Tribunal decisions

The decision

IN THE UPPER TRIBUNAL
IMMIGRATION AND ASYLUM CHAMBER
Case No: UI-2025-000294

First-tier Tribunal No: HU/00606/2024

THE IMMIGRATION ACTS

Decision & Reasons Issued:

14th May 2025

Before

UPPER TRIBUNAL JUDGE SMITH
DEPUTY UPPER TRIBUNAL JUDGE DURANCE

Between

SECRETARY OF STATE FOR THE HOME DEPARTMENT
Appellant
and

JAN BALOG
[NO ANONYMITY DIRECTION MADE]
Respondent

Representation:
For the Appellant: Mr R Roberts, legal representative, Cromwell Wilkes Solicitors
For the Respondent: Mr E Terrell, Senior Home Office Presenting Officer

Heard at Field House on Monday 28 April 2025

DECISION AND REASONS

Background

1. The Secretary of State is the appellant before us. For ease of reference, we refer to the parties as they were in the First-tier Tribunal. First-tier Tribunal Judge Cansick (“the judge”) promulgated a decision on 9 December 2024 in respect of the appellant. The appellant is a national of the Czech Republic and has committed three offences of dishonesty which have resulted in extended sentences of imprisonment. He is in a relationship with a Slovak national and has two children aged 3 and 6. The Judge allowed the appeal on the basis that his deportation would be unduly harsh on his children.

Summary of findings

2. It was argued before the judge (skeleton argument) that it would be unduly harsh on the children.

3. The judge found as follows: -

a) The appellant is a national of the Czech Republic;
b) He was granted indefinite leave to remain under the EU settlement scheme;
c) Between 2010 and 2013 he accrued three criminal convictions for dishonesty. The first conviction was for making a false representation. The second offence related to fraud, and he was sentenced to 32 months imprisonment. The SSHD elected not to deport on the basis of his long residence within the UK, he arrived in the UK when he was aged 10. At that time, the UK was still part of the European Union and the test under EU law would have applied to his deportation (as Mr Roberts accepted). The appellant’s third conviction was for making false representations and he was sentenced to 12 months imprisonment.
d) It was argued that there was a genuine and subsisting relationship between the appellant and his spouse and with his two children aged 6 and 3.
e) It was concluded that the appellant has been in the UK for the majority of his life (para 18).
f) It was concluded that there was “significant social and cultural integration in the UK” (para 20 and 21).
g) It was rejected that as a Roma he would face significant difficulties integrating into Czech life (para 22).
h) It was concluded that the high threshold of Exception 1 was not met (para 25).
i) The judge addressed the issue of the “unduly harsh test” at paragraphs 26 – 27. It was concluded that it would be harsh for the children to relocate to the Czech Republic as they do not speak the language.
j) The appellant’s appeal therefore succeeded on human rights grounds (para 35).

4. The SSHD lodged grounds of appeal and argued as follows: -

a) It is argued that the judge failed to explain how the children would be detrimentally impacted by his absence.
b) It was argued that the children are young and could adapt to change.
c) In the “Stay” scenario, the judge has failed to demonstrate how the removal of the appellant would impact upon the children.
d) It is argued that there has been minimal analysis of the impact on the children in terms of “bleak”, “severe” or “elevated”.
e) It was argued that the children’s best interests is not determinative of the outcome per se.

5. Permission was granted by Deputy Rhys Davies on 20 January 2025. It was noted that the ages of the children meant that the findings on the “Go” scenario were difficult. It was also considered that the judge failed to make adequate findings in respect of the “Stay” scenario. All grounds were deemed arguable.

The Law

6. In Volpi v Volpi [2022] EWCA Civ 464, the Court of Appeal stated that an appeal court should not interfere with the conclusions on primary facts unless they were plainly wrong. An appeal court is bound to find that the first instance judge has taken the whole of the evidence into account. An appeal court should not subject a judgment to a narrow textual analysis.

