Tribunal decisions

The decision

IN THE UPPER TRIBUNAL
IMMIGRATION AND ASYLUM CHAMBER
Case No: UI-2025-000302

First-tier Tribunal No: HU/04041/2021

THE IMMIGRATION ACTS

Decision & Reasons Issued:

28th May 2025

Before

UPPER TRIBUNAL JUDGE HOFFMAN
DEPUTY UPPER TRIBUNAL JUDGE ZUCKER

Between

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Appellant
and

COLLINS CUTHBERT LEWIS
(ANONYMITY ORDER NOT MADE)
Respondent

Representation:
For the Appellant: Ms S Leconte, Senior Home Office Presenting Officer
For the Respondent: Mr A Osman of counsel instructed by Turpin & Miller Solicitors

Heard at Field House on 21 May 2025

DECISION AND REASONS

1. The Secretary of State (“SSHD”) appeals with permission against the decision of First-tier Tribunal Judge Baffa promulgated on 17 December 2024 allowing the respondent, Mr Lewis’s, appeal against the decision to deport him from the UK.
Background

2. Mr Lewis is a national of Dominica and was born there on 28 August 1993. Mr Lewis entered the UK on 29 September 2007 aged 14 years old on a visit visa valid until 29 March 2008.

3. On 22 March 2008 he applied for indefinite leave to remain as a dependant of his father. That application was refused by the SSHD, but Mr Lewis was instead granted limited leave to remain until his 18th birthday, being 28 August 2011.

4. On 26 August 2011 Mr Lewis applied on compassionate grounds for leave to remain outside the rules. On 13 December 2011 that application was refused by the SSHD.

5. Not content with that decision Mr Lewis appealed. In a determination dated 3 September 2012 Immigration Judge Wiseman allowed his appeal. As a result, on 16 October 2012, Mr Lewis was granted leave to remain valid until 16 October 2015.

6. From April 2016, Mr Lewis was convicted of various offences. Most pertinently on 26 September 2019 he was convicted of possession with intent to supply crack cocaine and heroin, possession of a prohibited weapon and possession of cocaine and cannabis. He was sentenced on 3 October 2019 to 45 months’ imprisonment (3 years and 9 months).

7. Mr Lewis was served by the SSHD on 19 October 2019 with a decision to make a deportation order. Mr Lewis made representations against that decision which included a human rights claim and the SSHD then made a decision refusing Mr Lewis’s human rights claim dated 8 July 2021. Mr Lewis gave notice of appeal against that decision.

8. Mr Lewis was further convicted following a guilty plea on 1 July 2024 of being concerned in the supply and possession with intent to supply cocaine and heroin along with possession of cannabis for which he received a sentence of 64 months imprisonment (5 years and 4 months). The SSHD as a result produced a supplementary decision letter dealing with this further conviction dated 2 September 2024.

9. That appeal was heard by First-tier Tribunal Judge Baffa sitting at Hendon Magistrates Court on 10 December 2024. In a Decision promulgated on 17 December 2024, Judge Baffa allowed that appeal on human rights grounds.

10. Together with Grounds dated 23 December 2024 the SSHD made application for permission to appeal to this Tribunal which permission, on 25 January 2025, was granted by First-tier Tribunal Judge Chowdhury on all grounds.

11. In her grounds the SSHD, in essence, contends that Judge Baffa failed to give adequate reasons for his findings that there were very compelling circumstances to the case, when, in reliance upon guidance in the case of SSHD v Garzon [2018] EWCA Civ 1225 and Hesham Ali v SSHD [2016] UKSC 60 38, it is said that the threshold is high. The SSHD contends that the Judge attached:

(i) too much weight to the relationship of Mr Lewis to his son with no finding concerning the nature of that relationship;
(ii) too much weight to Mr Lewis’s ill-health;
(iii) insufficient weight to Mr Lewis’s risk of re-offending;
(iv) inadequate reasons for finding Mr Lewis’s claim of lack of support in the Dominica meets the “very compelling circumstances test”;
(v) gave too much weight to the nature of the medical treatment which would be available to Mr Lewis in Dominica;
(vi) the analysis of the evidence was lacking given the guidance in OH Serbia v SSHD [2008] EWCA Civ 694, and (vii) the requirements of section 117B of the Nationality, Immigration and Asylum Act 2002, as amended.
The hearing of the appeal

12. We say at the outset that we were very grateful to Ms Leconte for the very realistic approach that she took to this appeal, recognising as she did the limitations placed on her by the agreement at first instance that the “sole” issue before the First-tier Tribunal to be resolved by Judge Baffa was whether there were very compelling circumstances that outweighed the public interest in the appellant’s deportation. As she said, her hands were tied such that it was not open to her to argue that wider considerations of Article 8 ECHR should have been scrutinised.

13. Notwithstanding the difficulties which Ms Leconte faced in advancing her appeal, we did not want to inhibit her from making such submissions as she thought might assist us in coming to the correct decision in this appeal.

14. Picking up on the sixth of the grounds Ms Leconte invited us to find that there had been no proper analysis of the provisions of section 117B of the Nationality Immigration and Asylum Act 2002 Act. She also reminded us of the guidance in the case of Dube (ss.117A-117D) [2015] UKUT 90 (IAC), which provides:

(1) Key features of ss.117A-117D of the Nationality, Immigration and Asylum Act 2002 include the following:

(a) judges are required statutorily to take into account a number of enumerated considerations. Sections 117A-117D are not, therefore, an a la carte menu of considerations that it is at the discretion of the judge to apply or not apply. Judges are duty-bound to “have regard” to the specified considerations.

