Tribunal decisions

The decision

IN THE UPPER TRIBUNAL
IMMIGRATION AND ASYLUM CHAMBER
Case No: UI-2025-000303 & UI-2025-000304

First-tier Tribunal No: EA/01304/2024 & HU/01699/2024

THE IMMIGRATION ACTS

Decision & Reasons Issued:

On 2nd of December 2025

Before

UPPER TRIBUNAL JUDGE PINDER

Between

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Appellant in UT
and

M V
(ANONYMITY ORDER MADE)
Respondent in UT

Representation:
For the Appellant in UT: Mr Lawson, Senior Presenting Officer.
For the Respondent in UT: Mr C Williams, Counsel instructed by Fountain Solicitors.

Heard at Birmingham Civil Justice Centre on 15 September 2025

Order Regarding Anonymity

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

DECISION AND REASONS

1. The Appellant Secretary of State appeals against the decision of the First-tier Tribunal (‘the FtT’) dated 25th November 2024. In this decision, the FtT allowed the Appellant’s appeal against the Respondent’s decision of 5th September 2024, in which the Respondent refused the Appellant’s human rights claim and decided to deport him from the UK.

2. For ease of reference, I will refer to the parties as they appeared below, namely to the Secretary of State as the Respondent and Mr Vinarsku as the Appellant.

3. I have made an Anonymity Order in favour of MV, the Respondent in the appeal in the Upper Tribunal and Appellant in the FtT. I considered the issue of anonymity of my own initiative and directed both parties to address this in written submissions after the hearing on 15th September 2025 raising my pre-liminary reasons with both parties in these same directions for being minded to issue such an order. Within the timescales provided in my directions, I have not received any objection from the Secretary of State and I received correspondence from those representing M V confirming that they would not object on his behalf to such an order being made.

4. In light of the above, I have decided to make such an order because I consider, on the specific facts of this appeal, that a derogation from the principle of open justice is justified. This is because of the Appellant’s children. They are of an age (12 and 7 years old) that they can easily access the internet and there are real and justified concerns that identifying the Appellant in any publication or reporting of the decision in this appeal, when issued, would be likely to be accessed by the Appellant’s children and those close to the family. I consider that this would likely cause harm to the Appellant’s children.

Factual and procedural background

5. The Appellant is a citizen of Lithuania who is 36 years old. He was granted permanent residence in 2020 under the EU Settlement Scheme. Insofar as is relevant to these proceedings, the Appellant was convicted on 26th February 2024 causing serious injury by dangerous driving, driving a motor vehicle with excess alcohol, driving otherwise than in accordance with licence and using a motor vehicle on a road/public place without third party insurance. For these offences, the Appellant was sentenced to 28 months’ imprisonment.

6. As a result of these convictions, the Respondent sent a notice of intention to deport to the Appellant on 5th June 2024 asking him to provide any reasons as to why he should not be deported to Lithuania. The Appellant duly responded and provided written representations requesting that he be permitted to remain in the UK and it is that claim that was refused in the Respondent’s decision of 5th September 2024.

7. The Appellant appealed that decision to the FtT and his appeal was heard by the FtT on 11th November 2025.

The decision of the First-tier Tribunal

8. At [2], the FtT correctly recorded that the deportation to Lithuania of the Appellant was conducive to the public good and the issues in the case were whether the Appellant’s human rights claim came within any of the statutory exceptions to deportation (as well as amounting to ‘very compelling circumstances’) for the Appellant’s case to succeed on appeal under Article 8 of the ECHR.

