Tribunal decisions

The decision

IN THE UPPER TRIBUNAL
IMMIGRATION AND ASYLUM CHAMBER
Case No: UI-2025-000156

First-tier Tribunal No: HU/01977/2024

THE IMMIGRATION ACTS

Decision & Reasons Issued:

18th June 2025

Before

UPPER TRIBUNAL JUDGE HANSON
DEPUTY UPPER TRIBUNAL JUDGE MOXON

Between

MZ
(ANONYMITY ORDER MADE)
Appellant
and

SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: Ms S Khan, instructed by Qore Legal.
For the Respondent: Ms Rushforth, a Senior Home Office Presenting Officer (remote).

Heard at Phoenix House (Bradford) on 30 May 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

1. Both panel members have contributed to the decision.
2. In a determination promulgated on 11 April 2025 the Upper Tribunal found a judge of the First-tier Tribunal had materially erred in law in concluding that the Appellant’s deportation from the United Kingdom would result in a disproportionate breach of his Article 8 family life.
3. It was recognised by the Upper Tribunal that the two relevant issues requiring further consideration and determination are whether the Appellant can rely upon Exception 2 to be found in section 117 C (5) of the Nationality, Immigration and Asylum Act 2002 (‘the 2002 Act’) and/or whether there are very compelling circumstances sufficient to outweigh the public interest in his deportation.
4. Section 117 C (5) reads:
Exception 2 applies where C has a genuine and subsisting relationship with a qualifying partner, or a genuine and subsisting parental relationship with a qualifying child, and the effect of C’s deportation on the partner or child would be unduly harsh.
5. It is not suggested the Appellant has a qualifying partner but it is submitted he has two qualifying children.
6. The Appellant is a citizen of Lithuania born on 8 May 1976 who claims to have lived in the United Kingdom since 2017.
7. On 24 February 2022 the Appellant applied for leave under the EU Settlement Scheme (‘EUSS’) and on 25 May 2022 was granted Indefinite Leave to Remain.
8. On 11 July 2024, at Sheffield Magistrates’ Court, the Appellant was convicted of Stalking without fear/alarm/distress, Harassment - breach of a restraining order on conviction, criminal damage to property valued under £5000, for which he was sentenced to 6 months imprisonment.
9. On 1 August 2024 the Appellant was served with a Stage 1 deportation notice.
10. In that document the Secretary of State also noted that the Appellant had previous convictions in the UK between 19 February 2019 to 24 January 2024, having been convicted of one drug offence, three miscellaneous offences and one non-recordable offence. His sentences included a Community Order, Rehabilitation Activity requirement, victim surcharges, costs and compensation.
11. The court extract from the Sheffield Magistrates’ Court in relation to the harassment and breach of a restraining order shows that on 28 June 2024, without reasonable excuse, the Appellant attended the home address of SL which he was prohibited from doing by a restraining order that had been made under section 360 of the Sentencing Act 2020, imposed by South Yorkshire Magistrates’ Court on 11 June 2024.
12. Following the index conviction by the Sheffield Magistrates’ Court the Secretary of State deemed the Appellants deportation to be conducive to the public good, making him liable to deportation under section 3 (5) (a) Immigration Act 1971.
13. The Secretary of State also deemed it to be in the public interest that the Appellant was removed from the United Kingdom without delay, as a result of which the deportation order was made against the Appellant pursuant to section 5 (1) and section 3(5) or 3(6) of the Immigration Act 1971.
14. The Appellant claims he has two children, a boy born in 2011 (‘his son’), and a girl born in 2013 (‘his daughter’).
15. There was some discussion with the advocates at the outset of the hearing as to whether these children were qualifying children which we accept they are, for although being Lithuanian nationals they were granted pre-settled and later settled status. On 24/8/2020 in relation to the Appellant’s son and 29/7/2020 for his daughter under the EUSS.
16. It is not suggested that we are considering whether it would be unduly harsh for the children to go to Lithuania with the Appellant as it is accepted their home is in the UK with their mother, their primary carer, who is separated from the Appellant, in whose care they will remain.
17. The other main individual relevant to this appeal is the Appellant’s brother born in May 1975, (‘the brother’) who is also a national of Lithuania. He is unwell and claims that for the past few months he has lived with the Appellant following the breakdown of his relationship. We shall be referring to the brother further below when considering whether there are exceptional or compassionate circumstances sufficient to outweigh the public interest in the Appellants deportation.
18. A further point which arose was whether the Appellant could be classed as a ‘persistent offender’. In this regard Ms Khan referred us to the decision of the Upper Tribunal in Chege (“is a persistent offender”) [2016] UKUT 00187 (IAC).
19. Ms Rushforth submitted the Appellant remains a persistent offender as he breached conditions after stalking convictions, including a restraining order, and had no regard for the laws of the United Kingdom.
20. Ms Khan submitted the Appellant did not dispute he has been convicted on a number of occasions but argues that this arose as a result of the breakdown of the relationship with his wife (the ex-wife), and that his motivation was that he was trying to salvage the relationship. It was submitted that even if he was a persistent offender in the past, the Tribunal in Chege found that persistent offender status can change, and that as his offending was due to the Appellant not accepting the end of his relationship, a position that had now changed and is distinct as he has moved on and has a girlfriend, he would no longer satisfy this definition. Ms Khan submitted that the Tribunal should find the Appellant is not a persistent offender and therefore that that will be the end of the matter.
21. This matter was considered by the First-tier Tribunal at [16]– [17] of that determination in which it was found:
16. As to the recent offence of stalking, the appellant said he was standing by the house, it was his house, and as to the criminal damage, it was to property that he bought and owned and he repaired it afterwards. He said that he had been ‘taken’ by the police on 5 occasions all relating to the same situation. That ‘situation’ was the breakdown of his family. At the time he broke his restraining order, he wanted to show his position in terms of raising children and what he did not like about it. He did not take responsibility for what he did not do. As to the stalking, it took place in a bad period and it would not happen again. He was trying to reconcile his family but he knows now that will not happen. He is in touch with a new female friend, he can let his past relationship go and move on. He has spoken to his new girlfriend who helps those with alcohol issues and she has given him a lot of advice on how to behave.
17. I find that there are serious concerns about the whether the appellant has been rehabilitated given his oral evidence about his past offending. There is an element of ‘minimising’ or ‘justifying’ his offending. Despite his convictions and a restraining order, he still referred to standing outside ‘his house’ and ‘his property’. If the respondent’s account of his convictions is not wholly accurate, the appellant’s account still indicates that he has been convicted of numerous offences. I accept they were mostly related to the time his marriage broke down. I also accept there is no clear escalation in the type of offending.
22. The Tribunal in Chege found that the question of whether an appellant “is a persistent offender” is a question of mixed fact and law and falls to be determined by the Tribunal at the date of the hearing before it.
23. It was found a “persistent offender” is someone who keeps on breaking the law. The Upper Tribunal in that decision found, however, that that does not mean that he has to keep on offending until the date of the relevant decision or that the continuity of the offending cannot be broken. The Tribunal recognised, as submitted by Ms Khan, that a “persistent offender” is not a permanent status that can never be lost once it is acquired, but that an individual can be regarded as a “persistent offender” for the purposes of the Rules and therefore the 2002 Act even though he may not have offended for some time. The question whether he fits that description will depend on the overall picture and pattern of his offending over his entire offending history up to that date.
24. Although Ms Khan seeks to limit the causation of the Appellant’s offending to his domestic situation at the relevant time, the fact of the matter is that he offended in the way he did because of his beliefs and personality and for reasons other than the relationship breakdown as the other convictions clearly demonstrates. The evidence considered as a whole does not persuade us that we can dispose of this matter as simply as Ms Khan suggests by finding that as the relationship has broken down and the risk of the Appellant offending is no longer an issue, the Appellant cannot satisfy the definition of being a ‘persistent offender’.
25. We also note there is a question of whether the offence caused serious harm to the Appellant’s victim his ex-wife. The Appellant disturbed his victim who woke up to find him in his bedroom next to her bed. Her account of her experiences clearly shows it caused her great distress on an emotional level and also a fear of future recurrence as evidenced by the reference in the Rotherham MBC report to the need for her to ensure windows and doors were locked at all times. See Wilson v Secretary of State the Home Department [2020] UKUT 350 (IAC). We make no finding on this issue, however, as we did not invite submissions from the parties but record the same as obiter observations at this stage.
