Tribunal decisions

The decision

IN THE UPPER TRIBUNAL
IMMIGRATION AND ASYLUM CHAMBER
Case No: UI-2025-000295

First-tier Tribunal No: HU/01277/2024

(previously linked with UI-2025-000312 EA/03887/2023)

THE IMMIGRATION ACTS

Decision & Reasons Issued:

On 23rd of October 2025

Before

UPPER TRIBUNAL JUDGE KEBEDE

Between

ALEXTER FAIRWEATHER WALKER TONTO
Appellant
and

SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:

For the Appellant: Mr P Nathan, instructed by Duncan Lewis Solicitors
For the Respondent: Ms H Gilmour, Senior Home Office Presenting Officer

Heard at Field House on 8 October 2025

DECISION AND REASONS
1. This is the re-making of the decision in the appellant’s appeal, following the setting aside, in a decision promulgated on 17 June 2025, of the decision of the First-tier Tribunal.
2. The appellant is a Dutch national, born in the Netherlands on 22 August 2001. He moved to the UK with his mother at the age of three years, in 2004/2005. The appellant’s relationship with his mother broke down and he lived with his uncle’s partner during his teens. He attended school in the UK. After his uncle’s partner died her family sold the house where he lived and he became homeless and slept rough for some time.
3. The appellant was convicted of a number of criminal offences, as set out in the First-tier Tribunal’s decision:
(a) 15 June 2016 at South London Juvenile, 2 counts of assault with intent to resist arrest. Receiving a referral order and a victim surcharge.
(b) 12 October 2016 at South London Juvenile, battery. Receiving a referral order, costs and compensation.
(c) 28 July 2020 at Maidstone Crown Court, possessing controlled drug with intent to supply – Class A – cocaine, possessing controlled drug with intent to supply – Class A – heroin. Sentenced to 14 months imprisonment, suspended; activity requirement; unpaid work requirement and victim surcharge.
(d) On 12 November 2020 he was sentenced to 27 months imprisonment for possession with intent to supply cocaine and heroin and for conspiracy to supply the same drugs.
4. With regard to the latter, the respondent gave the appellant notice of intention to deport him, but decided not to pursue deportation and instead issued a warning letter.
5. The appellant was released from prison in 2021. He applied under the EUSS for leave to remain on 22 September 2021 and on 13 April 2022 he was granted ILR in line with his mother.
6. On 2 April 2022 the appellant was caught in possession of a flick knife for which he received a four-month suspended sentence. On 21 January 2023 he was arrested for further drugs offences and on 20 February 2023 he was sentenced to 41 months imprisonment for possession with intent to supply heroin and crack cocaine and failure to comply with the community requirements of a suspended sentence.
7. On 25 July 2023 the appellant was issued with a Stage One deportation decision notifying him that section 32(5) of the UK Borders Act 2007 applied. He was given a right of appeal under regulation 6 of the Immigration (Citizens’ Rights Appeals) (EU Exit) Regulations 2020. He appealed against that decision on 15 December 2023.
8. The appellant made written representations which were treated as a human rights claim. On 26 April 2024 the respondent issued a supplementary letter to be read in conjunction with the decision of 25 July 2023. On 2 July 2024 the respondent issued a deportation order against the appellant under section 32(5) of the UK Borders Act 2007 and on 4 July 2024 served on him a Stage Two decision to refuse his human rights claim. The appellant appealed against that decision under section 82 of the Nationality, Immigration and Asylum Act 2002.
9. In that decision the respondent noted that the appellant’s human rights claim was based upon his family life with his British girlfriend Alicia Lawson and his British daughter Amirah, and upon his private life in the UK. The respondent accepted that the appellant had been lawfully resident in the UK for most of his life, for 15 years, but did not accept that he was socially and culturally integrated in the UK and did not accept that there would be very significant obstacles to his integration in the Netherlands. The respondent considered that the appellant was therefore unable to benefit from the private life exception to deportation. With regard to the family life exception to deportation, the respondent did not accept that the appellant had demonstrated a genuine and subsisting relationship with his partner or child and did not accept that it would be unduly harsh on his partner or child to relocate with him to the Netherlands or alternatively to remain in the UK without him. The respondent considered that the appellant could not, therefore, benefit from the family life exception and, furthermore, that there were no very compelling circumstances outweighing the public interest in his deportation. The respondent had regard to the fact that the appellant had been convicted six times for 11 offences, from 15 June 2016 until 20 February 2023, and that the convictions included offences against the person, once offence relating to police/courts/prisons, six drugs offences and one firearms/shotguns/offensive weapon offence, and gave consideration to the sentencing remarks of the Judge who sentenced him on 12 November 2020. The respondent concluded that the appellant’s deportation was proportionate and did not breach his Article 8 human rights.