9. The FtT heard oral evidence from the Appellant himself as well as from the Appellant’s wife. At [4]-[5], the Judge recorded a summary of the parties’ respective positions and legal submissions and at [6] set out their findings of fact and conclusions. The latter can be summarised as follows:

(a) The Judge made observations on the Appellant’s offending behaviour, noting that this was a relatively serious offence, demonstrating a blatant disregard for the law with the victim sustaining significant injuries at the time. The Judge noted factors in favour of the the Appellant and in mitigation, namely the work he has undertaken whilst in prison including on his use of alcohol and his guilty plea in the criminal trial. The Judge drew this together at [7] stating that they were satisfied that there remains a strong public interest in the Appellant’s removal;

(b) At [8], the Judge concluded in respect of the first statutory exception to deportation contained in s.117C(5) relating to the Appellant’s partner, that the Appellant has a genuine and subsisting relationship with her. The Judge was satisfied however that the Appellant’s deportation would not be unduly harsh in circumstances whereby the partner herself is Lithuanian, who visits Lithuania regularly, speaks the language and is familiar with the culture and social norms of that country. The Judge stated that a return to Lithuania may be harsh for her, but not unduly harsh. The Judge otherwise addressed that they were satisfied that the partner gave her evidence in a clear, honest and consistent way and that what she said about her circumstances and the impact of all of this on her children was likely to be accurate;

(c) Largely for the same reasons as those in respect of the partner, the FtT concluded at [9] that the Appellant could not meet the first statutory exception contained in s.117C(4) and there were therefore no ‘very significant obstacles’ to his integration on return. I need not elaborate any further on the Judge’s reasons for this since this is not an aspect of the FtT’s decision that is relevant to the appeal before me;

(d) At [10]-[11], the Judge went back to consider the statutory exception to deportation contained in s.117C(5), this time as it related to the Appellant’s children. The Judge accepted that the Appellant’s children were ‘qualifying children’ for the purpose of this provision and considered whether the Appellant’s deportation would be unduly harsh on the Appellant’s eldest child;

(e) In respect of the Appellant’s eldest child, the FtT found that:

(i) The child has spent most of their formative years in the UK (12 years) and would, as a consequence, have developed a significant private life in this country, very likely distinct from that of the child’s parents. The Judge noted supporting evidence from the child’s school, the child themselves and the child’s mother, as well as other relevant documentary evidence. Noting in particular the mother’s evidence that the removal of the Appellant would have a “likely devastating emotional impact” on the child. The Judge concluded that the Appellant’s removal would “represent a very significant loss” to the child and their emotional wellbeing is bound very closely to the child having both their parents looking after them ([10]);
(ii) The child’s well-being would be seriously damaged by the Appellant’s absence ([11]);
(iii) The Judge noted the evidence of the partner that she has barely been able to cope in the Appellant’s absence whilst in prison and that contingent arrangements put in place were not ones that were sustainable in the long term ([11];
(iv) The consequential loss of income to the family as a result of the Appellant’s proposed deportation would also “seriously and detrimentally affect in a significant way the material wellbeing of the remaining family in the UK not least the appellant’s eldest (child) and indeed make travel to Lithuania by the family to see the Appellant much more difficult ([11];
(v) At [11], the Judge concluded from these findings that, having reference to the definition of undue harshness, these circumstances do capture the meaning of that phrase should the Appellant be deported and the child remain without him in the UK;
(vi) The Judge also considered the scenario whereby the whole family could relocate to Lithuania with the Appellant but concluded at [12] that this also would represent undue harshness, largely for the same reasons as those summarised at (i) above relating to the child’s own life established in the UK.

(f) Turning to the Appellant’s younger children, who are twins, the Judge concluded at [13] that they could not come within the definition of ‘qualifying child’, as they had not resided in the UK for as long as their older sibling. The Judge added that the younger children would also likely be able to adjust to living in a different country compared to their older sibling. The Judge was clear however that the scenario of them remaining in the UK without their father would affect them in the same was as that of their sibling;

(g) Lastly, the FtT considered the alternative test of ‘very compelling circumstances’ under s.117C(6) and whether this was met by the Appellant at [14]. The Judge drew together their earlier findings concerning the Appellant’s criminality and the public interest in his deportation, which I have summarised at para 9(a) above. The Judge also concluded that while he found the second statutory exception to be met in respect of the Appellant’s eldest child, namely that the Appellant’s deportation would be unduly harsh on them, the Judge was not of the view that this met the further elevated threshold of ‘very compelling circumstances’ over and above either of the other statutory exceptions in s.117C(4)-(5).
10. Accordingly, on the basis of the Judge’s conclusions on s.117C(5), the Judge went on to allow the Appellant’s appeal on article 8 ECHR human rights grounds.