26. We have no reason to go behind the earlier finding of the First-tier Judge and note there was no successful challenge to the Stage 1 decision, which is where any challenge to the lawfulness of a decision to deport should be raised. We shall proceed on the basis that the Stage 2 decision, which refused the Appellant’s human rights application, contains the evidence we are required to consider and make a decision in relation to, and which we shall continue to treat as a lawful decision – see Vargova v Secretary of State for the Home Department [2024] UKUT 00336 , headnote (5):
5. At the first stage, the Secretary of State issues a deportation decision, in response to which the subject is able to raise objections to the decision to make a deportation order. A Stage 1 decision does not restrict the subject’s right of residence and the safeguards in the Directive have no application or any appeal against the Stage 1 decision. The question to be considered at an appeal against a Stage 1 decision is whether the appeal should be allowed by the tribunal on the basis that there was a breach of domestic law in the process of making the decision to make the order, where the nature of the breach will have been such as to render the decision unlawful i.e. the legal validity of the decision to deport.
27. A further issue raised in the preliminary discussions by Ms Khan related specifically to Vargova (EU national, post-31 December 2020 offending, deportation) and the grant of permission to appeal that decision by the Court of Appeal. After taking instructions no application was made to adjourn to await the outcome of the decision of the Court of Appeal.
The evidence
28.  We have considered all the available evidence with the required degree of anxious scrutiny whether we specifically refer to it below or not.
29. In his witness statement dated 26 November 2024 the Appellant claims he has a very warm and close relationship with his children who miss him if he is not there. The Appellant claims that when he was in prison the children were crying and lost without him and claims that their whole world was ruined [7].
30. The Appellant claims his son is very interested in sport and that he paid his training fees at a local football club, purchased several football related items for him, attended his son’s tournaments, and supported him during football matches. He also claims his daughter enjoys sport and used to take tennis, swimming and gymnastics classes twice a week.
31. The Appellant also claims he frequently purchases gifts for the children, took cash to them, and took them to sporting activities.
32. The Appellant states his children have committed no crime and that they view him as the only stable male parental figure in their lives, and that his deportation will severely affect their mental health.
33. In his more recent witness statement dated 23 May 2025 the Appellant states he has been seeing his children approximately three times a week since he was released from detention, which he believes was in February 2025. He confirms that he had several telephone calls with the children facilitated by his brother whilst he was in prison.
34. The Appellant states that 4 to 5 days after his release he saw the children at a friend’s house near to where they live and his daughter was crying with happiness and was really emotional. His brother was also present and was really happy to see them because until then he had not been able to see them as much due to his health.
35. The Appellant states they saw the children the following weekend when he and his brother took them to an activity centre, spending 4 to 5 hours there, after which they went for something to eat and dropped the children back close to their home.
36. The Appellant refers to him as usually collecting the children from school when he will either go to the park or to his brother’s house or make dinner for them. The Appellant states such contract will normally last for around three hours but as the children are nearly 14 and 12 years of age, they often come over by themselves.
37. At [8] the Appellant writes that the children have told him that a condition of him being able to see them only if his brother is present has been lifted by the local authority. The Appellant confirms that any communication with the children’s mother, his ex-wife, is via the children or his brother.
38. In addition to face-to-face contact the Appellant has contact with the children by indirect means such as by WhatsApp calls, text and voice messages. The Appellant states this occurs daily with his daughter who he claims is emotionally dependent on him.
39. The Appellant states his relationship with his children is good and that apart from his brother they are all he has in his life.
40. The Appellant refers to his son’s recent diagnosis of generic brittle bone disease, referring to the fact that he had suffered several sports related injuries in the past and now understands why. The Appellant states his son is currently receiving medication and that it is important he has a good diet, and that he wants to stay around and support him as he understands his love for sport.
41. The Appellant refers to his own mental health claiming he has been diagnosed with anxiety and a depressive disorder for which he is receiving medication. He describes feeling moderately okay with regard to his mental health and much better than he had been in the past year. He also states he has a girlfriend with whom he has been in a relationship for 3 months. She lives in Norwich and was a friend before, came over to visit the Appellant on 10 May 2025, and they have made video calls and sent messages which he claims supports him emotionally.
42. The Appellant claims to have had suicidal thoughts in the past, wanting to die, and being in a very bad place mentally at the time of his offending. He sets out the facts that led to a downward spiral, sinking, having panic attacks, heart palpitations, and not sleeping properly, which led to the prescription of antidepressants.
43. The evidence does not make out, however, that any treatment the Appellant requires would not be available to him in Lithuania or that this is an AM (Zimbabwe) Article 3 ECHR appeal on the basis of the medical evidence.
44. The Appellant was cross-examined by Ms Rushforth. When asked about the three days he claimed he was having contact with the children, and specifically which three days they were, the Appellant stated it varied depending on how the children were, when they were free to see him, and if they wanted to visit him.
45. When asked how long he sees them for at a time, he stated it depends, sometimes four hours a day sometimes when visiting a friend who lives not too far away, they will pop in and say hello for an hour.
46. When asked whether the children stayed overnight the Appellant stated they did not because he is not permitted to have them overnight at this time.
47. The Appellant was asked about the time when he was not permitted to see the children. His initial response was to claim he did not understand what time Ms Rushforth was referring to. It was clarified to be November 2024 as at the date of the appeal before the First-tier Tribunal he was not seeing the children. The Appellant was reminded he went to court and told the judge he was not seeing the children at that time, to which the Appellant replied by stating that he was able to see them then but there was a period when he was not allowed to see them.
48. When asked how long this period was, he claimed he was not sure but thought it was from 2023. He stated he was not able to see them from the start of 2023 until he went to prison. When Ms Rushforth asked the Appellant whether he was stating that for over a year he was not able to see them he confirmed that was correct, but then that he was able to see them through his brother.
49. The Appellant was asked about when the children visited Lithuania which he stated was not necessarily once a year as there were times they would not return for two – three years. The Appellant confirmed the children last went to Lithuania when he was in prison last summer for about 20 days. They normally visited for two weeks.
50. The Appellant was asked about employment and confirmed he had worked in the UK as a scaffolder but could not work at present as he is not permitted to work, but did intend to work here. When asked why he could not work in Lithuania he claimed he could work but would not earn as much as he could in the UK. He also claimed it was much harder to find a job there and he did not know how long it would take to get a job.
51. The Appellant confirmed he has a house in the UK that he lives in with his brother which he moved into 5 to 6 months ago prior to when he was staying with friends and rented the house out for some time. The Appellant was asked about his brother and we shall refer to his brother’s situation below when we discussed that element of the appeal.
52. The Appellant was asked about his lack of respect for the laws in the UK as he has five convictions, drink-driving matters and stalking his ex-wife and breaching conditions that he was required to comply with, to which the Appellant claimed that at the time when he breached the order he felt broken by the whole situation and that he was trying to salvage and save his family, but the situation was completely different now.
53. There was no re-examination.
54. A witness statement of 25 November 2024 has been provided from the children’s mother, the Appellant’s ex-wife, in which she confirms she has never obstructed or attempted to obstruct his access to the children and does not intend to do so now should he be released. She confirms that she signed statements made on behalf of the children as they are minors.
55. The statements from the children are typed. That from the Appellant’s son is dated 13 August 2024. In that he states, after providing his name date of birth and school he attends,

