its entirety.
The decision is remitted to the First-tier Tribunal for a de novo hearing before a Judge other than First-tier Tribunal Judge Phull and First-tier Tribunal Howard.

S K KUDHAIL

Judge of the Upper Tribunal
Immigration and Asylum Chamber

18 March 2025