Tribunal decisions

The decision

IN THE UPPER TRIBUNAL
IMMIGRATION AND ASYLUM CHAMBER
Case No: UI-2024-005652

First-tier Tribunal No: HU/00714/2024

THE IMMIGRATION ACTS

Decision & Reasons Issued:
18th June 2025

Before

UPPER TRIBUNAL JUDGE BULPITT
DEPUTY UPPER TRIBUNAL JUDGE WALSH

Between

IBRAHIM OJIKUTU
(NO ANONYMITY ORDER MADE)
Appellant
and

SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: Ms. S Ferrin, Counsel, Instructed by Bail for Immigration Detainees
For the Respondent: Mr. E Tufan, Senior Home Office Presenting Officer

Heard at Field House on 24 March 2025

DECISION AND REASONS
1. This is an appeal against a decision of First-tier Tribunal Judge Thapar (“the judge”) dated 10 November 2024.
2. The appellant is a citizen of Nigeria, born on 20th January 1982. He appealed against the respondent’s decision dated 4th April 2024 refusing his human rights claim dated 24 November 2023 and further submissions made on 22 January 2024 and 28 February 2024.
3. The appellant’s human rights claim was made in response to the respondent’s decision of 14 November 2023 to deport the appellant under section 32(5) of the UK Borders Act 2007 following the appellant’s conviction on 12 May 2023 of multiple immigration offences (sham marriage conspiracy) and various offences of fraud for which he was sentenced on 30 June 2023 to an aggregate of four years imprisonment, though significantly, the sentences for each individual offence was less than four years imprisonment.
4. The appellant claimed that he fell within Exception 1 of Section 33 of the UK Borders Act and Section 117 C (5) (Exception 2) of the Nationality, Immigration and Asylum Act 2002, on the basis that his deportation would be unduly harsh on his children. It was also averred that there were very compelling circumstances over and above those in the statutory exceptions in section 117C of the 2002 Act which would render his deportation a breach of Article 8 of the ECHR.
5. In accordance with Upper Tribunal Immigration and Asylum Chamber Guidance Note 22 No. 2: Anonymity Orders and Hearings in Private at [33] the appellant’s children will not be named.
6. The background facts, in brief, are as follows. The appellant arrived in the UK on a student visa in 2007 valid until September 2008. The appellant left the UK in September 2009 after making subsequent unsuccessful applications for further leave to remain. He re-entered the UK in February 2010 again on a student visa which was extended to 15 October 2012. This leave was varied to leave to remain as a spouse valid until 15 November 2014. The appellant was granted indefinite leave to remain on 24 October 2014 (based on a sham marriage). In 2014, the appellant formed a committed relationship with Mutitat Titiope Bello with whom he has 3 children now aged 14; aged 11; and aged 5. The appellant’s partner is of Nigerian origin and a British citizen. She was a co-defendant in the criminal proceedings in relation to the immigration offences but was not the person to whom the appellant was married in the sham marriage conspiracy (her sham marriage was to another co-defendant). She received a two year suspended sentence.
7. The respondent accepted that the appellant has a genuine and subsisting relationship with his partner and with his children. The respondent did not dispute that it would be unduly harsh for the appellant’s partner and the children to leave the UK. The respondent did not accept that the appellant’s deportation would be unduly harsh on either the appellant’s partner or the children.
8. On behalf of the appellant at the First-tier emphasis was placed on the appellant’s role as the primary care giver for the children and the strength of the bond between the appellant and the children, particularly the middle child who has special educational needs and has been referred for neurodiversity assessment. Evidence from family and friends, the children’s schools and the expert evidence from an Independent Social Worker, Kathryn Brooks, was adduced to demonstrate the significant role the appellant plays in the lives of the children and the impact on all the children of his being separated from them. In support of the argument that there were very compelling circumstances, the appellant relied on the psychiatric assessment of the appellant’s partner by Dr. Galappathie who diagnosed her as suffering from general anxiety disorder, depression and PTSD. Dr. Galappathie opined that if the appellant is deported, his partner’s mental health is likely to deteriorate potentially impacting on her ability to prioritise the children. On the basis of Dr. Galappathie’s report, the appellant’s partner was treated as a vulnerable witness.
9. The respondent’s representative had no objection to the appellant’s partner being treated as a vulnerable witness and advised that he had no intention of cross-examining her on the circumstances she relayed to Dr. Galappathie resulting in the diagnosis of PTSD. However, no concession was made by the respondent with respect to the basis of the appellant’s claim and reliance was placed on the reasons for refusal letter, maintaining that that the appellant’s deportation would not be unduly harsh on his children.
The First-tier Tribunal Decision
10. There was no dispute that Dr. Galappathie and ISW Kathryn Brooks were suitably qualified experts. Although the judge did not question Dr. Galappathie’s diagnosis of the appellant’s partner, as will be seen she took issue with a number of aspects of his report some of which are the subject of this appeal.
11. In summary, the judge found that Dr. Galappathie had not taken into account sufficiently or at all positive and mitigating factors before coming to the conclusion that the appellant’s partner’s mental health would likely deteriorate if the appellant is deported. The judge found that it had not been established that the appellant’s partner’s health would deteriorate if the appellant was deported.
12. Similarly with respect to consideration of the ISW report, the judge summarised a number of positive factors in relation to the second child in particular which in the judge’s view had not been properly weighed in the balance in the report. Two issues arise on appeal from the judge’s comments on the report. In addition the judge considered a report from Mo Watson, independent social worker at the second’ child’s school and took issue with a number of matters again, subject of the appeal.
13. The judge found it would not be unduly harsh on the appellant’s partner or children if he were deported and did not find there to be very compelling circumstances to outweigh the public interest in deportation.
Grounds of Appeal
14. The single ground of appeal challenged the safety of the judge’s findings in respect of a) whether the mental health of the appellant’s partner had or would deteriorate and b) the impact on the children of the appellant’s deportation. The basis of challenge was that in respect of each finding, the judge had made factual errors; had given weight to immaterial matters; and/or had not taken into account or given insufficient weight to material matters.
a. With respect to the appellant’s partner’s mental health the errors made were identified as follows:
i. It was factually incorrect that Dr. Galappathie’s report failed to acknowledge that the appellant’s partner did access assistance through her GP and engaged in counselling during the appellant’s absence [35]
ii. It was factually incorrect that the medical records for the appellant’s partner do not suggest the appellant’s partner has suffered a deterioration in her mental health [35]
iii. The reasons provided by the appellant’s partner for not continuing with the prescribed anti-depressants were an immaterial consideration
iv. In stating that the basis of Dr. Galappathie’s belief that the appellant’s partner’s may fail to prioritise the children was unclear, the judge failed to take account of Dr. Galappathie’s experience and expertise; failed to place sufficient weight on the fact that the findings are based on the diagnoses and failed to place sufficient weight on the fact the appellant’s partner’s current presentation stems from being hopeful that he will not be deported

