Tribunal decisions

The decision

IN THE UPPER TRIBUNAL
IMMIGRATION AND ASYLUM
CHAMBER
Case No: UI-2025-000707
UI-2025-000896

First-tier Tribunal No: HU/01664/2024

THE IMMIGRATION ACTS

Decision & Reasons Issued:
On 2 September 2025

Before

UPPER TRIBUNAL JUDGE MANDALIA

Between

OSHANCE NEKO MORRISON
(ANONYMITY DIRECTION NOT MADE)
Appellant
and

Secretary of State for the Home Department
Respondent

Representation
For the Appellant: Mr A Akindele, Solicitor, Ineyab Solicitors
For the Respondent: Ms S Simbhi, Senior Home Office Presenting Officer

Heard at Birmingham Civil Justice Centre on 30 May 2025
Decision and Reasons
Introduction
1. The appellant is a national of Jamaica. On 26 February 2024 he was convicted at Kingston upon Hull Crown Court of being concerned in order to supply a controlled drug - Class A heroin, being concerned in order to supply a controlled drug – crack Cocaine, and facilitating the acquisition, acquiring or possessing criminal property. He was sentenced, inter alia, to 3 years imprisonment. He is subject to a deportation order made by the respondent on 27 August 2024 under section 32(5) of the UK Borders Act 2007.
2. The appellant made a human rights claim. There are two strands to that claim. First, the appellant refers to his relationship with his wife, Maxine Morrison, whom he married in Jamaica on 11 November 2017. There are no children of that relationship. Second, the appellant relies upon his relationship with his son, who I refers to as [K], who was born in September 2023. The appellant met K’s mother, who I shall refer to as [R] in 2020. R had given birth to another child of the appellant in January 2021 who was sadly still born.
3. Following consideration of representations made by the appellant, on 22 August 2024 the respondent made a decision to refuse the appellant’s human rights claim. The appellant’s appeal against that decision was dismissed by First-tier Tribunal (“FtT”) Judge Groom (“the judge”) for reasons set out in a decision promulgated on 10 January 2025 (“the judge’s decision”)
4. The appellant claims the judge’s decision is vitiated by material errors of law. Permission to appeal was granted by FtT Judge Hollings-Tennant on 29 January 2025 on one ground only. Judge Hollings-Tennant said:
“2. Ground [1] (in paragraph [B.1]) asserts that the Judge made a material misdirection in law in finding the Appellant’s child is not a ‘qualifying child’ under section 117D of the Nationality, Immigration and Asylum Act 2002. It is argued that, as a result, there was a failure to properly consider whether deportation is unduly harsh under exception [2] or give due weight to the best interests of the child. There is some merit in this assertion. Contrary to the Judge’s finding (at paragraph [26]), the child does in fact meet the definition of ‘qualifying child’ under section 117D(1)(a) because he is a British citizen.
3. There is a question as to whether this misdirection was material as it may well be that the Judge would nonetheless have reached the same conclusion. She does undertake an assessment and make a finding in respect of the child’s best interests (at paragraph [26]). However, it is at least arguable that her findings in respect of the child were predicated on a misdirection in law that the child did not meet the requisite definition. It is also unclear whether the Judge placed any weight on the child’s ongoing health concerns to which she refers in paragraph [18]).”
5. The appellant renewed the application for permission to appeal on the remaining grounds to the Upper Tribunal. Permission to appeal was again refused by Upper Tribunal Judge Hobbs on 19 March 2025. She said:
“I have carefully considered Ground 2. For the same reasons given by Judge Hollings-Tennant I find that it is not made out. The Judge gave clear and cogent reasons for why she did not find that the appellant and Mrs. Morrison were in a genuine and subsisting relationship. The grounds refer to documents which were not taken into account, but these are only one aspect of the evidence, and the Judge has given sufficient reasons for why she did not accept the evidence of the appellant and Mrs. Morrison as to their relationship.”
The Hearing of the Appeal Before Me
6. The appellant has been granted permission to appeal on one ground only. At the outset of the hearing, Ms Sibhi confirmed the respondent has filed a Rule 24 response dated 12 February 2025. It is conceded that the judge erroneously stated that the appellant’s son, K, is not a qualifying child for the purposes of Exception 2 set out in s117C(5) of the Nationality, Immigration and Asylum Act 2002 (“the 2002 Act”). However, the respondent maintains the error is immaterial to the outcome of the appeal.
