Tribunal decisions

The decision

IN THE UPPER TRIBUNAL
IMMIGRATION AND ASYLUM CHAMBER
Case No: UI-2024-005687
First-tier Tribunal No: (HU/51086/23)

THE IMMIGRATION ACTS

Decision & Reasons Issued:

8th May 2025

Before

UPPER TRIBUNAL JUDGE BRUCE
DEPUTY UPPER TRIBUNAL JUDGE DOYLE

Between

SECRETARY OF STATE FOR THE HOME DEPARTMENT
Appellant
AND

MUHAMMAD ASIF KARIM
Respondent

Representation:

For the Appellant: Mr Mullen, Senior Home Office Presenting Officer
For the Respondent: Mr Winter, Advocate instructed by SJK Solicitors

Heard in Edinburgh on 26 March 2025

DECISION AND REASONS
1. The Respondent is a national of Pakistan born on 6 June 1981. On the 25th October 2024 the First-tier Tribunal allowed his appeal on human rights grounds with reference to Article 8 ECHR. The Secretary of State now has permission to appeal against that decision.
2. The Respondent arrived on a visit visa in 1998 and never went home. The Secretary of State now wishes to deport him. That is because he is a serious criminal. He has been convicted on seven occasions of a total of 21 offences. The most serious of these relate to the possession with intent to supply of Class A drugs (heroin and cocaine), for which he received a custodial sentence of 4 years. He had, following this conviction, managed to avoid deportation by becoming a witness for the prosecution in a murder trial. In recognition of his testimony he was granted a period of Discretionary Leave (DL) and entered into the Witness Protection Scheme (WPS). He was expelled from the WPS when he committed more crimes. A deportation order was signed on the 24 July 2015 which revoked his DL. That order notwithstanding, he was not deported, and in 2021 made further submissions amounting to a fresh human rights application. On 23 July 2023 the Secretary of State issued the decision that is the subject of this appeal, to refuse to grant leave on human rights grounds.
3. The only way in which the Respondent could avoid deportation would be by demonstrating that the very high threshold in s117C(6) of the Nationality, Immigration and Asylum Act 2002 was met, that is to say by establishing that there are “very compelling circumstances” in his case which would render the deportation a disproportionate interference with his Article 8 rights. In its written decision the First-tier Tribunal found that this high test was met, and the appeal was allowed.
4. The Secretary of State now has permission to appeal against that decision on grounds settled by the Specialist Appeal Unit. The grounds are:
i) That the Tribunal gave “inadequate” reasons for finding that the Respondent’s deportation would have unduly harsh consequences for his son. In particular:
a) There is no evidential basis for the Tribunal’s conclusion that the child’s relationship with his father is fundamental to his identity;
b) There is no evidential basis for the finding that the deportation would have adverse consequences for the child’s education;
c) The Tribunal has failed to identify why the deportation would have “severe” or “bleak” consequences for the Respondent’s child and has therefore misdirected itself for a failure to apply the approach taken in MK (Sierra Leone) [2015] UKUT 223 (IAC) and approved in HA (Iraq) [2022] UKSC 22.
ii) That the Tribunal gave “inadequate” reasons for finding that there were “very compelling circumstances” not to deport the Respondent. In particular:
a) It is unclear what factor or factors there were in the Respondent’s favour “over and above” the finding that the deportation would be unduly harsh for the Respondent’s child;
b) Insofar as the decision can be read to identify the Respondent’s mental health issues as being the factor that exists “over and above” the unduly harsh ‘exception’, these finding are contradicted by the Tribunal’s own conclusion that there are not very significant obstacles to his integration in Pakistan.
Discussion and Findings
5. In his oral submissions on behalf of the Secretary of State, Mr Mullen acknowledged that there is in effect only one ground of appeal: that there is a lack of reasoning in the decision below. Whilst he agreed that the written grounds veered towards an allegation of perversity, he declined to nail his colours to that mast, and we find that he was right to do so. There are plainly factors in this case which could cumulatively lead a properly directed Tribunal to find the burden of proof to be discharged. For instance, regard might be had to the following matters: the Respondent enjoys a parental relationship with the British child; he himself has lived here since childhood and has now spent substantially more than half his life here (over 26 years); although there is a particularly strong public interest in removing someone who habitually committed crimes over a 14 year period, his last offence was committed over ten years ago and he has complied with all probation and rehabilitation requirements, as well as the reporting conditions imposed on him by the Home Office; he has throughout the relevant period suffered from significant and debilitating mental ill-health; and although this was not a factor that the First-tier Tribunal thought significant, it is right to note that there has been an inordinate delay – over ten years - on the part of the Secretary of State in effecting this deportation. There was also evidence that the Respondent was himself a survivor of violence, trauma and criminality, all of which had played a role in his troubled youth: CI (Nigeria) v SSHD [2019] EWCA Civ 2027.