b. With respect to the impact of the appellant’s deportation on the children the errors were identified as follows:
i. It was factually incorrect that “there appear to be no present concerns with respect to the behaviour or well-being of the youngest child”
ii. It is factually incorrect that the appellant maintained position that the marriages were not a sham
iii. Insufficient weight was placed on the report of Mo Watson due to immaterial matters taken into consideration, namely the lack of detail as to her qualifications, that the report did not record the specific criminal offences of which the appellant was convicted and that the report does not mention the referral for a neurodiversity assessment.
iv. The judge failed to give sufficient weight to the fact that the children are unaware of the risk of the appellant’s deportation
15. No challenge was made to the judge’s finding that the appellant had not established very compelling circumstances save for her treatment of Dr. Galappathie’s report which is also relevant to the unduly harsh test.
16. Permission to appeal was granted by First-tier Tribunal Judge Murray on 3rd December 2024.
The Hearing
17. The hearing took place in person at Field House.
18. We had before us a bundle totalling 914 pages
19. The appellant had filed a skeleton argument rehearsing summarily the grounds of appeal. When it became apparent at the start of Mr. Tufan’s submissions that he had not received the skeleton, we adjourned for a short-time to enable Mr. Tufan to receive and consider the skeleton helpfully provided by Ms. Ferrin.
20. Ms Ferrin relied on the grounds of appeal and skeleton argument, taking us to the relevant pages within the evidence. We clarified with her whether in fact that she was arguing that the findings of the judge were irrational. Upon reflection she agreed that her challenge is that given the evidence before her the judge made findings that were not open to her to make in respect of the matters which were factually incorrect as identified above. She argued that in the event we find the judge’s findings on the appellant’s partner’s mental health to be unsafe, that finding carries over to the impact on the children given the relevance to her parenting capacity. Significant emphasis was placed on Dr. Galappathie’s report, whose findings, Ms. Ferrin submitted take the appellant’s case beyond the elevated threshold required in Section 117 C (5).
21. Early in his submissions, Mr. Tufan attempted to challenge the reliability of Dr. Galappathie’s report for being based solely on the self-reporting of the appellant’s partner. However upon being reminded that no challenge was made in the First-tier to what was reported by the appellant’s partner to Dr. Galappathie and no Rule 24 notice had been filed, he accepted that was not an argument he could not pursue. In summary, Mr. Tufan argued that the issues subject to challenge on the basis of materiality amount to no more to disagreements with the judge’s findings rather than errors of law. Whilst making no concessions with respect to the factual errors identified, Mr. Tufan submitted that any event, the factual errors averred are not material to the ultimate decision.
Legal framework
22. We took into account and applied the following authorities in relation to the issues relevant to our decision:
a. Weight attached to different factors: Herrera v Secretary of State for the Home Department [2018] EWCA Civ 412 at 18:
It is trite law that in performing an assessment of that kind different judges may reasonably reach different conclusions. Appellate tribunals must always guard against the temptation to characterise as errors of law what are in truth no more than disagreements about the weight to be given to different factors, particularly if first tribunal had the advantage of hearing oral evidence