7. Mr Akindele submits that when considering whether Exception 2 applies, insofar as the appellant’s relationship with his son is concerned, there were two matters for the judge to consider. First, whether the appellant has a genuine and subsisting parental relationship with his son, and second, whether the effect of the appellant’s deportation on his son would be unduly harsh. The judge failed to make any finding as to whether the appellant has a genuine and subsisting parental relationship with his son. The judge also failed to address whether the effect of the appellant’s deportation on his son would be unduly harsh, because the judge erroneously said that he is not a ‘qualifying child’.
8. Mr Akindele refers to the evidence before the FtT. In his witness statement dated 28 October 2024, the appellant states that his son was born premature at 27 weeks and was extremely unwell with a number of medical issues that he sets out. He would visit his son almost on a daily basis throughout the time his son was in hospital. Following his discharge from hospital, the appellant states he continued to support his son and R until he was convicted. R has taken K to visit the appellant in prison and he is always happy to see the appellant. Mr Akindele also refers to the evidence in the Prison Contact Logs (page 77 of the composite bundle) that record the appellant speaking about his son being on his mind.
9. Mr Akindele submits the judge simply failed to consider the effect of the appellant’s deportation on his son and did not attach due weigh to the medical evidence that was before the FtT. There was evidence in the form of R’s GP records relating to the birth of K. In his statement dated 28 October 2024, the appellant also said (paragraph 6) that his son needs the support of both parents having been born premature. In her statement dated 23 October 2024, R also referred (paragraph 3) to the premature birth of K and the fact that he was extremely unwell with a number of health issues. The judge did not, Mr Akindele submits, make any determination of whether there are any ongoing issues regarding the health of K. There was evidence before the FtT regarding the birth of the appellant (pages 146 to 150 of the composite bundle) which confirms that K was discharged from hospital on 1 December 2023 and that we would need follow-up in a ‘baby clinic in 6-8 weeks’ and in a ‘cardiac clinic in three months’. There was therefore at least some evidence of the need for K to have some on-going follow up.
10. Ms Simbhi submits there was simply insufficient evidence before the Tribunal capable of establishing that the effect of the appellant’s deportation on K would be unduly harsh. The judge properly noted, at [18], the evidence regarding the premature birth of K. The judge records the oral evidence of R that a number of K’s health problems are on-going. There was no evidence before the FtT that the appellant’s presence in the UK is fundamental to the care and treatment required by K. The evidence was that K is well cared for by R and the support that she receives from her family. Ms Simbhi submits that notwithstanding the error, the judge reached a decision that was inevitable.
Decision
11. The appellant appealed the respondent’s decision to refuse his human rights claim under s.82 of the Nationality, Immigration and Asylum Act 2002 on the ground that the decision is unlawful under s.6 of the Human Rights Act 1998.
12. Section 117A in Part 5A of the 2002 Act provides that, when a court or tribunal is required to determine whether a decision made under the Immigration Acts breaches a person's right to respect for private and family life under Article 8, and, as a result, would be unlawful under section 6 of the HRA 1998, the court, in considering the public interest question, must (in particular) have regard to the considerations listed in section 117B and, additionally, in cases concerning the deportation of foreign criminals, to the considerations listed in section 117C. Section 117C specifically deals with the weight to be attached to the public interest in deporting foreign criminals and provides a structure for conducting the necessary balancing exercise, dependent in part, on the length of sentence imposed.
