Tribunal decisions

The decision

IN THE UPPER TRIBUNAL
IMMIGRATION AND ASYLUM CHAMBER
Case No: UI-2024-005636

First-tier Tribunal No: HU/51195/2022

THE IMMIGRATION ACTS

Decision & Reasons Issued:

28th May 2025

Before

UPPER TRIBUNAL JUDGE LODATO

Between

ABDULKARIM BANITARIF
(NO ANONYMITY ORDER MADE)
Appellant
and

SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: Mr Holmes, counsel instructed by Masaud Solicitors
For the Respondent: Mr Diwnycz, Senior Presenting Officer

Heard at Phoenix House (Bradford) on 21 May 2025

DECISION AND REASONS

Introduction

1. The appellant appeals with permission against the decision, dated 24 September 2024, of First-tier Tribunal Judge Cox (‘the judge’) to dismiss the appeal on human rights grounds. The decision was taken in the context of the respondent’s intention to deport the appellant as a foreign criminal.

Background

2. The broad procedural background and immigration history is not in dispute between the parties. The appellant was convicted of serious class A drug offences in July 2011 which resulted in a sentence of imprisonment of two years and eight months. He relied on his relationship with his two minor children with whom the Family Court has approved supervised contact of two hours per fortnight. The centrepiece of his Article 8 claim to resist deportation was that his removal would have an unduly harsh impact on his children.

Appeal to the First-tier Tribunal

3. The appellant appealed against the refusal of the claim. The appeal was heard by the judge on 12 September 2024 before dismissing the appeal on human rights grounds in a decision promulgated on 24 September 2024. For the purposes of the present proceedings and the articulated grounds of appeal, the following matters are of relevance from the decision:

• The judge, in setting out the uncontroversial background facts, noted that the appellant has two children with his former partner. The appellant’s son was born in February 2015 and his sister in December 2019. The appellant’s daughter is a British citizen, and his son has indefinite leave to remain under the EUSS. [10]

• As noted above, the appellant benefits from Family Court approved contact with his children. He was due to take a course in September 2024 and contact arrangements were to be reviewed in April 2025. [13]

• The judge set out the applicable legal framework, between [14]-[16], before turning to the legal test of undue harshness, from [17]. At [19], the judge included the following summary (taken from Lord Hamblen’s judgment in HA (Iraq) v Secretary of State for the Home Department [2022] UKSC 22) of the applicable principles which should inform the judicial assessment of whether the effect on a given child will be unduly harsh:

[…] Lord Hamblen […] noted that, as Underhill LJ stated at para 56 of AH/RA in the Court of Appeal:

“… if tribunals treat the essential question as being ‘is this level of harshness out of the ordinary?’ they may be tempted to find that Exception 2 does not apply simply on the basis that the situation fits into some commonly-encountered pattern. That would be dangerous. How a child will be affected by a parent’s deportation will depend on an almost infinitely variable range of circumstances and it is not possible to identify a baseline of ‘ordinariness’. Simply by way of example, the degree of harshness of the impact may be affected by the child’s age; by whether the parent lives with them (NB that a divorced or separated father may still have a genuine and subsisting relationship with a child who lives with the mother); by the degree of the child’s emotional dependence on the parent; by the financial consequences of his deportation; by the availability of emotional and financial support from a remaining parent and other family members; by the practicability of maintaining a relationship with the deported parent; and of course by all the individual characteristics of the child.”

Lord Hamblen then considered what is the appropriate way to interpret and apply the unduly harsh test. His lordship considered that the best approach is to follow the guidance which was stated to be authoritative in KO (Nigeria), namely a self direction given by the upper tribunal in MK, namely

“… ‘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”

• The Home Office Presenting Officer accepted at the hearing that the appellant had a limited parental relationship with his qualifying children but that it would not be unduly harsh for them to remain in the UK upon their father’s deportation to Iran. [22]

• The judge considered the central issue of undue harshness on the appellant’s children in his findings between [26] and [29]:

My first consideration is the best interests of the children. The Respondent acknowledged that the Appellant was playing an integral role in the children’s lives until his relationship with their mother broke down. In the review, the Respondent invited the tribunal to view the situation at present as perhaps a step on the long path to building a genuine and subsisting relationship with the children, rather than evidence that there is one at present. However, the Presenting officer conceded that the Appellant does have a genuine relationship with the children, albeit that it is limited.

