Tribunal decisions

The decision

IN THE UPPER TRIBUNAL
IMMIGRATION AND ASYLUM CHAMBER
Case Nos: UI-2025-000533
UI-2025-000534
First-tier Tribunal Nos: HU/01890/2023
EA/03508/2023

THE IMMIGRATION ACTS

Decision & Reasons Issued:

1st May 2025

Before

UPPER TRIBUNAL JUDGE O’CALLAGHAN
DEPUTY UPPER TRIBUNAL JUDGE KUDHAIL

Between

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Appellant
and

DARIUS HIRTIE
(NO ANONYMITY ORDER MADE)
Respondent

Representation:
For the Appellant: Ms S Lecointe, Senior Presenting Officer
For the Respondent: Mr B Hawkins, Counsel, instructed by TMC Solicitors

Heard at Field House on 3 April 2025

DECISION AND REASONS

Introduction
1. This is an appeal against a decision of the First-tier Tribunal. It has brought to the fore the requirement that a tribunal must be able to rely on information provided to it by the representatives of parties. An author must be diligent to ensure that grounds of appeal are both clear and precise as to the scope and nature of the purported material error of law raised.
2. The parties are referenced as they were before the First-tier Tribunal: Mr Hirtie as “the appellant” and the Secretary of State as “the respondent”.
3. First-tier Tribunal Judge Stedman (“the Judge”) found very compelling circumstances to arise in this matter and allowed the appellant’s appeal on human rights (article 8 ECHR) grounds. The Judge’s decision was sent to the parties on 13 December 2024.
Relevant Facts
4. The relevant facts can be addressed in concise terms. The appellant is a national of Romania and presently aged 26. Having previously resided lawfully in this country the appellant was granted leave to remain under the EU Settlement Scheme on 13 May 2020. His leave was subsequently varied, and he was granted leave to remain until a date in 2026. In 2022 he was convicted and sentenced to a custodial term of imprisonment. The respondent issued a deportation order.
5. The focus of the appellant’s appeal in the First-tier Tribunal was upon the family life he has with his partner and their two young children who enjoy lawful status in this country. Neither the partner nor the children are “qualified” for the purpose of section 117C(5) of the Nationality, Immigration and Asylum Act 2002. Nor are they “qualified” in respect of paragraphs 13.2.5 and 13.2.6 of the Immigration Rules which adopt the statutory scheme to article 8 and deportation established by section 117C(5). Consequently, the focus of the Judge and the parties was directed to section 117C(6) of the 2002 Act: “the public interest requires deportation unless there are very compelling circumstances ...”
6. The index offence post-dates the end of the transition period and the United Kingdom leaving the European Union at 11pm on 31 December 2020. The appellant’s appeal therefore does not fall to be considered under the Immigration (European Economic Area) Regulations 2016.
First-tier Tribunal Decision
7. The Judge considered the personal circumstances of the appellant’s partner, which he identified as “profoundly difficult” and arising from a “traumatic past”. The partner’s evidence is that she has mental health concerns. The Judge concluded that whilst the practical challenges of separation of the partner from the appellant would undoubtedly be difficult, they were not insurmountable, at [35] of his decision.
8. The core of the appellant’s case was identified by the Judge as being founded upon the emotional impact deportation would have upon the partner, and in turn the adverse impact that would cascade upon their children. The Judge found that the appellant returning to Romania would be “profoundly detrimental” upon the partner, resulting in personal “severe” impact. He concluded “by a narrow margin” that compelling circumstances arose, at [36]-[37]. The impact of separation upon the partner was assessed to be “profound, going beyond undue hardship”, at [40].
Grounds of Appeal
9. First-tier Tribunal Judge Stevenson granted the respondent permission to appeal on two grounds. He reasoned as to ground 1 that there was no consideration by the First-tier Tribunal of the “go” scenario and whether it would be unduly harsh for the family unit to live in Romania as relevant to the consideration required by section 117C(6).
10. Ground 2 was identified as being weaker, with the Judge’s findings being based on his acceptance of the witnesses as being credible and reliable. Judge Stevenson observed that the evidential basis for the conclusions as to the impact of separation on the family in the absence of a corroborating professional report may be limited.
Statute
11. Section 117C of the 2002 Act as relevant to this appeal:
“Article 8: additional considerations in cases involving foreign criminals
(1) The deportation of foreign criminals is in the public interest.
(2) The more serious the offence committed by a foreign criminal, the greater is the public interest in deportation of the criminal.
(3) In the case of a foreign criminal (“C”) who has not been sentenced to a period of imprisonment of four years or more, the public interest requires C's deportation unless Exception 1 or Exception 2 applies.
(4) ...