b. The unduly harsh test: HA (Iraq) [2022] UKSC 22:
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.”

42. This direction has been cited and applied in many tribunal decisions. It recognises that the level of harshness which is “acceptable” or “justifiable” in the context of the public interest in the deportation of foreign criminals involves an “elevated” threshold or standard. It further recognises that “unduly” raises that elevated standard “still higher” - ie it involves a highly elevated threshold or standard. As Underhill LJ observed at para 52, it is nevertheless not as high as that set by the “very compelling circumstances” test in section 117C(6) …

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 judgment as to whether that elevated standard has been met on the facts and circumstances of the case before it.

c. The best interests of the children must be a primary consideration: ZH (Tanzania) v SSHD [2011] UKSC 4 and Zoumbas v SSHD [2013] UKSC 74; CAO v SSHD [2024] UKSC 32 and in particular the dicta of Jackson LJ in HA Iraq [2020] EWCA Civ 116:
152. Parliament has enacted two important public interests in cases involving children. Section 117C of the Immigration Act 2014 enshrines the public interest in the deportation of foreign criminals. Section 55 of the Borders, Citizenship and Immigration Act 2009 requires the Secretary of State to make arrangements to ensure that in her immigration functions she has regard to the need to safeguard and promote the welfare of children, which translates into a duty to make the best interests of the child a primary consideration. The decision-maker must bring both of these elements into play in accordance with the complete statutory code, applying (as may be appropriate in the individual case) the fulcrum of undue harshness, or of very compelling circumstances or of proportionality. A resulting decision to deport a parent may produce hugely detrimental consequences for a child but, provided his or her best interests have been adequately identified and weighed in the balance as a primary consideration, the decision will be lawful. But a decision that does not give primary consideration to the children’s best interests will be liable to be set aside.

155. The assessment that has to be carried out is therefore one that is adequately informed and specific to the individual child as a person distinct from the offending parent. It requires the decision-maker, as part of the overall assessment, to look at matters from the child’s point of view – in the case of Exception 2, the question explicitly concerns undue harshness to the child.

