Tribunal decisions

The decision

IN THE UPPER TRIBUNAL
IMMIGRATION AND ASYLUM CHAMBER
Case No: UI-2025-000119

First-tier Tribunal No: HU/05183/2021

THE IMMIGRATION ACTS

Decision & Reasons Issued:
On the 12 August 2025

Before

UPPER TRIBUNAL JUDGE BRUCE
DEPUTY UPPER TRIBUNAL JUDGE MOXON

Between

SECRETARY OF STATE FOR THE HOME DEPARTMENT
Appellant
and

GAB
(ANONYMITY ORDER MADE)
Respondent

Representation:
For the Appellant: Mrs Arif, Senior Home Office Presenting Officer
For the Respondent: Mr Ul-Haq, Counsel

Heard at Phoenix House (Bradford) on 23 July 2025

Order Regarding Anonymity

Pursuant to rule 14 of the Tribunal Procedure (Upper Tribunal) Rules 2008, the Appellant 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. Failure to comply with this order could amount to a contempt of court.

DECISION AND REASONS

Introduction

1. The SSHD appeals, with permission, a decision of a Judge of the First-tier Tribunal (‘the Judge’), dated 20th November 2024. It is argued that the Judge materially erred in law in concluding that GAB’s deportation from the United Kingdom would result in a disproportionate breach of her Article 8 family life.

2. We shall hereafter refer to the parties as they appeared before the First-tier Tribunal.

Background

3. The Appellant entered the United Kingdom on 1st June 2002 as a visitor and was granted indefinite leave to remain on 18th January 2006.

4. On 23rd January 2009 she was convicted of possession of class A drugs, namely cocaine and heroin, with intent to supply, and was sentenced to a Community Order. Later that year, on 13th July 2009, she was conditionally discharged for shop theft and breaching the Community Order. On 14th February 2014 she was again convicted of possession of class A drugs, namely cocaine and heroin, with intent to supply, and was sentenced to three years custody.

5. The Home Office served a deportation order upon the Appellant, dated 24th September 2014, in which it was outlined that her deportation was not considered to be a disproportionate breach of her Article 8 ECHR rights.

6. The Appellant’s appeal against that decision was dismissed by a Judge and non-legal member sitting in the First-tier Tribunal (“the 2015 Tribunal”) in a determination dated 4th May 2015. At that time, the Appellant was a serving prisoner.

7. There was no dispute that she is the mother of two British Citizen children, born in the United Kingdom. Her son (“S”) was born in 2008, and has a diagnosis of autism, and her daughter (“D”) was born in 2013. By that time her relationship with their father had ended and she was in a relationship with a Jamaican citizen (“P”) who was caring for the children during her incarceration and, detailed within the Judge’s determination, had taken on the role as their father.

8. The 2015 Tribunal concluded that it would not be unduly harsh for S and D to either remain in the United Kingdom in the absence of the Appellant or to join her in Jamaica. It was also noted that the Appellant has an older child who remains in Jamaica.

9. The 2015 Tribunal had regard to an OASYS report, dated 2nd July 2014, which assessed the Appellant as posing a low risk of reoffending but a medium risk of harm to children given the risk of her resuming drug use.

10. At paragraph 36, the 2015 Tribunal concluded:

“…there is no certainty that the appellant will be a good mother in the future, despite her strong progress and achievements within the custodial environment with the benefit of a high level of support from staff at HMP Eastwood Park”;

11. The 2015 Tribunal assessed that the Appellant’s older child had made good progress in the Appellant’s absence and, at paragraph 51, noted:

“…the consequences of her return to the family unit are not easy to predict”

12. Permission to appeal was refused and the Appellant became appeal rights exhausted on 15th October 2015.

13. Nevertheless, the Home Office did not deport the Appellant and so she remained in the United Kingdom and, over six years later, on 30th November 2021, the Respondent made a decision to refuse to revoke the deportation order on the basis that deportation would not result in a disproportionate breach of the Appellant’s Article 8 ECHR rights.

14. The Appellant successfully appealed that decision before the Judge. In his determination, dated 20th November 2024, the Judge considered statute laid by Parliament, particularly section 117C(5) of the Nationality, Asylum and Immigration Act 2002 and section 55 of the Borders, Citizenship and Immigration Act 2009, and concluded that the Appellant satisfies the statutory exception to deportation, namely that the effect of her deportation on the S and D would be unduly harsh. He concluded that it would be unduly harsh for them to relocate to Jamaica with her or to remain in the United Kingdom in her absence.

15. The Home Office sought to appeal the decision in grounds dated 25th November 2024. Ground 2 argued that the Judge failed to adopt the 2015 Tribunal decision as his starting point, as required pursuant to Devaseelan [2002] UKIAT 000702.

16. Permission to appeal, limited to Ground 2, was granted by another judge of the First-tier on 12th December 2024:

“Ground 2 argues that the FTTJ erred in failing to make any reference to the previous tribunal decision. At para. 10, the FTTJ acknowledged that a previous appeal had been heard and dismissed. At para. 51 the FTTJ refers again to the ‘previous tribunal’. The FTTJ was therefore alert to the findings of a previous tribunal. However, it is arguable that there is a lack of sufficient engagement with the previous decision and the findings therein which serve properly to be the starting point and an explanation as to why those findings no longer stand…… Permission is granted on ground 2 only. The other grounds are not arguable.”