The Appellant’s appeal to the Upper Tribunal

11. The Respondent Secretary of State applied for permission to appeal raising a single ground of appeal against the FtT’s decision and findings. This centres on the FtT’s conclusions in respect of the Appellant’s deportation being unduly harsh on the Appellant’s eldest child. The Respondent argues that while it is accepted that the Appellant plays an active parental role in his child’s life, this is not determinative that the Appellant’s deportation would result in unduly harsh consequences. The Respondent emphasises that there was no objective evidence from a third party, such as the child’s school or an independent social worker as to why this should be the case. The Respondent submits that the FtT failed to either have regard to the guiding authorities on how to apply the ‘unduly harsh’ test or failed to give adequate reasons for finding that this test was met.

12. The Respondent was refused permission to appeal by a different judge of the FtT but on a renewed application to this Tribunal, the Respondent was granted permission. In granting permission, the Upper Tribunal observed that while the Judge does refer to the self-direction in MK (Sierra Leone) v Secretary of State for the Home Department [2015] UKUT 223 (IAC)at [5(iii)], it is at least arguable that the Judge erred in law by failing to give sufficient reasons at [10] to [12] as to why the elevated threshold for demonstrating unduly harsh consequences had been met.

13. In response, the Appellant filed and served a reply under Rule 24 of the Procedure Rules.

14. At the hearing, both parties’ advocates made further oral submissions with Mr Williams, on behalf of the Appellant MV, defending the FtT’s decision. I have addressed the parties’ respective written pleadings and oral submissions in the section below when setting out my analysis and conclusions.

15. It was also confirmed at the hearing that following the directions of the Upper Tribunal issued on 15th July 2025, which directed MV to pay the Secretary of State’s costs arising from the hearing listed on 15th July 2025, which MV failed to attend, the Appellant MV consented to the amount stipulated in the Respondent Secretary of State’s schedule of costs. I have included a separate paragraph to this effect in the notice of decision below.

16. At the end of the hearing I reserved my decision and provide this below with my reasons.

Analysis and conclusions

17. Elaborating on the ground of appeal, the Respondent cited and summarised the relevant guidance from the leading authorities in criminal deportation cases and the application of the ‘unduly harsh’ test at paras 3-8 of the grounds of appeal. This includes MK, already referred to, as well as Secretary of State for the Home Department v PG (Jamaica) [2019] EWCA Civ 1213 at [46], KO (Nigeria) and others v Secretary of State for the Home Department [2018] UKSC 53, AD Lee v Secretary of State for the Home Department [2011] EWCA Civ 248 and HA (Iraq) [2020] EWCA Civ 1176.

18. The Respondent further submitted that the Judge failed to explore why the temporary arrangements put into place while the Appellant was in prison, and which the Judge noted at [11], could not be made more permanent nor why other arrangements could not be made instead, including why the Appellant’s partner could not care for the child without the Appellant. The Respondent acknowledged that the partner had claimed that she had struggled to cope on her own but the Respondent submitted that this was “merely a self-serving assertion intended to bolster the Appellant’s human rights claim”. In conclusion, it was said that the FtT had failed to consider that the child was of an age where emotional support may be provided through modern means of communication. The Judge’s reasoning that the Appellant’s deportation would result in undue harshness for his child simply did not establish that the high threshold was made out, as set out in the established case law cited.