7. In HA (Iraq) [2022] UKSC 22, it was noted that the seriousness of the parent’s offending was not a factor to be balanced against the interests of the child (para 19). The UKSC indicated that insofar as the “unduly harsh” test was concerned, they were looking at “a degree of harshness going beyond what would necessarily be involved for any child faced with the deportation of a parent”. What the UKSC indicated was that they did not require a further discussion as to the severity of the offence. It was noted that “unduly harsh” meant something severe, bleak and that the use of the adverb “unduly” increased the standard even higher.

8. In TZ (Pakistan) and PG (India) v SSHD [2018] EWCA Civ 1109, Ryder LJ stated that the tribunal needed to set out “those factors that weigh in favour of immigration “control” “the cons” against those factors that weigh in favour of family and private life “the pros” in the form of a balance sheet which it then uses to set out a reasoned conclusion within the framework of the test(s) being applied within or outside the Rules”.

Oral argument

9. Mr Terrell argued that there was in general terms an inadequacy of reasons for the decision. He argued that the decision had failed to deal with the unduly harsh test and that the focus had been too specific to the rights of the children who were unable to speak Czech. He argued that the children would be able to learn the language.

10. Mr Terrell argued that the reasons were too short and argued that any travel to the Czech Republic for visits would be affordable. He submitted that the challenge made by the SSHD was fair and well-founded.

11. Mr Roberts (on behalf of the appellant) accepted that further exposition might have been helpful. He argued however that the decision should stand and that any errors were not material. Insofar as the “Go” scenario was concerned, there had been significant reasons. He pointed out that although the judge had not expressly mentioned certain factors, there were factors which took this case outside the norm. The children are Roma and would face discrimination in the Czech Republic due to their ethnicity. He accepted that the Judge did not accept the appellant’s case about the discrimination he would face as Roma when looking at the private life exception. However, he pointed out that the children had never experienced such discrimination and this was therefore different.

12. In terms of the “Stay” option, Mr Roberts pointed out that the appellant had nearly lost his life in a road traffic accident which had then threatened the security of the family. There would therefore be an enhanced impact of separation.

13. In reply, Mr Terrell pointed out that Mr Roberts had accepted that the judge had not referred expressly to the factors on which Mr Roberts relied and submitted that there was therefore an error of law. He submitted that the respondent ought to be able to know why she had lost and could not do so in this case.

Error of Law

14. The judge has had clear regard to the relevant caselaw in respect of the “Go” scenario (paragraph 29). The children would lose access to education and healthcare in the UK. They would also be deprived of care from their grandparents. It is noted that they do not speak Czech and that they will be in a place where the mother has never lived before. On this basis, it is held that it would be unduly harsh. It is clear that the judge has paid regard to SC (Jamaica) v SSHD [2022] UKSC 15, Treebhawon v SSHD [2017] UKUT 13 and HA (Iraq) [2022] UKSC 22. This raises the issue as to whether the appeal is a disagreement on the outcome or a challenge on the grounds of law. In many respects, the issues raised in the Volpi decision are to the fore. Looking at paragraph 27, it is clear that the judge has paid regard to what was said in HA (Iraq) and considered the words “harsh”, “severe” and “bleak”.

15. The judge has also had regard to the “Stay” scenario (paragraph 30), The judge held that modern communication could not mitigate the absence of the father. It was noted that he had been in employment and supported the family and that there would be a loss of emotional, financial, and practical support. It was determined that it would be unduly harsh for the children to stay in the UK without the appellant. In our judgment, the fact that travel to the Czech Republic is affordable does not alter the assessment that this would have an unduly harsh impact for the children.

16. Based on the decision of Volpi (supra), the judge made findings which were neither plainly wrong or rationally insupportable and the judge’s findings were in accordance with the judgments that the judge referred to within the statement of reasons.

17. In our judgment, the respondent’s challenge is one of disagreement rather than an identification of any error of law. The judge directed himself to the relevant case-law and applied it. Whilst this may not be a decision which we would have reached, it is one which was open to the judge for the reasons he gave.

Notice of Decision

The decision of First-tier Tribunal Judge Cansick does not contain an error of law. We therefore uphold it with the consequence that the appeal remains allowed.

A Durance
DUTJ Durance

Deputy Judge of the Upper Tribunal
Immigration and Asylum Chamber

9 May 2025