First-tier Tribunal
10. The appellant’s appeals against both decisions, namely the deportation decision and the decision on his human rights claim, were linked and came together before the First-tier Tribunal on 20 December 2024. With regard to the appeal against the Stage 1 decision, the First-tier Tribunal Judge recorded, at [4] of his decision, the appellant’s representative’s confirmation that the appellant was no longer pursuing that appeal, in light of Vargova (EU national: post 31 December 2020 offending: deportation) [2024] UKUT 336. It was agreed at the hearing that the only issue therefore related to the human rights claim and it was on that basis alone that the judge determined the appeal.
11. The judge noted that the appellant was released from prison in 2021, following his previous conviction in November 2020, and that he began his relationship with Ms Lawson thereafter, with a daughter being born to them on 8 November 2022. Ms Lawson lived with her own mother at the time and the appellant would stay with her frequently as he had no other fixed home. The judge set out the evidence that the appellant continued to use cannabis and built up a debt to a drug dealer which, together with the cost of having a new baby, led him into the further criminal offending. The judge found that the appellant had maintained contact with Ms Lawson and their daughter during his recent period of imprisonment and noted that he began living with them on his release on bail, on 11 October 2024, in Ms Lawson’s property where she lived with their daughter, 13 minutes away from her mother’s home. The appellant had since found work in a warehouse and Ms Lawson had started the final year of a law degree and also worked as a medical receptionist. The judge accepted that the appellant and Ms Lawson had no ties to the Netherlands and that neither spoke Dutch.
12. The judge found that it would be unduly harsh to expect Ms Lawson and their daughter to relocate to the Netherlands with the appellant because they had no ties there, but that it would not be unduly harsh for them to remain in the UK without him. He found that it would be wrong to describe the appellant as having been socially and culturally integrated during the period when he was repeatedly offending but that he was currently socially and culturally integrated. He found further that, whilst the appellant faced real and significant obstacles to integration in the Netherlands, those obstacles did not quite reach the level of being very significant. The judge therefore found that the requirements of the exceptions to deportation were not met. However he found that it would be adverse to the best interests of the child to live in the Netherlands and he distinguished the appellant’s case from three others relied upon by the respondent on the grounds that none of the three had a relationship with a partner and children of their own in the UK. The judge found that the appellant’s case was a near miss on each of the exceptions and concluded that there were very compelling circumstances making deportation disproportionate. He accordingly allowed the appeal in a decision promulgated on 31 December 2024.
13. The SSHD sought permission to appeal to the Upper Tribunal against that decision on the following grounds. Firstly, the judge had failed to provide adequate reasons for his finding that there were very compelling circumstances. Secondly, the judge had failed to adequately reason his finding that the appellant was now socially and culturally integrated as per CI (Nigeria) v Secretary of State for the Home Department [2019] EWCA Civ 2027. Thirdly, the judge had failed to refer to the OASys report and to consider the risk of re-offending. Fourthly, the judge had failed to have proper regard to the public interest. Permission was granted on all grounds in the First-tier Tribunal.
Upper Tribunal: Error of Law
14. The matter then came before myself initially on 31 March 2025, but was adjourned in order to enable the appellant to put his solicitors in funds or find alternative representation, and then came before me again on 30 May 2025, despite further unsuccessful adjournment requests. On that occasion the appellant was represented by his current solicitors and instructed by Mr Nathan who applied for an adjournment again in order to await confirmation of legal aid funding. The adjournment request was refused and the appeal proceeded with Mr Nathan representing the appellant. The appellant’s appeal against the Stage 1 deportation decision appeared to have been listed alongside the Stage 2 human rights appeal, as UI-2025-000312, despite the appeal having been withdrawn in the First-tier Tribunal and Mr Nathan sought to have that appeal reinstated. His application was refused on the grounds that the Upper Tribunal had no jurisdiction in the matter and that there had been an administrative error in according it an Upper Tribunal reference number and listing it for hearing in the Upper Tribunal, the appeal having been withdrawn in the First-tier Tribunal. I issued a separate decision in relation to that appeal confirming that it was not before the Upper Tribunal.