The Appellant seeks to rely on the addendum CAFCASS report. The author acknowledged that it would be emotionally harmful to the children to stop direct family time (paragraph 26 of the report). Further given that the Family Court have now authorised fortnightly supervised contact, it is clearly in the children’s best interest for them to have direct contact with the Appellant. I pause to note that the evidence suggests that [the appellant’s son] has a particularly good relationship with the Appellant.

Overall, I accept that if the Appellant is deported to Iran, then, the children and [the appellant’s son] in particular, are likely to find it very difficult. The author of the report, noted that “[the appellant’s son] continues to present as quiet, subdued and anxious in school and has received additional emotional support in relation to his anxieties” (paragraph 7). It appears that he has been effected by his parent’s separation. As such, a reasonable inference to draw is that if the Appellant was deported, then this is likely to cause a further deterioration in the child’s well-being and adversely impact his development. Although this is likely to be harsh on the child, the Appellant has not demonstrated that it would be unduly harsh. In my judgement ‘emotionally harmful’ does not meet the elevated threshold.

Accordingly, the Appellant has not demonstrated that he falls within the exceptions and therefore cannot rely on section 117C(3) (or paragraph 399(a) of the immigration rules).

• The judge proceeded to undertake a broader balancing exercise in assessing whether there were very compelling circumstances to outweigh the public interest in the appellant’s deportation. In doing so, the judge reiterated the findings he had already reached in relation to undue harshness (see [34]-[35]). The overall conclusion was reached that there were not very compelling circumstances to render the appellant’s removal disproportionate. As this part of the decision was not subject to direct challenge in the grounds of appeal, it is unnecessary to say any more about these findings.

Appeal to the Upper Tribunal

4. The appellant applied for permission to appeal on the following grounds:

i. The judge failed to consider material matters going to undue harshness for the appellant’s two qualifying children and, in doing, overly focussed on whether emotional harm was capable of meeting the legal threshold.

ii. The judge’s reasons were legally inadequate in explaining why emotional harm could not, in principle or on the facts of this case, meet the required legal threshold. [There is necessarily some overlap with ground one as to whether the judge adequately set out his reasons for finding that the overall circumstances did not amount to undue harshness]

iii. The judge adopted an irrational approach in appearing to conclude that emotional harm, as a matter of principle, could never qualify as undue harshness.

5. In a decision dated 25 November 2024, First-tier Tribunal granted permission for all grounds to be argued. The following observations were made in granting permission:

In an otherwise well written and clear decision although the Judge refers at [19] to the guidance given in HA and is clearly aware of the opinion in the CAFCASS report [27], it is arguable that the Judge erred as asserted at (a) and (b) above. Although, there is no merit in the ground (c) above, I do not consider it appropriate to limit the grant of permission.

Reading the decision as a whole the Judge is clearly not making a finding that emotional harm as a consequence of deportation can never render that deportation unduly harsh on a child.

For the sake of clarity permission is granted on all grounds.

6. At the error of law hearing, I heard oral submissions from both parties. I address any submissions of significance in the discussion section below.

Discussion

7. The touchstone for considering adequacy of reasoning as an error of law remains R (Iran) & Others v SSHD [2005] EWCA Civ 982. At [13]-[14] of the judgment of Brook LJ, it was emphasised that reasons must be sufficiently detailed to show the principles on which a decision was made and why the ultimate decision was reached. Reasons need not be elaborate nor is it necessary to address each and every matter which might have had a bearing on the overall decision if those which were material to the reasoning have been articulated. In DPP Law Ltd v Paul Greenberg [2021] EWCA Civ 672, the Court of Appeal, in the context of employment proceedings, considered adequacy of reasoning as an error of law. Popplewell LJ, stressed, at [57], the need to consider judicial reasons fairly and as a whole without being hypercritical. Restraint is required to read reasons benevolently. “Simple, clear and concise” reasoning was to be encouraged to enable to parties to broadly understand why they had won or lost. Further, it should not be assumed that an element of the evidence which was not expressly discussed was thereby left out of account. While these observations were made in the context of employment proceedings, they are of relevance in the immigration and asylum sphere because this is also a jurisdiction in which decisions are made by expert tribunals attenuated by the need to give appeals anxious scrutiny.