(5) 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.
(6) In the case of a foreign criminal who has been sentenced to a period of imprisonment of at least four years, the public interest requires deportation unless there are very compelling circumstances, over and above those described in Exceptions 1 and 2.”
Discussion
12. Section 117C(5) requires the appellant’s partner and children to be “qualifying” persons as defined by section 117D(1)(a) and (b). They are not. Consequently, consideration of the appellant’s article 8 rights was properly to be undertaken by the Judge through the prism of the “very compelling circumstances” test established by section 117C(6). This test is over and above the exception to the public interest in deportation established by 117C(5): HA (Iraq) v Secretary of State for the Home Department [2022] UKSC 22, [2022] 1 WLR 3784, at [51].
13. At its core, section 117C(6) and the requirement of very compelling circumstances necessitates a judge undertaking a full assessment as to the proportionality of the appellant’s deportation.
Ground 1
14. Noting Judge Stevenson’s reasoning when granting permission to appeal in respect of this ground, founded upon there being no consideration of the “go” scenario, we commence by observing the judgment of the Court of Appeal in Secretary of State for the Home Department v PG (Jamaica) [2019] EWCA Civ 1213, at [34]. The Court of Appeal confirmed that a tribunal considering section 117C(5) must focus on whether the effects of deportation of a parent on a child or partner would go beyond the degree of harshness which would necessarily be involved for any child or partner of a foreign criminal faced with deportation. A tribunal must consider both whether it would be unduly harsh for the child and/or partner to live in the country to which the foreign criminal is to be deported (the “go” scenario) and whether it would be unduly harsh for the child and/or partner to remain in the United Kingdom without him (the “stay” scenario).
15. We properly acknowledge that the Court of Appeal was considering the “unduly harsh” test established by section 117C(5) and not the “very compelling circumstances” test established by section 117C(6). However, factors identified by section 117C(5) of an especially compelling kind in support of an article 8 claim, going well beyond what would be necessary to make out a bare case under the identified exception to the public interest can, in principle, constitute very compelling circumstances: NA (Pakistan) v Secretary of State for the Home Department [2016] EWCA Civ 662, [2017] 1 WLR 207, at [30].
16. We turn to the respondent’s ground as advanced in writing at paragraph 1(b) and (c). We cite the first sub-paragraph in full below:
“The appellant’s partner and children are acknowledged to be neither settled or qualifying to come within the immigration rules [10 & 12]. The position held in the decision to deport is that it would not be unduly harsh for his partner and children to remain in the United Kingdom and that it is open for them to join him in Romania. This would have formed the Presenting Officer’s submissions with their reliance on the decision letter, as acknowledged in the case of Shyti v Secretary of State for the Home Department [2023] EWCA Civ 770. The FTTJ has not addressed the latter point other than to incorrectly state that the ‘sole’ issue of the appeal concerns the family’s existence in the UK and not the support available in Romania [28]. Clearly this would also be relevant when considering the very compelling circumstances test overall and therefore their findings have failed to resolve a material conflict of fact or opinion when undertaking a proportionality assessment under Article 8.”[Emphasis made in the original document]
17. This sub-paragraph of the grounds does not identify reliance upon the “go” scenario. There is no assertion that it would not be unduly harsh for the partner and children to relocate to Romania. It is simply said that the Judge failed to place into his assessment that it would be “open” for them to relocate with the appellant.
18. So where did Judge Stevenson identify the “go” scenario as being advanced within the ground? We turn to paragraph 1(c);
“With regards to the potential relocation of the family unit to Romania, which would be open to the appellant’s partner to pursue if deemed necessary, it is significant to note that the appellant’s relationship with his partner began in Romania, as it is stated in their witness statements to have commenced in 2015, prior to their entry to the UK. The appellant also has family who remain in Romania [28] and his family members clearly support their relationship, as demonstrated by the UK-based brother’s assistance whilst he was served the custodial part of his sentence [33]. It has not been shown that such support will be absent in Romania and there is nothing preventing the family unit from relocating to their country of nationality and citizenship, which arguably would be in their best interest overall due to the appellant’s inability to remain in the UK owing to his criminality that has justified his deportation and so it cannot be said the decision is either unduly harsh or exceeds this.” [Emphasis added]