The hearing

17. The documentation was contained within the 653-page electronic composite bundle. In addition, we had sight of the Respondent Review that had been before the Judge and a skeleton argument provided by the Appellant in preparation of the hearing before us.

18. In oral submissions, Mrs Arif argued that the 2015 Tribunal had made clear findings and that the Judge’s failure to engage with Devaseelan amounts to a misdirection of the law. His failure to explain why he was departing from the 2015 Tribunal’s determination constitutes inadequate reasons.

19. In response, Mr Ul-Haq contended that the Respondent itself, before the Judge, had accepted that matters had “moved on” since the decision of the 2015 Tribunal. It was accepted by the Respondent that it would be unduly harsh for S and D to be required to leave the United Kingdom, whereas the 2015 Tribunal had determined otherwise. P did not have immigration status in 2015 but it is now accepted that he has leave to remain on account of his family life with S and D. D’s diabetes was not diagnosed until after 2015. The 2015 Tribunal noted that the Appellant has an older son who, at that time, remained in Jamaica, but who now resides in the United Kingdom.

Decision and analysis

20. Throughout consideration of the appeal, we have had regard to the guidance provided by the Court of Appeal in Volpi v Volpi [2022] EWCA Civ 462 at paragraph 2:

"The approach of an appeal court to that kind of appeal is a well-trodden path. It is unnecessary to refer in detail to the many cases that have discussed it; but the following principles are well-settled:
i. An appeal court should not interfere with the trial judge's conclusions on primary facts unless it is satisfied that he was plainly wrong.
ii. The adverb "plainly" does not refer to the degree of confidence felt by the appeal court that it would not have reached the same conclusion as the trial judge. It does not matter, with whatever degree of certainty, that the appeal court considers that it would have reached a different conclusion. What matters is whether the decision under appeal is one that no reasonable judge could have reached.
iii. An appeal court is bound, unless there is compelling reason to the contrary, to assume that the trial judge has taken the whole of the evidence into his consideration. The mere fact that a judge does not mention a specific piece of evidence does not mean that he overlooked it.
iv. The validity of the findings of fact made by a trial judge is not aptly tested by considering whether the judgment presents a balanced account of the evidence. The trial judge must of course consider all the material evidence (although it need not all be discussed in his judgment). The weight which he gives to it is however pre-eminently a matter for him.
v. An appeal court can therefore set aside a judgment on the basis that the judge failed to give the evidence a balanced consideration only if the judge's conclusion was rationally insupportable.
vi. Reasons for judgment will always be capable of having been better expressed. An appeal court should not subject a judgment to narrow textual analysis. Nor should it be picked over or construed as though it was a piece of legislation or a contract."

21. It is not the role of the Upper Tribunal to substitute its own view in the absence of an error of law and we have been particularly careful to remind ourselves of the judgment of Baroness Hale at paragraph 30 of AH (Sudan) v Secretary of State for the Home Department [2007] UKHL 49:

“[The decisions of expert tribunals] should be respected unless it is quite clear that they have misdirected themselves in law. Appellate courts should not rush to find such misdirection’s simply because they might have reached a different conclusion on the facts or expressed themselves differently.”

22. The grant of permission is limited to the argument that the Judge failed to take the 2015 Tribunal’s decision as his starting point and therefore his failure to follow the guidance within Devaseelan [2002] UKIAT 000702, in which it was held, at paragraph 39:

“(1) The first Adjudicator's determination should always be the starting-point. It is the authoritative assessment of the Appellant's status at the time it was made. In principle issues such as whether the Appellant was properly represented, or whether he gave evidence, are irrelevant to this.

(2) Facts happening since the first Adjudicator's determination can always be taken into account by the second Adjudicator. If those facts lead the second Adjudicator to the conclusion that, at the date of his determination and on the material before him, the appellant makes his case, so be it. The previous decision, on the material before the first Adjudicator and at that date, is not inconsistent.

(3) Facts happening before the first Adjudicator's determination but having no relevance to the issues before him can always be taken into account by the second Adjudicator. The first Adjudicator will not have been concerned with such facts, and his determination is not an assessment of them.”

23. It is correct that the Judge did not reference Devaseelan nor did he expressly state that the 2015 Tribunal’s decision was his starting point. Those are regrettable omissions. However, we remind ourselves of paragraph 2(vi) of Volpi. Further, whilst paragraph 2(iii) relates to the lack of necessity to mention every piece of evidence, this must equally apply to each and every legal authority. The Judge was sitting as an expert tribunal and it is unarguable that he would have been unaware of the principles within Devaseelan, which are frequently cited and applied in appeals before the First-tier Tribunal. Any doubt as to whether he was live to the principles of Devaseelan are removed by the fact that, at paragraph 18 of his determination, the Judge summarised the law by stating that it was “…as set out in the respondent and appellant documents”. Those documents include the Respondent’s November 2021 decision which, at paragraphs 9-11, references Deveseelan and the 2015 Tribunal’s determination.