d. Material errors : Detamu v. Secretary of State for the Home Department [2006] EWCA Civ 604 at 18:
The question for us is whether the error of law was material in the sense that the Adjudicator must have reached the same conclusion. (emphasis added)
Discussion
23. We will address each of the two planks of the appeal in turn first dealing with the errors of fact before turning to the averred errors on weight given to material/immaterial considerations. As will be seen, we do find the judge erred in making findings of fact that were not open to her and will address the materiality of those errors in the final section.
Errors relating to the impact of the appellant’s deportation on the appellant’s partner’s mental health
Whether Dr. Galappathie acknowledged the appellant’s partner accessed assistance
24. As averred in the Grounds and Skeleton, the judge stated at [35] that Dr. Galappathie’s report “fails to acknowledge that the Appellant’s partner did access assistance through her GP and she engaged in counselling during the appellant’s absence and before the report of Dr. Galappathie”. At [114/40] Dr. Galappathie does state the appellant’s partner told him “she had spoken to a counsellor from work on a few occasions.”
25. We find therefore that the judge erred in stating that the Dr. Galappathie failed to take into account the appellant’s partner engaged in therapy.
Whether there was evidence that the appellant’s partner’s mental health deteriorated.
26. At [35] the judge finds that the medical records do not suggest the appellant’s partner has suffered a deterioration in her mental health. We note the entry by Dr. Dancea in the appellant’s partner’s medical records on 4 December 2023 [CB 221] records that for five months she had been stressed, struggling to eat and sleep, and has low mood but does not have suicidal thoughts. This appears to be the first reference to mental health difficulties in the appellant’s partners medical records. Dr. Galappathie opines that the records suggests that the appellant’s partner’s depression started to develop after the appellant was imprisoned.
27. The next entry in the medical records is on 27 December 2023 [CB 224] again by Dr. Dancea who records that she is sleeping better, is having therapy through work, and has no suicidal thoughts though she reported her mood fluctuates and reflected that she would need anti-depressants. There are a number of appointments at the surgery thereafter in relation to a physical condition. The next entry regarding mental health is a mention of a depression review follow up on 15 January 2024 which the appellant’s partner did not attend [CB 228]. The last entry in the medical records in the bundle is dated 24th January 2024 which records the appellant’s partner is asking for a “fit note” to return to work but there is no mention of her mental health [CB 229].
28. When considered from the start of the medical records, the appellant’s partner’s presentation on 4th December 2023 would reflect deterioration in her mental health. However, the medical records (our emphasis) after 4th December indicate a mixed picture rather than a clear deterioration. We are also uncertain as to whether the judge’s reference point was from the start of the medical records or from 4th December 2023.
29. We emphasised “medical records” above as the judge goes on to say at [36] that “there is nothing to suggest that her health conditions are not being managed or have deteriorated since January of this year (2024).” When Dr. Galappathie assessed the appellant’s partner on 5th July 2024, he was of the opinion that her anxiety related symptoms had worsened [CB122/73] and that her PTSD symptoms were now becoming more prominent.
30. We find therefore that the judge erred in presenting an incomplete picture of the appellant’s mental health trajectory.
Whether the judge attached appropriate weight to material/immaterial considerations in Dr. Galappathie’s assessment
31. There are two principle challenges here. Firstly it is averred that the judge took into account an immaterial consideration, that is, the reasons the appellant’s partner gave for stopping her anti-depressant medication. Secondly, in questioning the basis of Dr. Galappathie’s conclusion, it is averred that the judge placed insufficient weight on his expertise, the diagnoses of the appellant’s partner, and the context of her current presentation.
32. The starting point for considering the averred errors as to weight must be the context within which the challenged matters arise. It is necessary therefore to set out in full the relevant paragraph of the decision:
[36] I find [Dr. Galappathie’s] report fails to address the current reality that although there was an understandable impact upon Appellant’s partner following the Appellant’s imprisonment, the Appellant’s partner has not required support from her GP since January 2024, she is not taking any medication or receiving ongoing therapy, she has lived effectively as a single parent since June 2023 and there is nothing to suggest that her health conditions are not being managed or have deteriorated since January of this year. There is nothing before me to indicate that the Appellant’s partner has not prioritised the needs of her children in the Appellant’s absence and it is unclear upon what evidence Dr Galappathie has based his belief that the Appellant’s partner may fail to do so if the Appellant was deported. The children are well care for, they are progressing academically and do not have any diagnosed health conditions. There is no consideration of the support provided by the Appellant’s partner’s brother, sister in law, from friends, the children’s schools or from her employment and no consideration of the availability of visits to Nigeria to see the Appellant. I can appreciate that it is a very stressful time for the Appellant’s partner, but I am not satisfied it has been established that her mental health will deteriorate if the Appellant is deported.