15. The appellant’s appeal against the Stage 2 deportation decision/ the refusal of his human rights claim, then proceeded. In a decision promulgated on 17 June 2025, I set aside the First-tier Tribunal’s decision on the following basis:
“Analysis
24. Mr Nathan accepted that the appellant had been lucky to have received the decision that he did from the First-tier Tribunal. His submission was that the decision, whilst a generous one, was nevertheless one which was open to the judge and did not contain any errors of law. I have carefully considered whether the respondent’s challenge is therefore effectively a disagreement with a generous decision or whether it does in fact identify errors of law made by the judge. I have to conclude that the challenge is not a simple disagreement. The grounds identify various deficiencies in the judge’s decision which are material to the outcome.
25. At [50] of the judgment in HA (Iraq), the Supreme Court cited Jackson LJ in NA (Pakistan) v Secretary of State for the Home Department & Ors [2016] EWCA Civ 662 at [32] and [33], as follows:
“32. Similarly, in the case of a medium offender, if all he could advance in support of his Article 8 claim was a "near miss" case in which he fell short of bringing himself within either Exception 1 or Exception 2, it would not be possible to say that he had shown that there were "very compelling circumstances, over and above those described in Exceptions 1 and 2". He would need to have a far stronger case than that by reference to the interests protected by Article 8 to bring himself within that fall back protection. But again, in principle there may be cases in which such an offender can say that features of his case of a kind described in Exceptions 1 and 2 have such great force for Article 8 purposes that they do constitute such very compelling circumstances, whether taken by themselves or in conjunction with other factors relevant to Article 8 but not falling within the factors described in Exceptions 1 and 2. The decision maker, be it the Secretary of State or a tribunal, must look at all the matters relied upon collectively, in order to determine whether they are sufficiently compelling to outweigh the high public interest in deportation.
33. Although there is no 'exceptionality' requirement, it inexorably follows from the statutory scheme that the cases in which circumstances are sufficiently compelling to outweigh the high public interest in deportation will be rare. The commonplace incidents of family life, such as ageing parents in poor health or the natural love between parents and children, will not be sufficient.”
26. The First-tier Tribunal in this appellant’s case found, at [61], that the case was a ‘near miss’. Following on from the guidance in NA, as endorsed in HA (Iraq), the appellant would “need to have a far stronger case than that by reference to the interests protected by Article 8 to bring himself within that fall back protection”. However, as the grounds of challenge assert, and as Ms Nolan submitted, it is difficult to ascertain from the judge’s decision what are the factors which make the appellant’s such a “far stronger case”. The judge simply relied upon the same factors which led him to find the exceptions partially met. Indeed the judge’s decision on social and cultural integration in the UK was made with reservations, as is apparent from his findings at [37] and [38].
27. Of particular significance is the judge’s failure to make any findings on the appellant’s risk of re-offending. He touched on the matter at [47] but did not actually engage with the risk assessment in the OASys report. The grounds of challenge mention in particular section 11.10 of the OASys report (page 25 of 53) referring to deficits in the appellant’s behaviour which were relevant to the risk of future offending. There is no indication that the judge considered that. The judge took account of the lack of re-offending by the appellant, but the relevant period since his release was only two months prior to the hearing (the appellant was granted bail on 11 October 2024 (see [30]). The judge acknowledged that the period was short, but referred to the two year period since the appellant’s last offence. It is also relevant to note that the judge did not take into account the appellant’s history of offending. He listed the appellant’s past offences at [17] and [18], but it seems from his comment at the end of [44] that he considered himself restrained from having any regard to that history, which was clearly not correct. Whilst the deportation proceedings arose from offending in 2022/23 and not from offences prior to December 2020, that did not preclude the judge from considering the appellant’s history of offending as part of a future risk assessment.
28. In the circumstances I cannot agree with Mr Nathan that the grounds are simply a disagreement with a generous decision. Rather, there are material errors in the judge’s decision which are properly identified in the grounds and which make the judge’s conclusions unsustainable. The decision has, therefore, to be set aside and re-made.