2. I have been playing football for eight years. I am playing at [a local football club].
3. My father supports my sporting activities, taking me to training sessions and picking me up. He constantly supports me mentally in my sports activities.
4. My father used to come to tournament matches to cheer me on.
5. On certain occasions, we go with my father to water parks and amusement parks.
6. No I do not meet with my father that often, but we used to meet a lot.
7. My father always takes me to training and picks me up.
8. My father calls me and my sister every week and talks to us.
9. My father pays for my football training fees.
10. I would like my father to stay in the UK.
11. If my father could solve his legal issues, I would like to meet him as often as possible.
12. He always finds time for me and my sister, even if he is busy.
13. Despite the difficulties that my father was previously faced, I do not want my father to leave the UK, as despite all the difficulties, he has always been in touch with me and my sister and has treated us well.
14. I hope my father would stay in the UK, as his presence is important for my sister’s well-being and upbringing.

56. There is in the Appellant’s supplementary bundle a letter from the Sheffield Children’s NHS Foundation Trust dated 12 November 2024 stating the hospital had confirmation of two changes in the Appellant’s son’s genes that predispose him to bone fragility. The letter refers to a range of available treatments, sets out the diagnosis as Osteogenesis Imperfecta – heterozygous COL1A2 gene. Hemizygous for variant of PLS3 and the treatment to be commencement with zoledronic acid at a dose of 0.025 mg/kg. In terms of follow-up, it is also noted the child is discharged from the clinic for follow-up at times of clinical review. We find that indicates that the issue of concern has been diagnosed, necessary investigation has been undertaken, treatment investigated and approved, and there is a clear prognosis as to his future which does not, on the basis of the letter from the hospital, make his father’s presence in the UK mandatory. The letter from the hospital also notes that support can be obtained from the Brittle Bone Society website.
57. The statement from the Appellant’s daughter is also dated 13 August 2024. After identifying herself and confirming the school she attends she states:

3. I live with my mother and brother in the UK.
4. When I met my father, we would go to a restaurant and shopping.
5. Mostly, it was me, my brother, and my dad meeting, but sometimes it was just me and my dad.
6. When I was in primary school and my mom was working, he would take me to school and pick me up.
7. Our frequent meetings stopped due to the problems my dad encountered recently, and because my father and mother broke up.
8. I really love my dad, and our relationship is good, like a father – daughter relationship.
9. He takes us out for dinner; we went for dinner together.
10. He takes us to the park.
11. I want my father to stay in the UK because I really want to see him.
12. We only go to Lithuania once a year, and I don’t want to see him only once a year because he is my only dad.
13. If you were required to leave the UK, I would not be able to see as much as I would like.
14. Despite the difficulties of my father faced, he has always maintained a good relationship with me and my brother.
15. I want my father to stay in the UK as I love him, and his presence is very important to me.