8. Mr Holmes argued that paragraph [28] of the decision had a jarring quality in that the judge discussed the evidence going to undue harshness which tended to suggest that the direction of travel was to a finding in the appellant’s favour on this decisive question. In particular, the emphasis on an extract from the CAFCASS report permitted the inference to be drawn that “this is likely to cause a further deterioration in the child’s well-being and adversely impact his development”. This was said to be language in keeping with the test to establish the statutory exception. The final two sentences of this paragraph – in which it was found that the effect on this child of the appellant’s deportation would be harsh, but not unduly so, and that “emotionally harmful” does not meet the required threshold – represented an abrupt change of direction which called for a fuller explanation in the reasons. I am not persuaded that this renders the reasons inadequate in law. Another way of looking at the reasons is that the judge was simply setting out why the effect on the children would be harsh, but did not rise above the necessary threshold of being unduly harsh. The finding which touched on the likely adverse impact on the appellant’s son’s well-being and development was not tantamount to undue harshness. It was open to the judge to conclude that this, and the overall circumstances, fell short of the elevated threshold described in the self-direction the judge recorded at [20] of his decision. It is tolerably clear that the judge was looking to the factors which weighed heaviest in the appellant’s favour and then assessed the overall position through the lens of undue harshness.

9. Mr Holmes further argued that the judge neglected to expressly address the full range of material factors which should have informed his assessment of undue harshness. In support of this contention, Mr Holmes referred to a passage from the judgment of Underhill LJ in the Court of Appeal decision in HA (Iraq). The first point to note is that this part of the judgment of Underhill LJ was to be seen word-for-word in Lord Hamblen’s judgment in the Supreme Court decision in the same proceedings. Judge Cox reproduced this part of Lord Hamblen’s judgment in his summary of the legal principles. It cannot be said that the judge did not have the full range of potentially relevant factors in mind when he considered the undue harsh test. For judicial reasons to be lawfully adequate, the judge is not required to exhaustively set out each and every matter which might have had a bearing on the overall decision reached. To hold otherwise would be to promote judicial reasoning by checklist. The judge was not required to explicitly comment on each and every factor referred to by Lord Hamblen, but to reach a decision on whether the qualifying children would suffer an unduly harsh impact from their father’s removal and to explain why he reached that conclusion. A fair reading of the decision reveals that the judge took account of the limited parental relationship which included two hours of supervised contact every fortnight, the particularly close relationship between the appellant and his son and how he was already receiving support for his anxiety and would find his father’s removal “very difficult”. It was acknowledged that his well-being and development would suffer further, but that these factors did not reach the elevated threshold.

10. It is fair to say that the judge’s reasons are brief on this issue and he might have expressly touched on the support available to the children and the extent to which the gap left by their father might be mitigated and the practical means by which they could maintain a relationship with him in the future after he was deported. However, I must exercise restraint no to find a material error of law solely on the basis that more might have been said. More could always be said. Instead, the real question is whether enough was said to enable the appellant to understand why his case did not succeed on this issue. He can be in no sensible doubt about why it was found that his children would not suffer an unduly harsh impact from his removal. This analysis applies with equal force to the suggestion that material factors were left out of account. I am not persuaded that the decision reveals that the judge did not have the full range of relevant factors in mind when deciding the undue harshness issue.

11. I can address the argument about whether the judge adopted an unlawful approach to his assessment of whether emotional harm is capable of meeting the applicable legal threshold of undue harshness. A fair reading of the decision does not support the proposition that the judge was taking a principled decision about the reach of emotional harm in this context. On the contrary, the judge was plainly referring back to a comment made in the CAFCASS report that it would be emotionally harmful to the children to cease direct contact with their father and observing that this evidence alone could not satisfy the elevated threshold on the facts of this case. It was open to the judge to take this view on the weight to be attached to this evidence and, in combination with the remainder of his findings, find that the impact on the children would not be unduly harsh.

12. I am not satisfied that the decision involved a material error of law, and the decision therefore stands.

Notice of Decision

The decision of the judge did not involve a material error of law and the dismissal of the underlying human rights appeal therefore stands undisturbed.

Paul Lodato

Judge of the Upper Tribunal
Immigration and Asylum Chamber

27 May 2025