19. Mr Lawson relied on the written grounds and reiterated that the Judge had not given sufficient reasons as to why the elevated threshold of ‘unduly harsh’ had been met in this appeal. The Judge had failed to consider what other extra support the Appellant’s partner might be able to receive either from the relevant social services or other sources.

20. Following careful consideration of the parties’ competing submissions, I am satisfied that the Judge was aware of and applied the correct legal framework to the Appellant’s circumstances and appeal – see [5iii] where the Judge cited HA (Iraq) and KO (Nigeria) as well as the “MK direction”.

21. I remind myself therefore of the guidance from Green LJ in the Court of Appeal in Ullah at [26], which provided as follows and which has application to the ground pursued by the Respondent:

Sections 11 and 12 TCEA 2007 Act restricts the UT's jurisdiction to errors of law. It is settled that:
(i) the FTT is a specialist fact-finding tribunal. The UT should not rush to find an error of law simply because it might have reached a different conclusion on the facts or expressed themselves differently: see AH (Sudan) v Secretary of State for the Home Department [2007] UKHL 49 [2008] 1 AC 678 at paragraph [30];
(ii) where a relevant point was not expressly mentioned by the FTT, the UT should be slow to infer that it had not been taken into account: e.g. MA (Somalia) v Secretary of State for the Home Department [2010] UKSC 49 at paragraph [45];
(iii) when it comes to the reasons given by the FTT, the UT should exercise judicial restraint and not assume that the FTT misdirected itself just because not every step in its reasoning was fully set out: see R (Jones) v First Tier Tribunal and Criminal Injuries Compensation Authority [2013] UKSC 19 at paragraph [25];
(iv) the issues for decision and the basis upon which the FTT reaches its decision on those issues may be set out directly or by inference: see UT (Sri Lanka) v The Secretary of State for the Home Department [2019] EWCA Civ 1095 at paragraph [27];
(v) judges sitting in the FTT are to be taken to be aware of the relevant authorities and to be seeking to apply them. There is no need for them to be referred to specifically, unless it was clear from their language that they had failed to do so: see AA (Nigeria) v Secretary of State for the Home Department [2020] EWCA Civ 1296 at paragraph [34];
(vi) it is of the nature of assessment that different tribunals, without illegality or irrationality, may reach different conclusions on the same case. The mere fact that one tribunal has reached what might appear to be an unusually generous view of the facts does not mean that it has made an error of law: see MM (Lebanon) v Secretary of State for the Home Department [2017] UKSC 10 at paragraph [107].

22. In addition, I also remind myself that the Judge’s decision should be respected unless it is quite clear that they have misdirected themselves in law. Appellate courts should not rush to find such misdirection simply because they might have reached a different conclusion on the facts or expressed themselves differently: AH (Sudan) v Secretary of State for the Home Department [2007] UKHL 49; [2008] 1 AC 678, at [30].

23. The Judge’s decision is detailed and comprehensive. It addressed the parties’ competing positions and evidence. The Respondent has not sought to challenge the Judge’s findings at [10] relating to the eldest child’s “significant private life” and “formative years” established in the UK, which is “distinct” from that of her parents. As was made clear by the Judge themselves, these findings were reached on the basis of evidence from the schools, the child’s own statement and the partner’s evidence, which the Judge accepted.

24. It is also clear that the Judge considered a variety of factors on a cumulative basis at [10]-[12]. The Judge used terms to describe the likely impact of the Appellant’s deportation on the eldest child, whether these terms were adopted from the partner’s oral evidence or the Judge’s own terms, which fell - on the Judge’s finding - within the definition of undue harshness. Those terms include (see [10]-[12]):

• “the likely devastating emotional impact”;
• “a very significant loss” in a context whereby the child’s “emotional wellbeing is therefore bound very closely to (them) having both (their) parents look after (them)”;
• the child’s “well-being would be seriously damaged”;
• circumstances, which would “seriously and detrimentally affect in a significant way the wellbeing” of the remaining family in the UK including the child in question;
• “very difficult”, which “represents undue harshness”.