58. A witness statement from the Appellant’s brother states the Appellant is actively involved in the well-being of his children including football and swimming, when the Appellant was in Lithuania he would take the children to their training sessions, that when the Appellant was in prison and it was possible he would arrange telephone contact with his daughter as she stated that she missed him a lot and became emotional because she could not see her father, that after the Appellant and the children’s mother divorced the Appellant would see the children every week, that there is a strong bond between the Appellant and the children, that his deportation will have a negative impact on the children’s well-being, the Appellant has always cared for his children, and that the brother believes the Appellant is an exceptional father whose presence is very important for his children who are his priority and for their well-being. The brother further stated the Appellant would telephone him from prison asking how the children were.
59. Reference is made above to the involvement of the local authority and we have seen a document in the Appellant’s bundle issued by the Rotherham Metropolitan Borough Council (‘Rotherham MBC’) relating to the children.
60. The document states it is an assessment being completed following a referral from (the daughter’s) school as she had shared worries that her father had been drinking while caring for the children. (The daughter) shared that she could not smell alcohol on her father but that he was speaking in a deep voice. It is recorded that some initial concerns were raised about the mother’s ability to safeguard the children as she had initially shared that she knew that her father was drinking but could not see the impact on the children. The author’s assessment states that they are concerned that the children are at risk of emotional and physical harm in the care of their father without further establishing an understanding of risk around his mental health and alcohol use. The school stated they smelt stale alcohol on the father when he collected the children but not enough of a concern not to allow him to take his daughter.
61. Following a detailed assessment being undertaken by the Social Worker, under the heading “Harm” it is written:
We are worried about concerns in respect of father’s alcohol use and mental health and he is currently having supervised contact with the children, supervised by Uncle TZ.
When looking at previous concerns, there is bail in relation to a previous high risk DA incident whereby Dad broke into mums property and she referenced him to being intoxicated.
Dad has admitted to the GP that he can binge drink but Dad states his alcohol use is not an issue. He says she would not be drunk when caring for his children.
62. The Social Worker identified complicating factors as being that the children wish to see their father but that they are worried that he may say things like ‘he doesn’t want to be here anymore’ and seems to be talking to them almost about mum and dad’s breakup.
63. The report refers to existing safety arrangements being that the Appellant is to have supervised contact with the children, supervised by their uncle, and that if the children are having telephone contact with the father that was to be monitored by their mother, and that if she has any concerns about how he is presenting or the discussions the phone calls are to end. Any concerns would be reported to the police on 999 and doors and windows of the property to be locked at all times.
64. The recommendation of the report refers to the supervised contact which ties in with the comments made in the witness statements as to the uncle’s role in facilitating contact between the Appellant and the children. There is no follow-up report from Rotherham MBC but it appears that they were happy for the children’s mother to monitor the situation and act as she thinks appropriate in relation to the children.
65. A further statement in the supplementary bundle provided is from a witness JP, who did not attend the hearing, who is also a Lithuanian national, who describes herself as the girlfriend of the brother. She states she has known the Appellant for the last five years as a good friend and knows him as a good father whose deportation would have a huge impact on his children’s psychological development.
Discussion and analysis
66. We remind ourselves that when assessing whether deportation will be unduly harsh it is important only to consider the impact on the individual concerned as weighing the impact of deportation on the child against the criminality of the parent would be to offend against the 7th principle in Zoumbas v Secretary of State for the Home Department [2013] UKSC 74 (that a child cannot be blamed for matters for which he is not responsible) – see KO (Nigeria) & Others v Secretary of State for the Home Department [2018] UKSC 53 (24 October 2018).
67. There is still, however, a burden upon the Appellant to establish the effect of deportation upon the children will be sufficient to satisfy the required test. In HA (Iraq) v Secretary of State for the Home Department [2022] UKSC 22 and KO (Nigeria) the Supreme Court endorse the MK (section 55 – Tribunal options) [2015] UKUT 223 (IAC) (15 April 2015) formulation [at 46] that 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 UKSC also upheld the judgment of the Court of Appeal in HA (Iraq) v Secretary of State for the Home Department [2020] EWCA Civ 1176 that: 

• Undue harshness should not be evaluated with reference to the distress that ‘any child’ might face when their parent is deported. To apply such a notional comparator would be contrary to s55 

• It is no longer correct to say (as in Secretary of State for the Home Department v PG (Jamaica) [2019] EWCA Civ 1213 (11 July 2019) that the ‘commonplace’ distress caused by separation from a parent or partner is insufficient to meet the test:  it could be. The focus should be on the emotional impact on this child: [Underhill LJ 44-56, Peter Jackson LJ 157-159] 

• Undue harshness must not be conflated with the far higher test of “very compelling circumstances”. The underlying concept is of an “enhanced degree of harshness sufficient to outweigh the public interest in the medium offender category” [44-56] 

• decision makers should take into account the Zoumbas principles [55, 84, 114, 153], the best interests of the child [55], emotional as well as physical harm [159], relationships with other family members in the UK [120] and where applicable “the very significant and weighty” benefits of British citizenship [112-116 cf. Patel (British citizen child - deportation) [2020] UKUT 45 (IAC) (29 January 2020) [2020] Imm AR 744] but note that it will not necessary be an error of law to fail to recite every factor mentioned in HA – only those relevant to the case need to be considered MI (Pakistan) v Secretary of State for the Home Department [2021] EWCA Civ 1711 (18 November 2021) [25] 

• non-physical harm is an important part of the evaluation and should not be regarded as intrinsically less significant than physical harm [159]. On this point see further MI (Pakistan) where the court rejects the notion that evidence of psychological injury would be required [49].