33. As can be seen from the judge’s analysis at [36], the fact the appellant’s partner stopped taking her anti-depressant medication was one factor in the judge’s assessment of Dr. Galappathie’s report considered alongside many others which were not subject to challenge. Reading the judge’s analysis holistically, we find that the relevance of the cessation of medication is the impact (or lack thereof) rather than the reasons for doing so. Significantly, notwithstanding the appellant’s partner’s stopped taking her medication, for whatever reason, she continued to be able to prioritise the children.
34. We turn to consider whether the judge failed to take into account material considerations when querying the basis of Dr. Galappathie’s conclusion that the appellant’s partner may fail to prioritise the needs of her children.
35. It is clear to us that the judge had in mind Dr. Galappathie’s expertise and experience and his diagnoses of the appellant’s partner as those matters were unchallenged.
36. However, the worsening symptoms predicted by Dr. Galappathie at [112] of his report we find to be both speculative and generalised without sufficient consideration to factors specific to this case.
37. We find the judge’s query as to the basis of Dr. Galappathie’s conclusion arises in the absence of evidenced based reasoning as to how his conclusion is arrived at in light of the positive and mitigating factors present in this case as the judge sets out at [35] and [36], including factors Dr. Galappathie himself identifies at [112] of his report such as the appellant’s partner’s own professional knowledge of mental health.
38. We acknowledge that Dr. Galappthie does state at [112] that “Whilst increased support may help to mitigate these risks [ie ability to prioritise her children] her ability to take care of her children and prioritise their needs is likely to be impaired as a result of the deterioration in her mental health”. However, we find firstly, that this statement is predicated on a speculative assumption that there will be a deterioration in the appellant’s partner’s mental health, and secondly it is too generalised to be confident that Dr. Galappathie fully took account of the mitigating factors specific to this case and thirdly there is no explanation provided as to why support would not be sufficient.
39. We do note here that a specific and significant factor that Dr. Galappathie was unable to consider was the emotional support available to the children and the appellant’s partner from her brother. Dr. Galappathie did not have that evidence and was only told by the appellant’s partner that she had a brother who lived in London. It is unfair to criticise Dr. Galappathie for failing to take into account information of which he was aware but the reality is that Dr. Galappathie’s conclusion is based on incomplete information.
40. In the context of evidenced positive and mitigating factors we do not find it unreasonable for the judge to have expected Dr. Galappathie to clearly weigh these factors in the balance and provide evidenced based reasons as to why these factors would be insufficient to protect against a significant deterioration in the appellant’s partner’s ability to prioritise the children. In short we find that the Judge was entitled to give the weight she did to the report from Dr Galappathie and that she provided adequate reasons for why she did so.
Errors relating to the effect of the appellant’s deportation on his children
Whether there were concerns in respect of the behaviour or well-being of the youngest child.
41. At [42] the judge states that “The appellant’s youngest child is school ready, bright and likely to do well like his brothers. There appear to be no concerns regarding [the youngest child’s] behaviour or well-being.” The first sentence is in fact taken directly from the ISW report [CB501] “My observations of [the youngest child] would be that he is school ready and is a bright boy who, like his brothers, is likely to do well at school.” However, the Independent Social Worker also does record elsewhere in the report that the appellant’s partner reported her worries that he was copying the challenging behaviours of his next oldest brother and she stated he “is clearly missing his Dad and this is causing him emotional upset and greater emotional volatility than was the case prior to Mr. Ojukutu’s imprisonment.”
42. We agree that the evidence of the independent social worker does demonstrate concerns for both the behaviour and well-being of the youngest child and the judge erred in presenting an incomplete picture of the youngest child.
Whether the appellant maintained his denial that marriages which were the subject of his conviction, were a sham
43. At [44] the judge notes that the independent social work report states that the children were jointly raised from birth which was at odds with his denial that his marriage was a sham. However in his witness statement the appellant does state “I now accept that my marriage to Ms. Cain was a sham, in that I married Ms Cain in order to gain status.”