29. As for the onward disposal of the appeal, Mr Nathan submitted that there should be a remittal to the First-tier Tribunal for a fresh hearing on all matters. Ms Nolan, however, submitted that the decision should be re-made in the Upper Tribunal, preserving the First-tier Tribunal Judge’s findings on the exceptions to deportation. I agree with Ms Nolan. There are findings made by the judge which are not infected by any errors and which can be preserved. There is no challenge to the judge’s findings on the family life exception to deportation. There is some merit in the assertions made in the grounds and in Ms Nolan’s submissions that the judge’s findings on social and cultural integration, for the purposes of the private life exception, were somewhat contradictory. However I do not agree that the overall conclusion in that respect was materially erroneous, considering that the appellant had lived here since the age of three. The judge’s conclusion can therefore be preserved. Mr Nathan sought to persuade me that the judge’s findings on very significant obstacles to integration in the Netherlands ought to be re-visited, but there had been no challenge to those findings in the rule 24 response and no cross-appeal in that regard. In the circumstances the findings are preserved.
30. Accordingly, the decision needs to be re-made only with regard to the issue of ‘very compelling circumstances’. In such circumstances the appropriate course is for there to be a resumed hearing in the Upper Tribunal hearing, on a date to be notified to the parties, for that purpose.”
16. Directions were made for the filing and service of any additional evidence upon which the parties sought to rely at the resumed hearing, with particular reference to the most recent OASys report which was not currently available.
Upper Tribunal: Re-making the Decision
17. The matter was listed for a resumed hearing on 14 August 2025 but was adjourned to await the latest OASys report which was being prepared by the appellant’s Offender Manager, and then came before me on 8 October 2025. A consolidated appeal bundle was produced for the hearing which included the evidence before the First-tier Tribunal and for the error of law hearing, together with updated witness statements from the appellant and his partner and her mother, evidence of the appellant’s recent training courses and an updated OASys report. I have carefully read and considered all of these documents and have taken them into account when making my decision, whether specifically referred to or not.
18. The appellant attended the hearing together with his partner. His partner’s mother was to attend remotely. All three were intending to give oral evidence for the appeal. However Ms Gilmour advised me that she did not wish to cross-examine the witnesses but accepted the contents of their statements and said that she would just be making submissions. She accepted a further update from Mr Nathan, that the appellant’s partner had returned to being a full-time student and was also working part-time for a medical practice, and that the appellant had been working as part of an events crew and had begun a railway course in August 2025 which ended the following day with training on the tracks, and would then be able to interview for jobs on the railway. Mr Nathan explained that although there would be an interview, that was a formality and there was plenty of work available, so that employment was guaranteed.
19. Both parties then made submissions.
20. Mr Nathan submitted that there had been no challenge to the First-tier Tribunal Judge’s findings on what he referred to as the checklist in Unuane v. the United Kingdom (2021) 72 EHRR 24, as quoted at [51] of HA (Iraq) v Secretary of State for the Home Department [2022] UKSC 22, namely factors relevant to the consideration of ‘very compelling circumstances’ and he identified the judge’s failure to consider the appellant’s ‘risk of re-offending’ as being, therefore, the only issue which had been found to give rise to the error of law. He went on to make submissions in regard to that issue, referring to the most recent OASys report and also comparing it to the previous one. He made various specific references within the new OASys report which he submitted showed that the appellant had moved away from his old life-style and had a good attitude to finding work and to his family life with his partner and child. Mr Nathan referred to the predictor scores percentage and risk category, at page 49 of 58 of the recent OASys report and compared it to the previous OASys report at page 45 of 53. He submitted that the scores had been explained to him by the appellant’s probation officer and that the RSR (risk of serious recidivism), OVP (probability of proven violent-type offending) and OGP (probability of proven non-violent offending) were dynamic indicators which were capable of changing with compliance and had all reduced, whereas the OGRS showed a medium risk because that was objective and static and could not change. He submitted that the reduced scores showed that the appellant’s risk