68. We accept that on the evidence provided the Appellant’s deportation may be harsh upon the children. That is not, however, the issue we are required to consider.
69. Despite the Secretary of State’s refusal referring to the lack of evidence to support the Appellant’s claims there is no evidence by way of a report from a child psychologist or psychiatrist, no report from an Independent Social Worker, or anything else provided by an individual in a professional capacity to support the Appellant’s case in relation to the ‘unduly harsh’ question. We are not saying that without such reports the Appellant cannot succeed, but merely make the observation that such evidence has not been provided.
70. We can accept that the children would prefer to be able to see the father when they choose which is understandable. As children get older, they are more likely to view peer groups as being more important to them. That is not a statement that we undervalue the bond between the children, as clearly that between the Appellant and his daughter is strong, but a statement of fact.
71. We find it is not made out there will be no contact between the Appellant and the children if he is deported, as clearly the majority of the contact that takes place currently is by remote means in addition to face-to-face contact. It is not made out that indirect contact could not continue including between the Appellant and his daughter on a daily basis as it is now.
72. The evidence also indicated that the family visit Lithuania indicating there will also be the opportunity for face-to-face contact. As there is nothing to suggest the Appellant could not travel freely within the boundaries of the European Union it may also be possible, if funds allow, for the Appellant and the children to meet in one of the EU states nearer to the UK which they may be able to facilitate on a day trip.
73. It is also important to note that the primary carer of the children is, as it has always been, their mother. It is not made out that she is unable to ensure the children understand what has occurred and to be there to ensure that their emotional needs are met in what will be changed circumstances. It is also not made out that the children and their mother will not have access to necessary professional services in the United Kingdom to assist with the emotional consequence of the Appellants deportation, if required. The family have already had involvement with Rotherham MBC and it is not made out the children’s mother will not be able or willing to advise them of the Appellant’s removal and secure such assistance as may be required to assist the children.
74. It is also clear from the evidence that the school attended by the children are very much aware of their emotional needs which may offer a further avenue of support or awareness of any issues that may arise.
75. We accept there will be a change in the family dynamics as alternative arrangements may have to be made to take the children to school or clubs or activities, although it is not likely the Appellant’ son is going to be able to be as active as he has in the past in light of his medical diagnosis.
76. We accept the best interests of the children mean the Appellant should be permitted to remain in the United Kingdom, to which we give proper weight as the paramount consideration, but that is not the determinative factor.
77. In relation to the question of undue harshness, we find the Appellant has not discharged the burden of proof upon him to the required standard to show that his deportation will result in unduly harsh consequences for the children.
78. We move on to consider the second of the two issues, whether there are very compelling circumstances sufficient to outweigh the public interest in the Appellant’s deportation. This gives rise to two additional elements to be considered being the weight to be given to the public interest and the situation of the Appellant’s brother.
79. In his latest witness statement dated 23 May 2025, at [15], the Appellant writes:
15. I have an extremely close relationship with my brother who lives with me in a house that I own. My brother has lived here for around the last two years. We have no other siblings. My brother is in extremely bad health due to his battle with lung cancer. My brother has a very rare and slow-growing form of lung cancer which I believe there are 400 similar cases in the UK and the available treatments are limited. He has got gradually worse and is much worse now than compared to the same time last year. He is becoming increasingly reliant on me to take care of him every day. He has some mobility problems and can sometimes barely walk and gets out of breath very easily. He cannot for example lift any moderately heavy object such as shopping by himself. He finds it hard to climb stairs even at home and needs my help to get up the stairs to use the bathroom or go to bed for example. I do everything around the house and make my brother all of his meals such as breakfast, lunch and dinner. I go shopping for him and also take him to the supermarket to go shopping. I take my brothers to all of his hospital and doctor appointments several times a month. My brother needs to be lifted out of the car. I remind my brother to take his cancer medication and help him with any form filling. Sometimes on a bad day when my brother is feeling particularly unwell he will be in bed all day and won’t even have the energy to talk. On days like this I will need to pay close attention to him to make sure he eats and drinks enough. If my brother needs anything he will call out for me or call on our mobile phones, (even though we are in the same house). My brother is too ill to fly and is unable to go abroad. Recently his close friend in Lithuania passed away and if there was any way he could have he would have attended the funeral, but it was not an option for him.
80. In his latest witness statement the brother adopted his earlier statements and provides an update on his current health and family situation. At [2], he claims he was often bedridden due to his illness/lung cancer.
81. The brother attended the hearing and was able to give oral evidence and be cross-examined with no evidence of difficulties in doing so or moving about the court room, albeit that when giving his evidence he coughed on a couple of occasions and he walked with a stick.
82. The brother states that he is receiving a cocktail of prescription drugs including a drug to stop the cancer growing, a beta-blocker, and other drugs to control his heart and high blood pressure.
83. The brother states his condition has worsened since the Appellant was in detention and claims that since being released from detention the Appellant has been his carer and helped him attend all his medical appointments. The brother claims that his relationship with his partner broke down 4 to 5 months ago when he lost her physical and emotional support.
84. The brother refers to attending hospital on 15 May 2025 where he received another prescription for cancer drugs. He states the Appellant drives him to hospital and that he goes approximately once a month with three appointments in June. He claims he will be unable to attend the appointments without the Appellant’s help as he is not allowed to drive at the moment due to his cancer medication.
85. The brother claims the Appellant provides all his day-to-day care including cooking, cleaning, and shopping as well as driving him to appointments and to the supermarket. He states that if the Appellant was not present he would have to spend all his time in the house at home and would not be able to get out and about. He also claims that if the Appellant was not around he would not be able to live at the home address because he cannot cook, clean, or look after himself and will probably have to live in a care home. He also refers to the emotional support the Appellant gives him.
86. The brother refers again to what he sees as the good relationship between the Appellant and his daughter which is an issue we have commented upon above.
87. In reply to questions put to him in cross examination by Ms Rushforth the brother confirmed he was diagnosed with cancer in 2017. He was asked about his claim to have split up with his girlfriend. When asked how long ago that happened he claimed he could not recall but thought it was six or seven months ago.
88. He was asked whether if the Appellant was deported there was any reason he could not be cared for by a carer to which he stated he did not know. He referred to the emotional support provided by the Appellant and claimed he is the one who motivates him to do things.
89. In re-examination by Ms Khan the brother was asked about how his disease had progressed. He stated that he had two types of cancer initially, skin cancer for which he had an operation and treatment but then it was also discovered he had lung cancer. He claims when he was first diagnosed with lung cancer three years ago he would run three times a week, 5km, but claims he is now unable to do this.
90. When asked how his illness affects him mentally, he claims he is trying to keep himself going and that the Appellant is a big motivator for him as he encourages him to keep going and read up about his disease. When asked how he would feel if the Appellant was not there the brother claimed it would be extremely tragic as he does not have anybody close here apart from his brother.
91. When asked how he would feel about carers looking after him he claimed not to understand the question and where he would live, as he is living in the Appellant’s house and that if he was deported he would need to sell the house.
92. When asked how his condition was being treated he claimed it is incurable and that although he is taking medication now he was awaiting a scan of his lungs to see whether the medication had any effect of slowing the progress of the cancer or stopping it.
93. We have within the Appellant’s bundle a substantial volume of GP notes which we have read but do not set out in detail, which includes correspondence from relevant Consultants.
94. The first is a letter dated 18 August 2021 from a Dr Rawther, a Consultant Head and Neck Oncologist based in Sheffield. That records a diagnosis of a recurrent, metastatic, adenoid cystic carcinoma with lung metastases. The letter states the condition was originally diagnosed in February 2018 in Barcelona, that the brother had further surgery in April and June 2018 for positive margins, a CT scan in June 2018 followed by post-operative radiotherapy followed by a CT scan in November 2019 which showed progression of lung nodules – assumed metastatic. The letter notes the brother continued on Oncological surveillance with no systematic treatment, and that his last CT scan in September 2020 had shown multiple bilateral pulmonary nodules.