44. We agree therefore that the judge erred in stating the account of the children’s jointly parented upbringing was inconsistent with the appellant’s position.
The report by Mo Watson
45. Mo Watson is the school counsellor and independent social worker at the school of the second child in respect of whom her report is written. There is a lack of clarity as to the intended purpose of the report. In the appellant’s skeleton argument at First-tier, Ms. Watson’s report is referred to as a “short ISW report” [CB 553/15]. The Grounds of Appeal aver that detailed qualifications of Ms. Watson were immaterial “for the purposes of the expertise (our emphasis) conveyed within the letter.” Both the initial skeleton argument and the grounds therefore suggest the report was advanced as an expert report, however it meets almost none of the criteria in Rule 6 of the Tribunal Rules. The report does not even contain a statement of truth. If the report was to be relied on as an “expert” report, we find the issue the judge raised with respect to Ms. Watson’s qualifications not only material but required under the Rules. Similarly, were this to have been an expert report, information relating to further assessment, support and/or progress made by the child would have been material to any balanced expert assessment.
46. Ambiguity as to the purpose of the report arises from the repeated reference to it as a “letter” although Ms. Watson uses the term “report.” The content of the report is largely a factual account of the child’s presentation and Ms. Watson’s interaction with him, though she does stray into analysis briefly. Her conclusion as to the impact on the child of the appellant’s absence we find to be no more than stating the obvious. If the purpose was simply to evidence the presentation of the child, then the issues as to the qualifications of Ms. Watson, the lack of reference to the specific offending or the ADHD referral would not be material. The question of what weight that should properly attach to this document needs to be considered in light of the report of Ms. Brooks, a properly instructed expert, which contains very similar observations of the child’s presentation and circumstances but in more depth.
47. For the avoidance of doubt, if the report of Mo Watson was intended to be an “expert report” there is no error as the judge was properly identifying procedural defects with the report. If the report was adduced for any other purpose, we find that the judge’s treatment of the report fell within the ambit of the judge’s evaluative discretion and find no error of law.
Children’s lack of awareness as to the risk of the appellant’s deportation
48. It is clear to us that the judge took account of the children’s lack of awareness as to the risk of the appellant’s deportation. At [45] the judge states “it will be very difficult for the children to understand why the appellant will not return to day to day involvement in their lives.”
49. Alongside this factor, at [44], [45] and [46], the judge weighed positive and potentially mitigating factors, not least of which is the significant support available to the children. The children’s schools in particular have a demonstrated knowledge and understanding of the particular needs of the children and have been able to offer tailored support. The children’s uncle and family friends are also able to provide emotional support to the children and their mother. There is no evidenced based reason to believe that the practical or emotional support currently being offered will not continue. Whilst Ms. Brooks reflected the concern of the middle child’s school that they may not be able to manage his behaviour should it escalate in response to his father’s deportation [CB 503] she did not provide an explanation why this is so, nor is it referred to in the letter from the child’s head of school. Ms. Brooks acknowledges that the middle child who has a higher level of need and is struggling, is nevertheless responding to the school’s support and developing positive coping strategies [CB 498]. We therefore agree with the judge’s observations at [44] at to the potential inability of the school to provide sufficient support to the middle child “is based on no more that speculation and does not take into account the progress made by the appellant’s second child in the appellant’s absence.”
50. We find that the judge properly carried out a balancing exercise, weighing distress of the news of appellant’s deportation with the support available mitigate the impact of the shock. Consequently we do not find an error of law in the judge’s treatment of the children’s current lack of awareness of the risk of the appellant’s deportation.
Whether the errors of fact were material
51. Having accepted that the judge did make factual findings which were not open to her on the evidence, we turn to consider whether those errors either singularly or cumulatively are material. We remind ourselves that the Judge’s decision is to be read looking at the substance of its reasoning and not with a fine tooth-comb or like a statute in an effort to identify errors (see the judgment of Sales LJ in Kamara v Secretary of State for the Home Department [2016] EWCA Civ 813 at [18]).
The Appellant’s partner’s mental health