19. We note that paragraph 1(c) again commences with the observation that it is “open” for the partner and children to relocate to Romania with the appellant. However, with the focus of this paragraph being directed to the partner and children leaving the United Kingdom, the final sentence introduces “unduly harsh” into the challenge. An implication of this sentence is that the “go” and “stay” scenarios were relied upon by the respondent in this matter. Whether this was the intention of the author we address at [25] below but we are satisfied that this was the understanding of Judge Stevenson.
20. A question for this panel is: did the respondent rely upon the “go” scenario before the First-tier Tribunal? We turn to her decision letter of 28 September 2023. As Ms Lecointe properly accepted before us, there is no express reliance upon the “go” scenario in this decision. There is express reliance upon the “stay” scenario, it being considered that it would not be unduly harsh for the partner and the children if they remained in the United Kingdom in the absence of the appellant following his return to Romania, at §§ 28, 29, 30, and 37 of the decision. However, having accepted that the appellant has a genuine and subsisting relationship with his two minor children, at § 26, the respondent expressly stated that she did not expect the partner or children to leave this country, at §§ 28, 30 and 36. There is no express assertion that it would not be unduly harsh for the partner and children to relocate to Romania. We are satisfied that by means of her decision the respondent did not place reliance upon the “go” scenario identified by the Court of Appeal in PG (Jamaica). The focus of the respondent’s “unduly harsh” assessment was entirely focused on the “stay” scenario.
21. Prior to the hearing, through its administrative staff, the Upper Tribunal sought a copy of the respondent’s review which she was required to file prior to the First-tier Tribunal hearing following receipt of the appellant’s skeleton argument: rule 24A(3) of the Tribunal Procedure (First-tier Tribunal) (Immigration and Asylum Chamber) Rules 2014. The panel was informed by Ms Lecointe that it had not proven possible to establish whether this document was filed with the First-tier Tribunal.
22. In the absence of a review having been filed, or corroborating evidence in the form of a witness statement and/or contemporaneous note of the hearing prepared by Mr Mavrantonis, there is no evidence before the panel of the respondent contending before the First-tier Tribunal that it would not be unduly harsh to expect the partner and her children to accompany the appellant to Romania. The panel does have Judge Stedman’s confirmation at [28] of his decision that the sole issue before him was the impact of deportation upon the partner and children when remaining in this country consequent to the appellant’s return to Romania. We are satisfied that the Judge appropriately records the parties’ respective positions before him. We conclude that the “go” scenario was never advanced by the respondent before the Judge.
23. Ms Lecointe withdrew ground 1. She was correct to do so. Having considered the documents before us, the panel is satisfied that permission to appeal was granted solely because Judge Stevenson understood the complaint to be that the “go” scenario was expressly relied upon by the respondent in this appeal. This is not correct. We conclude that the ground as identified in paragraph 1(b) and (c) enjoys no merit and permission would not have been granted upon it in the absence of Judge Stevenson’s erroneous understanding of the complaint advanced.
24. Both paragraph 1(b) and (c) of the grounds reference the respondent’s position as to it being “open” to the partner and children to accompany the appellant to Romania “if deemed necessary”. At its highest, having accepted that the partner and children would not be compelled to leave the United Kingdom, the respondent observed in her decision letter that the partner would be required to decide as to whether she would relocate to Romania with her children. That a partner may be open to relocating “if deemed necessary” is not by itself determinative of the section 117C(6) assessment. As confirmed by the Supreme Court in HA (Iraq), at [51], various relevant factors may be placed in the assessment including, in this matter, the seriousness of the difficulties that the partner is likely to encounter when relocating to Romania. It is not identified in the September 2023 decision, nor in the grounds of appeal, that it would not be unduly harsh for the partner and children to return to Romania. The Judge could properly place reliance upon the appellant satisfying section 117C(5) when proceeding to consider the existence of very compelling circumstances. The contention that it is open to the partner to relocate to Romania fails to engage with the express findings of the Judge who reasonably accepted that having lost her parents at a very young age and subsequently been placed in an orphanage the partner has “very limited” family support in either the United Kingdom or Romania, at [32], and that the support she does have, beyond the appellant, is provided by his family members in this country. The partner detailed in her evidence that the children are settled in this country. She wishes for them to reside here permanently and to benefit from educational opportunities presently available to them. There is no evidence before us that the partner has ever contemplated relocating to Romania with her children “if necessary”, or at all. The Judge implicitly accepted the partner’s position that both she and her children would remain in the United Kingdom if the appellant were required to leave. His reasoning as to very compelling circumstances was properly founded upon the deterioration of the partner’s mental health consequent to separation, and the significant impact of such deterioration upon the children. Ultimately, we conclude the ground advanced fails to engage with the Judge’s findings. It amounts to no more than an attempt to re-argue the respondent’s case and does not constitute the identification of a material error of law.
25. At the hearing we canvassed with the representatives our concern that Judge Stevenson was misled by the grounds as to believing that the “go” scenario was advanced before the Judge. Having considered the grounds with care, we are content to proceed on the basis that the paragraph 1(c) was imprecisely drafted with an attendant lack of required clarity resulting in Judge Stevenson’s unfortunate misunderstanding. A tribunal is properly to be able to rely on information provided to it by the representatives of parties. We repeat that the author of grounds of appeal must be diligent to ensure that they are clear and precise as to the scope and nature of the purported material error of law raised.
Ground 2
26. Ms Lecointe identified from the written document that this ground encompassed the following complaints:
i. When concluding that the circumstances flowing from separation went beyond undue hardship, the First-tier Tribunal’s decision was based “on pure conjecture surmised from the FTTJ’s own opinions that are not based on any objective evidence.” This is said to be demonstrated by the Judge’s findings that the partner will “increasingly rely on public resources”, and that his removal will not only “significantly affect” his partner’s mental health but would also have a “direct and negative effect on the children”, at [35].
ii. The same criticism applied to the finding that the appellant’s brother will not be able to provide support to the partner and children in the future, at [29]
iii. There are no expert reports, such as from a medical practitioner or social worker role to substantiate such speculative findings, with the only evidence emanating from the appellant, his partner, and brother who are clearly not impartial witnesses.
27. We address these complaints in short terms. In respect of iii above, Ms Lecointe submitted that the identified documents would usually be expected in a deportation appeal but properly accepted that they are not a requirement and that a favourable assessment as to credibility and reliability can properly be made in respect of a witness’ evidence in the absence of corroborating documents. There is no foundation in the ground as drafted that an appellant’s witnesses require corroborative professional reports to establish credibility. This element of ground 2 should not have been advanced.
28. There is no merit to the contention that the Judge’s decision was based on pure conjecture. We are satisfied that the Judge gave cogent reasons for his conclusions on the evidence before him, applying the correct burden and standard of proof. The Judge lawfully assessed the impact of separation upon the partner’s mental health, properly taking into account her personal circumstances, and we identify no material error of law in the approach adopted. We observe that paragraph 1(d) focuses on material support that can be received by the partner in the United Kingdom following the appellant’s return to Romania. As confirmed above, the Judge explicitly concluded that the practical challenges to separation would not be insurmountable. Very compelling circumstances were established by the “profoundly detrimental” impact separation would have upon her mental health. The Judge expressly noted the significant adverse impact of watching her children enduring the absence of a parent would have upon a mother whose mental health concerns are rooted in losing her parents at a young age and being raised in an orphanage. The second ground fails to engage with these findings. We conclude that it amounts to no more than an effort to reargue the respondent’s case.
29. We conclude by expressing our gratitude to Ms Lecointe who sought to aid the panel with her customary skill and efficiency in circumstances where she was not aided by the approach adopted by the author of the grounds of appeal.
Notice of Decision
30. The decision of the First-tier Tribunal sent to the parties on 17 December 2024 is not subject to material error of law.
31. The Secretary of State’s appeal is dismissed.

D O’Callaghan
Judge of the Upper Tribunal
Immigration and Asylum Chamber

28 April 2025