24. The 2015 Tribunal’s determination was contained within the Home Office bundle that was before the Judge and he confirmed, at paragraph 27 of his determination, that he had considered all of the evidence and, at paragraphs 10 and 51, expressly referenced the 2015 Tribunal’s determination.

25. The Judge’s appreciation of the fact that he was to treat the 2015 Tribunal’s decision as his starting point, and to consider evidence that has arisen thereafter, is evident from a careful and holistic reading of his determination.

26. He acknowledged several features of the current circumstances that were different to those at the time of the 2015 Tribunal’s determination. This included the fact that P now has leave to remain in the United Kingdom (paragraph 34); it is accepted that it would be unduly harsh for S and D to relocate to Jamaica (paragraph 51); and the Appellant’s older son now lives in the United Kingdom (paragraph 51).

27. At paragraph 32 he refenced the 2014 OASYS report and noted that:

“..due to the passage of time it is now of some significant age”.

28. At paragraph 43 he outlined supportive testimonials and at paragraph 44 stated:

“I have noted above that there has been no offending since the last conviction in 2014. Notwithstanding whatever was her date of release from that sentence the fact therefore remains that the appellant has not offended in a decade. She is patently now a considerably older adult. She is now 47 years old.”

29. At paragraph 46 he stated:

“The children are now considerably older than they were at the time of her imprisonment. On any analysis (and it was not disputed) their mother is a central pillar of their lives. At the time of her imprisonment [S] was around 5 and [D] was only a few months old. [S] is now 16 and [D] is 11….”

30. He went on, at paragraph 48, to note D’s health difficulties, which were not considered within the 2015 Tribunal’s determination, as her diabetes was not diagnosed until the following year:

“[D] is a type 1 diabetic. As the appellant is at home while [P] is out at work it is the appellant who invariably is the one who assists the child with her insulin and he cheques [sic] on her during the day night. The appellant and [P] acknowledge that they have both been provided with training by the NHS how about dealing with the condition of their daughter. They also both separately acknowledged in oral evidence that her school is fully aware of her situation and has measures in place to address them. However the reality is that that as he is inevitably out of work it is the appellant who in practice deals with any issues which arise. The position of the respondent can be summarised in relation to this that the father would be able to provide any treatment or assistance that the mother can or currently does. This was put to him in cross examination and while he accepted it he also explained that if the appellant were not there that no one else would be able to provide the insulin assistance and monitoring to their daughter and he would in all likelihood have to give up his employment in order to be able to take over the full time duties which his partner the appellant currently provides to the girl.”

31. At paragraph 51, the Judge notes that D had only been a baby when the Appellant was in prison, which is at the time of the 2015 Tribunal’s determine. He stated:

“…As I have noted above [D] has been with her mother for the majority of our life having only been separated when she was a very young child and in reality she probably does not remember having been separated from her mother.”

32. At paragraph 50, the Judge summarised an update on S’s circumstances:

“[S] is autistic. He is now attending further education college. Although he is doing well it is also the case that he requires assistance both from the college as well as from both supportive parents. Again as is the position with his younger sister, although his father is clearly supportive he is inevitably out at work and the practical day-to-day assistance to the boy comes from the appellant.”

33. It is abundantly clear, by the Judge’s reference to the law being as detailed within the papers and his reference to the 2015 Tribunal’s determination, together with his focus upon events that have occurred subsequently, that he was mindful of the requirement to consider the earlier decision as his starting point and then take into account facts that have happened thereafter.

34. As such, there is no error of law in the Judge’s determination.

35. Even had the Judge failed to consider the 2015 Tribunal’s determination as his starting point, his focus on events that have occurred since then, and the fact that circumstances are considerably different, is such that any consequent error of law is not material.

36. At the time of the 2015 Tribunal’s determination, the Appellant was in prison. The 2015 Tribunal considered the 2014 OASYS report and the concern whether the Appellant was capable of being a good mother, and also stated: “…the consequences of her return to the family unit are not easy to predict”. As of 2024, as outlined by the Judge, the Appellant had been in the family home for about nine years; had not reoffended; and is a “central pillar” in her children’s lives. The circumstances in 2024 are far removed from those in 2015, as is adequately explained by the Judge.

37. The conclusion is further supported by the fact that there has been no dispute that there are changes in the Appellant’s circumstances since the decision of the Respondent’s determination, including:

a. It is now accepted that removal of the children from the United Kingdom would be unduly harsh upon them;
b. P now has leave to remain in the United Kingdom;
c. The Appellant’s older son now resides in the United Kingdom; and
d. D has been diagnosed with type 1 diabetes.

Conclusion

38. The Judge’s determination is not vitiated by any error of law, either material or otherwise.

Notice of Decision

The decision of the First-tier Tribunal did not involve the making of an error on a point of law. The decision shall stand.

DUTJ Moxon
Deputy Judge of the Upper Tribunal
Immigration and Asylum Chamber

24th July 2025