(b) these provisions are only expressed as being binding on a “court or tribunal”. It may be that the Secretary of State will consider it in the interests of good administration and consistency of decision-making on Article 8 claims at all levels to have express regard to ss.117A-117D considerations herself, but she is not directly bound to do so.

(c) whilst expressed in mandatory terms, the considerations specified are not expressed as being exhaustive: note use of the phrase “in particular” in s.117A(2): “ In considering the public interest question, the court or tribunal must (in particular) have regard—

(d) section 117B enumerates considerations that are applicable “in all cases”, which must include foreign criminal cases. Thus when s.117C (which deals with foreign criminals) states that it sets out “additional” considerations that must mean considerations in addition to those set out in s.117B.

(e) sections 117A-117D do not represent any kind of radical departure from or “override” of previous case law on Article 8 so far as concerns the need for a structured approach. In particular, they do not disturb the need for judges to ask themselves the five questions set out in Razgar [2004] UKHL 27. Sections 117A-117D are essentially a further elaboration of Razgar’s question 5 which is essentially about proportionality and justifiability.
(2) It is not an error of law to fail to refer to ss.117A-117D considerations if the judge has applied the test he or she was supposed to apply according to its terms; what matters is substance, not form.

15. Ms Leconte invited us to find that the structured approach required by the guidance in Dube (supra) was missing.

16. Still further Ms Leconte invited us to find that insufficient weight had been given to the guidance in HA (expert evidence; mental health) Sri Lanka [2022] UKUT 00111 (IAC) which in particular reminded judges to be cautious when accepting the evidence of psychiatrists giving evidence in favour of a person liable to removal given the incentive on the part of the person, the subject of the proposed removal to fabricate their evidence.

Discussion

17. As we have already observed, the parties to this appeal at first instance agreed the sole issue to be resolved by Judge Baffa was whether there were very compelling circumstances that outweighed the public interest in the appellant’s deportation. That did not mean that the statutory requirement to consider the provisions of sections 117A-D were dispensed with. It meant that subject to the consideration of the “sole issue” the provisions of section 117B were to be read so as to favour Mr Lewis.

18. Parties are encouraged to narrow the issues. It is in the interests of justice for them to do so. It is consistent with the obligation under the Procedure Rules to assist the Tribunal. We remind ourselves of the guidance in the case of Lata (FtT: principal controversial issues) [2023] UKUT 00163 (IAC) which provides guidance supportive of the narrowing of issues.

19. Having observed that it is in the interest of justice for parties to narrow the issues so far as they can it is equally important that sufficient thought is given by the parties to what they agree because this Tribunal will be slow to look behind such agreements.

20. Though Ms Leconte invited us to look with care at the psychiatric evidence relied upon, we note that the evidence was not challenged in the First-tier Tribunal and the various witnesses called to give evidence for Mr Lewis were each found credible. Indeed, the issue of exaggeration was considered by the Judge (see paragraph 54) and resolved in Mr Lewis’s favour.

21. Without condescending to each of the complaints made by the SSHD on the basis that it is trite law to observe that a Judge does not need to deal with each and every point, provided it is clear why a particular party has won or lost, we note that at paragraph 95, Judge Baffa accepted that Mr Lewis intended to have contact with his son, supported by the evidence of Dr Heron whose evidence, together with that of Dr Al-Juffali, also went to the support that which would (or rather would not) be available to Mr Lewis, a sufferer of post-traumatic stress disorder. Judge Baffa found, as was open to him, that the treatment available would not meet Mr Lewis’s needs and that he had no family support network to turn to in Dominica. More generally Judge Baffa made his findings on having found, as we have noted, Mr Lewis and his witnesses credible.

22. Even were we to discount the evidence of the intended relationship of Mr Lewis with his son, still there was sufficient basis for Judge Baffa to find as he did. As we pointed out to Ms Leconte it was not for us to substitute our own views in the appeal with those of the Judge. The issue for us was whether the Judge made findings of fact that were open to him on the available evidence. Ms Leconte did not demur.

23. Whilst we deprecate the conduct of Mr Lewis, we cannot ignore the fact that Judge Baffa saw and heard from the Mr Lewis and his witnesses, having found all to be credible, and concluded by stating:

“I go so far as to say that this is not a case which is “finely balanced”, like many cases are. I find that the factors as found above are such that they tip the balance firmly in favour of the appellant despite his serious criminal offending history”.

24. Though we find ourselves bound by the sole issue agreed to be resolved and by our finding that the decision whether there were very compelling circumstances that outweighed the public interest in Mr Lewis’s deportation was a finding of fact, rather than law, open to Judge Baffa, we do not think that the decision the Judge reached was necessarily one that would have been reached by all judges. We would not be surprised if, in the future, Mr Lewis’s were to reoffend, another Tribunal would come to the view that such offending tipped the balance the other way.
Notice of Decision

The appeal to the Upper Tribunal is dismissed.

The Decision of the First-tier Tribunal shall stand.

Deputy Judge of the Upper Tribunal
Immigration and Asylum Chamber

23 May 2025