6. All of that said, here we must focus on the First-tier Tribunal decision, and the Secretary of State’s criticisms of it.
7. We begin with the finding that the Respondent’s deportation would have unduly harsh consequences for his son. The boy gave live evidence that his father taught him about various matters including “religion, culture and his father’s life and upbringing in Pakistan” [FTT §38] and the Tribunal concluded that these are “matters fundamental to his identity” [FTT §41], and clearly weighed them in the balance when considering whether the deportation would be unduly harsh. The Secretary of State contends before us that there was no evidential foundation for this finding, which she submits to be “pure conjecture”.
8. It is correct to say that there was no evidence on this matter from, for instance, a social worker or psychologist. We are not however persuaded that there needed to be. The practice of producing reports from such experts has developed in this Chamber precisely in order to give the child a voice in proceedings such as these. Where such a report includes expert opinion on, for instance, the psychological consequences of separation, they will indeed be best evidence. They are not however the only evidence that a tribunal is entitled to take into account. Here the child in question had competence to speak for himself. He gave live evidence about why it is important to him that his dad remains in the United Kingdom. In doing so he made reference to the fact that his dad is able to talk to him about Islam, about Pakistani culture and his own upbringing. We do not think it controversial to suggest that such matters would have significance for this child, who is himself of Pakistani origin, but is being largely brought up by his white British mother. We are therefore satisfied that the Tribunal was entitled to place weight on that evidence.
9. The same can be said in respect of the Secretary of State’s second point under this heading, which relates to the finding that there would be an adverse impact on the child’s education should his father be deported. The grounds are again couched in terms of there being “no” evidential basis for this finding. Again, that is not accurate. The evidence to this effect came from the child’s mother. As far as we are aware she is not a teacher; nor is she a social worker. She is however someone who has had the opportunity over the last 15 years to observe her son on a day-to-day basis. Given the history, she has understandably taken especial care to monitor and observe her son’s interactions with his father. It was her evidence that she could see a positive impact from this interaction. The Respondent could talk to his son about studying, and job choices; he could teach him to shave and talk to him about things a mother could not [FTT §39]. She feared that if his father was deported, his education would suffer [FTT §43]. Whilst we accept that this is not expert opinion, it is nevertheless important evidence and it certainly cannot be said that the Tribunal acted irrationally in giving weight to it.
10. We are not therefore satisfied that either of these criticisms of the Tribunal’s reasoning are made out.
11. The final challenge to the Tribunal’s findings on the ‘unduly harsh’ exception is of a more general nature. Mr Mullen submits that the Tribunal simply did not do enough to explain to the Secretary of State why this high test is here found to be made out.
12. In Scotland the leading authority on the duty to give reasons is Wordie Property Ltd v Secretary of State for the Home Department [1984] SLT 345. The test is whether the “informed reader is left in real and substantial doubt” as to why the decision maker reaches the decision that he does. The Secretary of State submits that she is left in such doubt about how the Tribunal reached its conclusion that the consequences of deportation would be ‘bleak’ for this child, that being the adjective employed by McCloskey J (as he then was) in his much-approved formula in MK (Sierra Leone), when explaining what the ‘unduly harsh’ test required.
13. The first matter to note is that the Tribunal expressly directs itself to the test in MK (Sierra Leone), in the context of its discussion in HA (Iraq). This self-direction is immediately followed in the decision by the following passages:
47. In terms of the “stay” scenario, I accept that the appellant has a genuine and subsisting relationship with his son. I further accept that this is of substantial benefit to the child and that it is in his best interests that his father remains in his life. If the appellant were deported, A would therefore be deprived of the regular face to face contact with his father and the guidance and support he has offered. Whilst it could be said, given the parties’ regular WhatsApp conversations, that the relationship could carry on via modern means in some form, this will not be a substitute for face-to-face contact and spending time together on trips. If the appellant was to be deported there is little prospect that he would see his son again for a number of years. Whilst I am cognisant that the parties see each other only comparatively rarely, twice a month, I am satisfied that these meetings bring real value to A and are of significance at a pivotal part of his life. Clearly the appellant’s current circumstances, and the wider family dynamic (R is said to have a partner) will limit the time he can spend with his son.
48. I accept that there is a risk of an adverse impact on A’s progress at school and study. The child, A, is blameless and his father has now re-entered his life and provides significant benefit to it. The appellant is the only father figure in A’s life. A is unaware of his father’s crimes and why he is to be removed from his life. It is not difficult to apprehend that this will cause distress. In my judgement, having carefully considered the evidence, I am satisfied that the effect of the appellant’s deportation will be unduly harsh on A.
14. We have considered Mr Mullen’s submissions carefully, in particular his emphasis on the point made in the Secretary of State’s favour by Judge Curtis of the First-tier Tribunal when he granted permission to appeal in this matter: “the deprivation of face-to-face meetings between those who are the subject of a deportation order and their family members is a natural consequence of such an order (in the context of the ‘stay scenario’) and arguably would not, by itself, create unduly harsh consequences” (our emphasis). Having done so we are nevertheless driven to the conclusion that we are unable to interfere with this decision. It is true that these are not facts upon which every tribunal would have found the exception made out. It is also true to say that many cases with more extreme facts have not succeeded. Each case must however be evaluated on its own merits, and in this adversarial process we are constrained to consider the grounds as they are advanced.
15. Here we have a First-tier Tribunal which has properly directed itself to the relevant tests. There can be no criticism of the Tribunal’s legal self-direction, and it is clear to us from the structure of the decision that it firmly had in mind the MK direction when it reached the conclusions that we set out above. We do not accept that the Secretary of State can be left in real and substantial doubt about why the decision is as it is: for reasons we discuss above at our §7-9, the Tribunal accepts that this is a relationship which is of substantial benefit to the child; the consequence of deportation will make it extremely unlikely that his son will see him again for a number of years; these are “pivotal” years in the child’s development; the deportation would likely cause distress. Whilst we would broadly agree with the observation made by Judge Curtis, this is of course not a case where physical contact was the only factor considered. We understand that the Secretary of State does not agree with the Tribunal’s conclusions, but this is not a basis upon which we can interfere with its decision.
16. We therefore uphold the Tribunal’s conclusion that the ‘unduly harsh’ exception is made out.
17. We now turn to the Secretary of State’s critique of the s117C(6) balancing exercise. It is submitted that it is unclear what factor or factors there were in the Respondent’s favour “over and above” the finding that the deportation would be unduly harsh for the Respondent’s child; insofar as the decision can be read to identify the Respondent’s mental health issues as being the factor that exists “over and above” the unduly harsh ‘exception’, these finding are contradicted by the Tribunal’s own conclusion that there are not very significant obstacles to his integration in Pakistan”.
18. The first submission made is perhaps immediately undone by the second, since that appears to acknowledge that the Respondent’s mental health issues are one matter identified as existing “over and above” the ‘unduly harsh’ exception. That is indeed the case. The Tribunal conducts a lengthy and detailed analysis of the medical evidence before it, which came inter alia from a Consultant Psychiatrist employed by the prison service who had had the opportunity to evaluate the Respondent in person as well as review his medical records going back 10 years, records which demonstrated his “engagement with a variety of mental health services and professionals over a prolonged period”. The core findings of this Psychiatrist, Dr Ehjaz, are summarised at the First-tier Tribunal’s paragraph 53:
“53.1. The appellant’s mental health conditions, given various “diagnostic labels” likely arose and were perpetuated by a number of negative experiences and traumatic life events. These include domestic violence and abuse during the appellant’s childhood, a violent robbery, childhood sexual abuse, social isolation and financial/housing insecurity, and relationship issues within the UK.
53.2. The appellant’s mental health issues commenced in childhood. He has been treated, more recently, with various psychotropic medications, including antidepressants (such as citalopram and mirtazapine) and antipsychotics (such as aripiprazole and olanzapine). He continues to be prescribed mirtazapine and olanzapine and is likely to require psychotropic medications for the foreseeable future.
53.3. If unable to access medication, then it is likely that the appellant’s mental health will deteriorate. Given a history of suicide attempts there is a significant chance, if deported, that the appellant may again become suicidal and attempt to end his life.
53.4. The appellant continues to fulfil the criteria for Recurrent Depressive Disorder and Post Traumatic Stress Disorder, his prognosis depends on compliance with medication, and engagement with therapy. His social support and contact with his son remain important factors. Deportation would likely result in a poor prognosis; given the loss of regular contact with his son, concerns regarding personal support in Pakistan, and access to medications/psychological therapy.
53.5. Return to Pakistan would risk exacerbation of the appellant’s PTSD given the negative experiences he suffered there. The attitude in Pakistan to mental health is poor.
53.6. The appellant is at low risk of violent or non-violent reoffending. There has been a lack of offending now for many years. “[The appellant] does not have an antisocial personality; over the last decade he has undergone significant psychological maturation; he has addressed his substance misuse issues; he has now expressed pro-social plans; his insight is reasonable; he has no violent intent or desire for general offending; he is under treatment and is willing to engage with further support.”
19. We note that in addition to its consideration of these matters, the Tribunal also had regard, in its analysis of whether there were “very compelling circumstances” in this case, to the fact that the Respondent has had no convictions in the past decade and that in the expert opinion of an Independent Social Worker he presented a low risk of reoffending. It plainly had regard to matters “over and above” the Respondent’s relationship with his son. The first limb of the Secretary of State’s challenge is in these circumstances entirely without merit.
20. That leaves this. Having reviewed the extensive psychiatric evidence, the Tribunal concluded that it could not be satisfied that there would be “very significant obstacles” to the Respondent’s integration in Pakistan. In fact, both parties agreed, this was not a test which needed to concern the Tribunal. It is one limb of the three-part ‘private life’ test set out in s117C(4) Nationality Immigration and Asylum Act 2002 which the Respondent had conceded from the outset he could not hope to meet, since he had not spent more than half of his life in the UK with lawful leave. In any event, the Tribunal considered it, and found that the evidence fell short of establishing that this high test could be met, since it had not been proven that the Appellant would be without any support from family and friends in Pakistan. The Secretary of State now asks us to find that conclusion to be irreconcilable with the Tribunal’s self-direction that the Appellant’s mental ill-health was relevant to whether there were “very compelling circumstances” in this case. We reject this submission as utterly untenable. The whole point of the global assessment in s117C (6) is that there decision makers must have regard to any matter relevant to whether the deportation is necessary and proportionate. The Tribunal might not have been satisfied that the test in s117C(4)(c) was made out, but, as it puts it: “that is not to say there will not be obstacles to the appellant’s re-integration”. These were plainly matters relevant to the proportionality balancing exercise that it was ultimately required to undertake.

Decisions
21. The decision of the First-tier Tribunal is upheld, and the Secretary of State’s appeal dismissed.
22. There is no order for anonymity in this matter.

Upper Tribunal Judge Bruce
Immigration and Asylum Chamber
4th May 2025