had reduced and that that was a significant factor, as was the time which had elapsed since the offending and since being out of prison. Mr Nathan submitted that other relevant matters of weight, as accepted by the First-tier Tribunal when considering the factors in Unuane, had been that the appellant had no ties to the Netherlands and no family there, whereas he had a partner and daughter in the UK. Mr Nathan also relied upon the First-tier Tribunal’s finding that it would be unduly harsh for the appellant’s partner and child to relocate to the Netherlands. He submitted that there would be very significant obstacles to the appellant’s integration into the Netherlands and that he was socially and culturally integrated in the UK, with the best interests of his child being to remain with him in the UK. Whilst the First-tier Tribunal Judge had found that it would not be unduly harsh on the appellant’s partner and child to be separated from him, matters had now moved on and the appellant had been living with his partner and child for some time. The best interests of his child carried significant weight. Mr Nathan submitted that, whilst the appellant had been found by the First-tier Tribunal to fall short of both exceptions, he was now able to meet the test for ‘very compelling circumstances’ in line with [32] of NA (Pakistan) v Secretary of State for the Home Department & Ors [2016] EWCA Civ 662, as quoted at [50] of HA (Iraq).
21. Ms Gilmour accepted that there had been a movement in the facts but she submitted that things had not moved on significantly and that the very compelling circumstances threshold had not been reached. Although the appellant was doing a railway training course and had been working previously, the fact was that he was not currently working and the situation was therefore not that different to previously. As for the risk of re-offending, Ms Gilmour submitted that whilst Mr Nathan had provided an explanation for the category of risk of re-offending not having dropped, it was still the case that the appellant was considered to be a medium risk. Ms Gilmour relied upon the predictors set out in the first section of the OASys report which showed that the appellant was clearly a person who had a propensity to re-offend. She referred to other parts of the OASys report which referred to the appellant’s previous offending being financially motivated and she referred to the fact that he was currently not working. She relied on the references in the OASys report to the appellant’s pattern of offending and five convictions for eight offences which included violent offending, and the fact that he had breached the terms of his suspended sentence in 2022 and had shown a flagrant disregard for the criminal justice system. Ms Gilmour submitted that limited weight could be attached to the appellant’s proposed work for the railways following the completion of his training course, as that involved speculation. The appellant remained reliant upon his family and his partner for financial support and so, realistically, the situation had not changed from previously. Ms Gilmour submitted that, whilst the OASys report referred to the appellant having had a ‘wake-up call’ since becoming a father, he had committed his latest offences after becoming a father, so that whilst he was saying the right things to the right people, his behaviour spoke otherwise. Having a family had not been enough to stop him committing offences previously. Ms Gilmour submitted that the appellant remained a medium risk and that that was a strong factor in favour of the public opinion. It would not be unduly harsh for the appellant to be separated from his partner and daughter and he would not face destitution in the Netherlands, but would simply face an initial culture shock. The appeal should be dismissed.
22. In response, Mr Nathan submitted that Ms Gilmour had failed to address the evidence of the appellant’s improvement, as shown in the OASys report. His compliance had led to a significant reduction in the dynamic assessment of his risk of re-offending. His violent offending had occurred when he was 14 or 15 years of age and his later offending related to running up debts with drug dealers, whereas he had since abstained from drugs. Mr Nathan submitted that the impact on the appellant’s child if he was deported would be significant, and it was relevant to consider that in the context of his own mother having abandoned him when he was a child.
Analysis
23. The starting point for the re-making of the decision in the appellant’s appeal is the preserved findings of the First-tier Tribunal. Those findings were that the appellant could not meet either exception to deportation. More specifically, it was found that, whilst it would be unduly harsh for the appellant’s partner and daughter to relocate to the Netherlands, it would not be unduly harsh for them to remain in the UK without him; and that whilst the appellant had lived in the UK for most of his life, was currently socially and culturally integrated here, and would face real and significant obstacles to integration in the Netherlands, any such obstacles would not be very significant such as to meet the private life exception to deportation.