95. A more recent document headed ‘IP Discharge Summary’ from the Rotherham NHS Foundation Trust is dated 31 January 2025. The clinical summary shows the brother was admitted with shortness of breath and a high oxygen requirement. It is recorded that he has known adenoid cancer on admission which is under surveillance. He was treated for pneumonia on a background of cancer of the lung. The document records various enquiries being undertaken and the issue being infection tachycardia driven for which appropriate treatment was provided. The management plan of follow-up refers to cardiology follow-up (routine) and the oncology team being made aware of admission with any follow-up as required by them. The brother was discharged home on 31 January 2025.
96. The brother received a letter dated 10 March 2025 from the Cardiac Team of Rotherham NHS Foundation Trust indicating he had been referred for Cardiac rehabilitation which would provide health information, active exercise, exercise groups, medication checks, psychological support and symptom control to help recovery in managing his condition to improve his heart health.
97. There are also a number of letters with entries and correspondence from The Christie NHS Foundation Trust based in Manchester. This indicates the brother had been referred for investigation to see whether he may be suitable for trials relating to his particular health needs. In a letter dated 8 April 2024 to the brother’s consultant in Sheffield from the Consultant Team at The Christie it is written:
[the brother] reports to me is that he has had progressive shortness of breath on exertion over the last few months. There is some growth on his scars over the preceding 18 months but this does appear to be fairly indolent over that overall period, with the caveat it is difficult to accurately assess any rate of change over such a long period. He reports to me that he is due first scans in April.
We talked about treatment options for his cancer. Chemotherapy is the most available option which has response rates in the region of 5% to 10% for this type of cancer. I explained that we generally consider this as our reserve option as it may be more likely to be effective in more rapidly growing cancer. The other option available outside of a trial setting is a targeted therapy called Lenvatinib. This has response rates in the region of 12% to 15% with a side effect profile comparable to chemotherapy. She is usually accessed through compassionate access from the drug manufacturer Fisal.
The other options are clinical trials, either early phase trials with an Early Phase Team or late phase trials. We do have a late phase trial set up here at The Christie but it would require travelling here at least once a week based on the preliminary protocol that we have been sent. As it currently stands [the brother] will be a good candidate for this trial.
[the brother] also explained to me that he is worried about a new treatment option due to the impact it may have on his work. He is unsure about available financial support due to his immigration status. We have be grateful if you could give him advice regarding this locally.
We will follow-up [the brother] in approximately 2 months with his next scan report.
98. The next letter from Dr J Lester, Consultant Clinical Oncologist at the Western Park Hospital in Sheffield refers to the brother having a CT scan on 20 September 2024 showing disease progression in his lungs, which is known, the question being how quickly it was progressing. Dr Lester states scans indicate the disease is progressing faster than it was before. It also notes that the brother was due a telephone consultation with the Rare Tumour Team in Manchester to whom he would forward the report and scan pictures for them to review. The letter refers to non-trial options including chemotherapy, and Dr Lester’s opinion that the brother should explore clinical trial options.
99. It is clear from the evidence that we have that this is not yet an ‘end of life’ case for the Appellant’s brother. Although he is seriously ill it is clear that he is under the supervision of the medical teams in both Sheffield and Manchester. It was not disputed by Ms Rushforth that the Appellant is likely to help his brother. The Respondent’s case is that it has not been demonstrated that care could not be provided by carers.
100. The brother has leave to remain in the United Kingdom. He is clearly able to access health services through the NHS. His expression of concern based upon his own immigration status is not supported by sufficient evidence to enable us to conclude that if the Appellant was deported he would not be able to obtain the care and assistance that he requires in the UK.
101. There is already reference in the correspondence to care and support being available. If the medical authorities made it clear that the brother required suitable accommodation or residential care, it is not made out the same would not be provided for him. Indeed, if his condition deteriorates to the point where it is likely to be an ‘end-of-life’ situation, he is likely to be able to access care in one of the various hospices that exist for the purpose of providing specialised care for patients for whom the medical profession is unable to prevent the growth of a cancer, with negative impacts for the patient.
102. We do not find it made out that the Appellant’s brother would not be able to access the necessary care he will require if the Appellant is deported sufficient to meet both his physical and psychological needs.
103. The submissions made by Ms Khan focused upon the emotional support that it is claimed the Appellant gives to his brother, which will be lost if he is deported.
104. The brother clearly has a good relationship with the Appellant’s ex-wife and the children. It is not made out that if the Appellant is deported, he will not be able to continue to benefit from such support and contact. It is also the case, as with the children, that indirect contact will be available enabling the Appellant to maintain contact with his brother and to be able to continue to verbally support him and motivate him. In relation to the Appellant ensuring his brother took his medication, it is not made out that he would not be able to ensure that he did so remotely by way of text messages or other means of communication at the relevant times. It is not made out being able to see the Appellant via video contact will not be of benefit to the brother.
105. There is also insufficient evidence from a psychologist or psychiatrist specialising in providing care and support to those suffering from cancer to establish that the effect of deporting the Appellant upon his brother will be so serious as to outweigh the public interest in the Appellant’s deportation.
106. We note the brother refers to accommodation and the Appellant having to sell the house in Mexborough but, even if he does, it is not made out that the brother will not be able to obtain alternative accommodation as noted above.
107. It is also not made out that the brother will not be able to access the required services to enable him to attend hospital appointments. There are a substantial number of individuals who are unable to attend hospital for appointments themselves and who benefit either from transportation provided by the hospital authorities themselves or by volunteer hospital drivers. It is not made out if the Appellant is not in the UK that appropriate support would not be provided to enable him to continue to attend his appointments both in Sheffield and in Manchester. There is insufficient evidence on either an operational or financial basis to show that this is not a reasonably foreseeable and available alternative.
108. The elements of the Appellant’s life in the UK are his children and his brother, but neither of these establishes exceptional compassionate circumstances of such a degree that it outweighs the public interest in the Appellant’s deportation. Whilst this is not a case in which there has been a criminal offence at the higher end of the scale of offending, what is in the public interest if for the Secretary of State to decide, and domestic violence and breaching related restraining orders are matters in relation to which there is a recognised need to try and prevent the same occurring at any level, given the foreseeable physical and psychological harm that such offending can cause.
109. It is not made out the Secretary of State’s arguments in relation to the weight to be given to the public interest in this appeal are irrational or unreasonable.
110. The Appellant also refers to his mental health which we have commented upon above. Whilst we accept there will be a psychological impact upon the Appellant if he is deported from the United Kingdom, and the contact with his brother and his children changes, there is insufficient evidence from a psychologist or psychiatrist to show that the impact will be sufficient to outweigh the public interest.
111. It is also not made out the Appellant will not be able to receive appropriate medical treatment in Lithuania for any physical or mental health needs. We have found above that this is not an AM (Zimbabwe) case or one in which the impact of deporting the Appellant upon his physical or mental health will cross the high threshold of Article 3 ECHR.
112. We have also as part of our deliberations taken into account the fact the Appellant is an EU national who exercised rights of free movement when he came to the UK. He has worked in the UK and gave evidence he would seek employment in the future, but we do not find it made out he will not be able to secure employment on return to Lithuania from which he can earn sufficient income to enable him to meet his needs and, if surplus exists, to pay to support the children in the UK. The Appellant no longer has a right to free movement and committed offences after 11 PM 31 December 2020 requiring us to assess the merits of the appeal under the relevant domestic law provisions, which includes the ECHR.
113. We do not find the fact the Appellant is an EU national exercising free movement rights warrants additional weight being given to his case sufficient to outweigh the public interest.
114. We have had regard to the issue of rehabilitation. We note the times that has elapsed since the offence was committed and the Applicant’s conduct during that period.
115. The Supreme Court in HA (Iraq) v Secretary of State for the Home Department [2022] UKSC 22 consider the issue of rehabilitation between [53] – [59]. At [55] – [50] it was found:

55. In RA the Upper Tribunal stated as follows in relation to the significance of rehabilitation:
“As a more general point, the fact that an individual has not committed further offences, since release from prison, is highly unlikely to have a material bearing, given that everyone is expected not to commit crime. Rehabilitation will therefore normally do no more than show that the individual has returned to the place where society expects him (and everyone else) to be. There is, in other words, no material weight which ordinarily falls to be given to rehabilitation in the proportionality balance … Nevertheless, as so often in the field of human rights, one cannot categorically say that rehabilitation will never be capable of playing a significant role … Any judicial departure from the norm would, however, need to be fully reasoned.” (para 33)
56. In Binbuga v Secretary of State for the Home Department [2019] EWCA Civ 551; [2019] Imm AR 1026 at para 84 I cited and agreed with that passage. The Secretary of State submitted that this approach was correct and should be endorsed as, whilst it acknowledges that rehabilitation can be relevant, in terms of weight it will generally be of little or no material assistance to someone seeking to overcome the high hurdle of the very compelling circumstances test.
57. In the RA appeal, the Court of Appeal, while agreeing that rehabilitation will rarely be of great weight, did not agree with the statement that “rehabilitation will … normally do no more than show that the individual has returned to the place where society expects him … to be”. They considered that it did not properly reflect the reason why rehabilitation is in principle relevant, namely that it goes to reduce (one element in) the weight of the public interest in deportation which forms one side of the proportionality balance.
58. Given that the weight to be given to any relevant factor in the proportionality assessment will be a matter for the fact-finding tribunal, no definitive statement can be made as to what amount of weight should or should not be given to any particular factor. It will necessarily depend on the facts and circumstances of the case. I do not, however, consider that there is any great difference between what was stated in Binbuga and by the Court of Appeal in this case. In a case where the only evidence of rehabilitation is the fact that no further offences have been committed then, in general, that is likely to be of little or no material weight in the proportionality balance. If, on the other hand, there is evidence of positive rehabilitation which reduces the risk of further offending then that may have some weight as it bears on one element of the public interest in deportation, namely the protection of the public from further offending. Subject to that clarification, I would agree with Underhill LJ’s summary of the position at para 141 of his judgment:
“What those authorities seem to me to establish is that the fact that a potential deportee has shown positive evidence of rehabilitation, and thus of a reduced risk of re-offending, cannot be excluded from the overall proportionality exercise. The authorities say so, and it must be right in principle in view of the holistic nature of that exercise. Where a tribunal is able to make an assessment that the foreign criminal is unlikely to re-offend, that is a factor which can carry some weight in the balance when considering very compelling circumstances. which it will bear will vary from case to case, but it will rarely be of great weight bearing in mind that, as Moore-Bick LJ says in Danso, the public interest in the deportation of criminals is not based only on the need to protect the public from further offending by the foreign criminal in question but also on wider policy considerations of deterrence and public concern. I would add that tribunals will properly be cautious about their ability to make findings on the risk of re-offending, and will usually be unable to do so with any confidence based on no more than the undertaking of prison courses or mere assertions of reform by the offender or the absence of subsequent offending for what will typically be a relatively short period.”
59. The only caveat I would make is that the wider policy consideration of public concern may be open to question on the grounds that it is not relevant to the legitimate aim of the prevention of crime and disorder. In Hesham Ali it was the view of Lord Wilson that this was a relevant consideration (see paras 69 to 70) but that was not a view endorsed by the majority. That is not, however, an issue that falls for consideration on this appeal