52. We found that the judge did err in stating that Dr. Galappathie did not acknowledge that she accessed support for her mental health. However, this is only one of the factors the judge took into account in his assessment at [36] of Dr. Galappathie’s report. As we set out at [31-40] above, we found that the judge properly undertook evaluative exercise in assessing Dr. Galappathie’s report. We therefore find that this error immaterial.
53. We did find that the judge erred in stating there was no evidence the appellant’s partner’s mental health had deteriorated since January 2024. However, we note that the report from the Independent Social Worker, Kathy Brooks, was completed in September 2024, two months after Dr. Galapathie assessed the appellant’s partner. At the time of writing her report Ms. Brooks observed that the appellant’s partner was struggling but did not consider her parenting capacity to be compromised. It can be reasonably inferred from this and the absence of further referral to her GP (recalling again the appellant’s partner’s stated willingness to engage with her GP) that there was no marked deterioration in the appellant’s partner’s mental health at the time the report was written. Therefore whilst the judge erred in saying there was no evidence of deterioration, in light of the appellant’s partner’s presentation at the time of Ms. Brook’s report, that error is immaterial.
54. Ultimately, Dr. Galappathie’s conclusion at [112] was that the appellant’s partner would face “significant difficulty” in caring for the children if the appellant is deported. Of this we have no doubt. However, we find that the Judge was entitled to conclude that the significant difficulty the appellant’s partner will inevitably face does not reach the elevated threshold required to meet the unduly harsh test when considered in the context of mitigating factors including the support that is available to her from the children’s school and family, her willingness and ability access mental health support and her own professional knowledge should her mental health decline. These are factors, which the Judge identified and which were not subject to challenge.
55. Consequently, we find that the judge’s factual errors in respect of the appellant’s partner’s mental health are immaterial.
The impact on the children of the Appellant’s deportation
56. With respect to the judge’s error in stating the appellant continued to deny the offence of which he was convicted, it was averred that this error is relevant to the judge’s assessment of the appellant’s overall credibility. However, Ms. Ferrin accepted that there were no other credibility findings infected by this error. We find that the judge’s decision was not predicated on an assessment of the appellant’s credibility but rather on an evaluation of the body of evidence, including expert evidence. We therefore do not find this error to be material.
57. The judge’s error with respect to there being no concerns as to the youngest child needs to be considered in the context of the generally positive assessment of his presentation in Ms. Brooks’ report. Whilst it was not correct to say there were no concerns, it is right to say that the concerns are limited at this stage and there is no suggestion of him needing any form of assessment or intervention. As the error is best characterised as presenting an incomplete picture than a false one, we do not find this error to be material.
58. Further or in any event, in considering whether the judge erred in his findings as to the impact on the children of the appellant’s deportation, it is important to set out Ms. Brooks’ conclusion with respect to the appellant’s partner’s parenting capacity in the event of the appellant’s deportation at [CB 503]:
Ms. Bellow will I believe continue to do all she can to protect and parent the children and will do many things well, she will struggle and increasingly so, should Mr. Ojukutu not return home soon. At this point I believe the parenting would still be good enough that the family would not be eligible for children’s social care support, the threshold for which are high, but would be sufficiently compromised that the family will “just manage” rather than flourishing.
59. We echo the judge at [46] and “do not underestimate how difficult will be for the appellant’s partner and children to live without the daily presence” and acknowledge that difficulty will be compounded by having to come to terms with the reality of their long-term separation. However, we consider that the Judge was entitled to find that Ms. Brooks’ conclusion falls short of evidencing the elevated threshold of the “unduly harsh” test.
46. The best interests of the children must be a primary concern and the judge acknowledged at [46] that it is in the best interests of the children to be raised by both parents. We find that the judge properly weighed in the balance the best interests of the children with the public interest in deporting foreign criminals.
47. Noting in particular the conclusions of Ms. Brooks and Dr. Galappathie, together with evidence of other factors notably support available to the family, we find the judge was entitled to find that the appellant did not establish that his deportation would be unduly harsh on his children and the errors made were immaterial to the decision.

Notice of Decision
The appellant’s appeal is dismissed. The decision of the First-tier Tribunal did not involve a material error of law and stands.

Martha Walsh

Deputy Judge of the Upper Tribunal
Immigration and Asylum Chamber

7 May 2025