24. Those findings were not previously challenged by the appellant and they therefore remain preserved, as I stated in my decision on the error of law. Mr Nathan, at the start of his submissions, said that there was a degree of artificiality in assessing ‘very compelling circumstances’ on the basis of preserved findings made some time earlier. I made clear to him, however, that he was not precluded from raising any matters relating to undue harshness or very significant obstacles arising from matters not before the First-Tier Tribunal, on the basis of subsequent developments in the appellant’s situation which may then lead to his circumstances being considered as very compelling. However there was nothing in his submissions which, in my view, identified any material change.
25. Whilst Mr Nathan’s submission was that there were very significant obstacles to the appellant’s integration in the Netherlands, as he would be an outsider in that country, he did not refer me to anything different to the circumstances before the First-tier Tribunal Judge in that regard. As the First-tier Tribunal Judge found, the appellant would benefit from the social safety net in the Netherlands so as not to be destitute, many people speak English well in the Netherlands albeit that the national language is Dutch which the appellant does not speak, the culture in the Netherlands is not very different from the UK, and the appellant could adapt to life in the Netherlands “giving him a reasonable opportunity to be accepted there, to be able to operate on a day-to-day basis in that society and to build up within a reasonable time a variety of human relationships to give substance to his private or family life”. None of that has changed. The appellant now relies upon evidence to show that he has, since leaving prison, undertaken a personal training course and a railway course and he has, according to his own evidence, therefore acquired skills which would assist him in finding employment in the Netherlands.
26. As for the unduly harsh issue regarding the appellant’s separation from his partner and child, I accept that, with the passage of time since the First-tier Tribunal’s decision, there has been a development in the strength of his family life. The appellant has now been living with his partner and child for almost a year after being released from prison, as opposed to only two months at the time of the appeal before the First-tier Tribunal, and he is therefore considerably more involved in his daughter’s life. However, again, there is nothing which in my view is material to the legal test when considering the question of undue harshness. The appellant’s daughter is not yet three years of age and has spent most of her life so far being separated from her father whilst he was in prison. There is no evidence to suggest that that has been, or would be, materially detrimental to her well-being other than what can be expected from a separation from a parent. Although her best interests would be to live with both of her parents, her best interests are also well-served by remaining with her mother who has been her sole carer for a substantial part of her life. Whilst the appellant has been assisting Ms Lawson with child-care since his release from prison, she has managed without him being available, and has her mother to assist her. I acknowledge, from the statements of Ms Lawson and her mother, that that has not been without its difficulties, but they have nevertheless managed the situation in the appellant’s absence. Further, as Jackson LJ held in NA (Pakistan) at [34]:
“The best interests of children certainly carry great weight... Nevertheless, it is a consequence of criminal conduct that offenders may be separated from their children for many years, contrary to the best interests of those children. The desirability of children being with both parents is a commonplace of family life. That is not usually a sufficiently compelling circumstance to outweigh the high public interest in deporting foreign criminals.”
27. It is also relevant to consider that the Netherlands is not far from the UK and is easily accessible without too much expense. It would therefore be open to the appellant’s partner and child to visit him regularly and to stay with him for periods of time when Ms Lawson’s work and studies permit. In the circumstances there is no basis for reaching any conclusion other than that already reached by the First-tier Tribunal, namely that it would not be unduly harsh for the appellant’s partner and child to be separated from him if he was deported to the Netherlands.
28. It was Mr Nathan’s submission that the only basis upon which an error of law was found in the First-tier Tribunal Judge’s decision was the judge’s failure to consider the appellant’s risk of re-offending, a matter that he submitted was now of lesser significance given that the risk had materially reduced and which, therefore, ought to lead to the appeal being allowed when considered with the positive findings made by the First-tier Tribunal Judge in addressing the ‘checklist’ in Unuane. However I do not accept that that accurately represents the correct position.