116. It is not made out the Appellant’s prospects of rehabilitation will be lessened to any degree in Lithuania or any different from those in the UK. There are concerns in relation to the Appellants stability and past conduct which gives rise to concerns of a real risk of further offending. We do not find it has been made out that this is a case where it can be said that the Appellant is fully rehabilitated to the extent that there is no real risk of his committing further offences in the future, or to show this is a determinative factor or one which tips the balance in the Appellant’s favour.
117. In HA (Iraq) UKSC the court also endorsed the approach taken in Unuane v. United Kingdom - 80343/17 (Judgment : Remainder inadmissible : Fourth Section) [2020] ECHR 832 (24 November 2020) [at 72-72]. Dealing with the relevant factors we find as follows (in italics):

• the nature and seriousness of the offence committed by the applicant [for which see further HA (Iraq) UKSC [66-70] for discussion re approach to sentencing in criminal courts] - the Appellant has been convicted of the offences referred to above.

• the length of the applicant’s stay in the country from which he or she is to be expelled [for which see further Abdi v. Denmark - 41643/19 (Judgment : Article 8 - Right to respect for private and family life : Second Section) [2021] ECHR 738 (14 September 2021) re Maslov long residence, and Sanambar v Secretary of State for the Home Department [2021] UKSC 30 (16 July 2021)  where the UKSC rejected the contention that Maslov creates a presumption in the migrant’s favour   - the Appellant entered the United Kingdom in 2017.

• the time elapsed since the offence was committed and the applicant’s conduct during that period [for which see HA (Iraq) UKSC [53-59] for discussion of Boultif etc]  - the Appellant served a period of imprisonment as a result of the index offence and has since been subject of an order for his deportation from the United Kingdom. It is not made out the Appellant has reoffended since release from prison but it must be borne in mind that he knows that if he does so not only will he serve a further sentence of imprisonment but it will be an extremely detrimental step in terms of the deportation proceedings.

• the nationalities of the various persons concerned - both the Appellant, his brother, and the children are Lithuanian citizens.

• the applicant’s family situation, such as the length of the marriage, and other factors expressing the effectiveness of a couple’s family life - there is no evidence of family life recognised by Article 8 with the Appellant’s former wife from whom he is separated and divorced. The Appellant refers to a new relationship in his evidence but it is not made out that is of sufficient nature and duration to be recognised as family life pursuant to Article 8, although we accept it will be part of the Appellant’s private life. The situation of the other members of the family is as set out above.

• whether the spouse knew about the offence at the time when he or she entered into a family relationship - not relevant as there is no spouse affected by the Appellants deportation.

• whether there are children of the marriage, and if so, their age - details of the children are set out above. We have found it will not be unduly harsh upon the children if the Appellant is deported.

• the seriousness of the difficulties which the spouse is likely to encounter in the country to which the applicant is to be expelled – the spouse will encounter no difficulties if the Appellant is deported to Lithuania she will remain in the United Kingdom with the children and, in any event, is the Appellant’s ex-spouse.

• the best interests and well-being of the children, in particular the seriousness of the difficulties which any children of the applicant are likely to encounter in the country to which the applicant is to be expelled - the best interests of the children are to remain in a stable happy family environment as we have found above. The well-being of the children has not been shown to be adversely affected if the Appellant is deported as they will remain in the home they currently have with their mother, their primary carer, who it has not been shown is not able to meet all their essential and other needs adequately. The children are not going to be removed to Lithuania.

• the solidity of social, cultural and family ties with the host country and with the country of destination - the Appellant’s ties to the UK reflect the fact he has only been here for a relatively short period of time. His evidence is that his main ties are to his brother, also a Lithuanian national, and his children. The Appellant has shown a disregard for the laws of the United Kingdom by his offending behaviour. It is not made out that he has solid social or cultural ties to the UK. The Appellant provided insufficient evidence to enable a finding to be made in relation to ties to Lithuania, but we note the family visited there regularly and it is likely there is family there on the basis of the evidence that we have been able to consider. The Appellant did not raise the issue of lack of social, cultural, or family ties to Lithuania sufficient to support a finding that will be disproportionate for him to return to his home state.

118. In conclusion, we conclude that the Secretary of State has discharged the burden upon her to the required standard to show that the public interest outweighs those matters relied upon by the Appellant in support of his argument that he should not be deported from the United Kingdom. We find it made out that any interference with a protected right is proportionate. On that basis we dismiss the appeal.

Notice of Decision

119. Appeal dismissed.

C J Hanson

Judge of the Upper Tribunal
Immigration and Asylum Chamber

12 June 2025