25. In the context of the guidance reiterated and cited above from Ullah and AH (Sudan), I am satisfied that the considerations listed and taken into account by the Judge at [10]-[12] were entirely open to them on the evidence. Similarly, the terms used by the Judge to explain how the threshold of undue harshness was met, do in my view illustrate that the Judge applied the legal framework correctly to this matter.

26. By way of illustration only, the terms listed at para 24 do not equate with uncomfortable, inconvenient, undesirable or merely difficult and do instead conform with the more elevated threshold contained in the terms ‘unduly harsh’. The latter is something more than just severe or bleak and is an elevated standard still higher. This is encapsulated in the Judge’s reasoning at [10]-[12], particularly when considering that assessment within the decision as a whole and the evidence which the Judge accepted and which has not been challenged by the Respondent.

27. The Respondent’s submission at para 2 of her grounds appears to submit that a finding of unduly harsh can only be grounded in objective evidence from a third party stating that an appellant’s deportation would result in unduly harsh consequences. If so, this is unparticularised and rather misunderstands the Tribunal’s task to assess whether a legal test is met. It is not for a third party to say so and it cannot be that objective evidence is required before such a finding can be reached. A tribunal makes findings of fact based on all of the evidence before it, which the Judge has done here at first instance with sufficient and sustainable reasoning.

28. Lastly, the submissions made by the Respondent at para 9 are also misconceived. The Judge accepted the partner’s evidence. The Respondent has not sought to challenge the Judge’s reasons for accepting this. Thus, the Respondent’s submission that this was “merely a self-serving assertion intended to bolster the appellant’s human rights claim” amounts to a mere disagreement. Furthermore, I consider that the Respondent’s submission that the Judge has failed to consider that the child is of an age where emotional support may be provided through modern means of communication is also mere disagreement, which does not address the Judge’s findings. It is clear from [10] that the Judge accepted that the Appellant is a “present father”, with a “strong family life” between both Appellant and child and the child’s “emotional wellbeing” being “bound very closely” with both parents looking after them. I also agree with Mr Williams that the Respondent’s submission here appears to invoke a notional comparator, a principle which has been rejected by the higher courts in the leading authorities on the statutory exceptions and how to apply these.

29. The Respondent has submitted that the Judge failed to consider why other arrangements could not be made for the family and the Appellant’s children in the absence of the Appellant, including why the children’s mother could not care for the eldest child on her own. The Judge plainly considered alternatives and the absence of such alternatives in the longer term: the Judge accepted the mother’s evidence on this issue and the Respondent has not demonstrated that it was irrational for the Judge do so. The Respondent’s focus in her submissions has also been on the mother’s abilities rather than the likely impact on the child.

30. There is no suggestion from the decision and my analysis of the Judge’s findings and reasoning that the Judge has misdirected themselves and the grounds of appeal do not demonstrate the contrary. Quite the opposite, I consider that the Judge’s decision is careful and focused and they have set out and applied the correct law to the evidence.

31. It follows therefore that I am satisfied that the Judge has set out sufficient reasons for finding that the Appellant’s deportation would be unduly harsh on his eldest child, which was enough for the Appellant’s appeal to succeed pursuant to the statutory exception to deportation contained in s.117C(5) of the 2002 Act enacted by Parliament. Those findings were grounded in and justified by the evidence before the Judge and the Judge’s decision does not therefore disclose any errors of law.

Notice of Decision

32. Pursuant to the Upper Tribunal’s directions of 15th July 2025, MV is to pay the Secretary of State’s costs arising from the hearing on 15th July 2025, summarily assessed at £330.

33. The decision of the First-tier Tribunal did not involve the making of a material error of law and the decision shall stand. The Secretary of State’s appeal (and to whom I have referred as the Respondent in the body of the decision above) to the Upper Tribunal is dismissed.

Sarah Pinder

Judge of the Upper Tribunal
Immigration and Asylum Chamber

24.11.2025