29. Firstly, the judge’s failure to consider the appellant’s risk of re-offending was not the only basis upon which he was found to have erred in his decision. As made clear at [26] of my decision of 17 June 2025, the error also lay in the judge simply relying upon the same factors which had led him to find the exceptions partially met, to conclude that the appellant had demonstrated very compelling circumstances, without identifying any additional factors making the case a “far stronger case ” as per [33] of NA (Pakistan). On the evidence before me at this point, I am unable to ascertain what additional factors there are which would make the appellant’s case a stronger case than that by reference to the interests protected by Article 8. The main factors in the appellant’s favour appear to me to be his lack of connections to the Netherlands, the length of time spent living in the UK as opposed to the negligible period of time resident in the Netherlands, and his family life with his partner and daughter. However these factors have already been found to be insufficient to meet the exceptions to deportation, and I do not consider them sufficiently weighty, or to “have such great force for Article 8 purposes” ([32] of NA (Pakistan) ) when considered together and in conjunction with any other factors relevant to Article 8, to amount to ‘very compelling circumstances’.
30. Secondly, whilst I accept that there has been an improvement in the risk posed by the appellant to the public, both the risk of harm and of re-offending, I do not consider that that is sufficient to enhance his circumstances to a point whereby they could be considered to be very compelling. I have had careful regard to the latest OASys report, both in isolation and as compared to the previous report. With regard to the detailed explanation provided in the OASys report for the appellant’s offending in January 2023, which he claimed arose from him owing an outstanding debt for drugs and being coerced by the drug dealers to commit the index offences, I note that that explanation was considered by the First-tier Tribunal Judge in his decision at [22]. The judge gave the matter little weight, for reasons which have not been challenged, although I have taken the appellant’s explanation for his offending into account when undertaking my own assessment.
31. Both the current and the previous OASys reports refer to the appellant stating that he had reached a point in his life that he was ready to change his attitude and lead a law abiding life for the sake of his partner and child. He has not offended since that previous offence in January 2023 and has now been out of prison and detention for a year. Since the previous OASys report the appellant has been living with his partner and child and therefore this would have given him some form of stability. The current OASys report at 6.11 states that “Mr Tonto has stated on previous reports that he wants to turn his life around in order to provide for his daughter and partner, safeguarding and police checks support this, evidence shows he is trying to achieve this, therefore it is my assessment that Relationships is not linked to risk of serious harm or offending behaviour.” Nevertheless it is also relevant to note, as Ms Gilmour submitted, that the appellant’s relationship and fatherhood did not prevent him from offending previously. The appellant has also, since the previous report, engaged in employment and undertaken training with a view to working on the railways, employment which Mr Nathan said is guaranteed albeit requiring an interview first. I note that the most recent OASys report, at section 11.10, states that “his actions of completing a railway course demonstrates a positive impact and a pro-social way of thinking and behaviour”. Although that clearly is a positive step, it is the case, as Ms Gilmour submitted, that the appellant is not yet working at the railway and it would be speculative to accord too significant an amount of weight to the matter. Indeed I note from the previous OASys report, at 4.10, that the appellant had previously been sacked from employment on four occasions for not working hard enough.
32. There are both negative and positive comments about the appellant’s risk-taking behaviour in the current OASys report. Section 7.5 of the recent OASys report refers to him evidencing little remorse for his offence, to being fully aware that the house he was going to was a house that had been ‘cuckooed’ and that there were vulnerable people living there, and to him evidencing impulsivity and a lack of consequential thinking and problem solving. However there is also reference to him more recently dedicating his time to trying to improve himself and having moved away from his old lifestyle. The report refers to the appellant being abstinent from drugs since his offence and having had a drugs test for his railway course. At 11.10 the report refers to the appellant making progress in his thinking and behaviour, but still struggling with engagement with the probation services. At 12.9 the report refers to the appellant having made “significant changes since his release from custody, which has been evidenced through his pro-social attitude and behaviour in the community since 16/10/2024”, but also refers to him having “shown superficial compliance and engagement with the probation services, this has been demonstrated by his communications with his probation practitioner being ad-hoc at best, this will need to be addressed moving forward in one-to-one sessions using structured toolkits with a view to change to pro-social thinking.”
33. As for the statistics relating to risk, the appellant has progressed from an OVP 1 year % score of 18 to 14, and an OVP 2 year % score of 30 to 23, and his OVP risk of reoffending has reduced from medium to low. The appellant’s risk to the public (R10.6) remains as medium. Mr Nathan sought to persuade me that that was a static indicator, which meant that it could not change, and therefore that weight should not be accorded to it. However R11.12 specifically states that the appellant has been assessed as medium risk to the public and that is the evidence before me. I do take account, however, of the other indicators of him being a low risk in all other respects and the report of him being very motivated to address his offending behaviour. I accept that the more violent offending committed by the appellant was when he was a child of 14 or 15 years and living in difficult circumstances. Nevertheless I note that it was only as recently as 2022 that the appellant was found in possession of a flick knife, that he received sanctions for his behaviour whilst in prison (section 1.32), that there have been indicators of flagrant disregard for the criminal justice system as recently as early 2023 (section 2.12) and that there have been recent concerns as to his compliance with the probation services. I accept that there are protective factors which reduce the appellant’s risk, namely the likelihood of work on the railways and his strong family ties to his partner and daughter. However, even if the appellant is considered on the whole to be a low risk, there still remains a risk, particularly if any of the protective factors fall away.
34. In the circumstances, whilst there have been some positive developments in terms of the appellant’s rehabilitation, and whilst there are protective factors which may have led, and may lead, to the appellant turning his life around, it seems to me that the current situation nevertheless remains somewhat precarious, particularly as he has not even been out of prison for a full year and that he remains under close supervision, being on licence and with the threat of deportation hanging over him. As Ms Gilmour submitted, the appellant is not currently employed. It is claimed that the appellant has previously been in employment, working in events, which is not disputed, although the evidence is limited to confirmation of him being on the Key Structures team for erecting marquees and available for shift work but with no confirmation of the extent of work undertaken. There is also evidence of the appellant starting a diploma as a gym instructor, but no evidence that he completed the course nor that he commenced any employment in that area. It is said that employment is guaranteed on the railways, after completion of the railway training course the following day, but there is still an interview process to be followed and no evidence of a guaranteed offer of employment. Clearly financial uncertainty was an issue previously for the appellant in terms of his offending. It seems to me that there is accordingly nothing in terms of the appellant’s rehabilitation which materially assists him in demonstrating very compelling circumstances outweighing the public interest in his deportation. As already discussed, he has not provided evidence of anything else amounting to very compelling circumstances in his case which could outweigh the public interest in his deportation. As Ms Gilmour submitted, the threshold to meet that requirement is high, and I agree that the appellant falls short of that threshold. As such, the appellant’s removal to the Netherlands pursuant to the deportation order issued against him would not be disproportionate and would not be in breach of Article 8.
35. At this point I address a matter raised by Mr Nathan at the end of the hearing, in relation to the previously linked appeal, UI-2025-000312. Mr Nathan referred to my observation at [20] of my decision of 17 June 2025, that it would be open to the appellant to make an application to the First-tier Tribunal for his appeal in that case to be reinstated should the outcome of the Court of Appeal decision in Vargova be favourable to him. He asked that I make a recommendation, in the event that I dismiss the appellant’s appeal, that the Secretary of State do not take enforcement action against him for 14 days after the Court of Appeal judgment in Vargova. However I do not believe that I have power to make any such recommendation and neither would it be appropriate for me to do so.
DECISION
36. The decision of the First-tier Tribunal having been set aside, the decision is re-made by dismissing the appellant’s human rights appeal.

Signed: S Kebede
Upper Tribunal Judge Kebede

Judge of the Upper Tribunal
Immigration and Asylum Chamber
10 October 2025