13. It is uncontroversial that the appellant is a ‘foreign criminal’ as defined in s117D of the 2002 Act. In the case of a foreign criminal, as here, who has not been sentenced to a period of imprisonment of four years or more, section 117C(3) of the 2002 Act provides that the public interest requires the person’s deportation unless Exception 1 or Exception 2 applies. At paragraph [10] of the decision, the judge recorded that the issue in the appeal, as set out by Mr Akindele, was whether Exception 2 applies. That is, whether the appellant 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 the appellant’s deportation on the partner or child would be unduly harsh.
14. The judge records at paragraph [16] of the decision that the respondent accepts that it would be unduly harsh for Maxine Morrison, R or K, to relocate to Jamaica. They are all British citizens. The judge records at paragraph [17] of the decision that the respondent does not however accept that the appellant is in a genuine and subsisting relationship with his wife, Maxine Morrison or that he has a genuine and subsisting parental relationship with his son, K. The judge rejected the appellant’s claim that he is in a genuine and subsisting relationship with Mrs Morrison and concluded that the appellant’s deportation cannot therefore be unduly harsh on Mrs Morrison.
15. As far as Exception 2 is concerned vis-à-vis the appellant’s son, at paragraph [26], the judge said:
“A qualifying child for the purposes of Exception 2 is defined as “one who has lived in the UK for a continuous period of 7 years or more.” The appellant’s son is only one year of age. He lives with his biological mother with the expectation from [R] that this will be in a separate household even on the appellant’s eventual release. [K] is clearly well cared for given the current domestic arrangements of [R] and her mother and her sister. Whilst the best interests of any child are a primary consideration, they are not the only consideration. On the basis of the evidence presented it was apparent that the best interests of the appellant’s son is to remain with his biological mother, [R]. It was apparent that any arrangements with the appellant, such as they exist at the current time, are very limited. It is apparent that the appellant’s son does not rely upon him for his day-to-day welfare and financial support. As a result, the Tribunal conclude that the appellant’s son cannot be considered a qualifying child for the purpose of Exception 2. On the basis of that finding, it cannot be considered unduly harsh for the appellant’s son to remain in the UK even if the appellant were to be deported.”
16. It is common ground between the parties that the judge erroneously proceeds on the basis that K is not a qualifying child for the purposes of Exception 2. As set out by FtT Judge Hollings-Tennant when permission to appeal was granted, contrary to the judge’s finding, at [26], K does in fact meet the definition of ‘qualifying child’ under section 117D(1)(a) of the 2002 Act because he is a British citizen.
17. The issue before me is whether that error is material to the outcome of the appeal. In HA (Iraq) v SSHD [2022] UKSC 22, Lord Hamblen (with whom Lord Reed, Lord Leggatt, Lord Stephens and Lord Lloyd- Jones agreed) said:
“41. Having rejected the Secretary of State's case on the unduly harsh test it is necessary to consider what is the appropriate way to interpret and apply the test. I consider that the best approach is to follow the guidance which was stated to be "authoritative" in KO (Nigeria) , namely the MK self-direction:
"… 'unduly harsh' does not equate with uncomfortable, inconvenient, undesirable or merely difficult. Rather, it poses a considerably more elevated threshold. 'Harsh' in this context, denotes something severe, or bleak. It is the antithesis of pleasant or comfortable. Furthermore, the addition of the adverb 'unduly' raises an already elevated standard still higher."
18. Mr Akindele submits the judge failed to determine whether the appellant has a genuine and subsisting parental relationship with K. The judge records the evidence regarding K and the appellant’s relationship with him as follows:
“18. The appellant’ son was born prematurely at 27 weeks. He had a number of health problems following on from his premature birth and [R] confirmed in her oral evidence that a number of health problems are ongoing. The appellant’s son was approximately 5 months old when the appellant was sent to prison. Since the appellant has been in prison, [R] has taken the appellant’s son to visit him as can be seen by the visiting logs which have been provided in the appellant’s bundle of documentary evidence.
…
20. The appellant stated that during visits involving his son, they can last for approximately 2 hours. The appellant stated that his son is able to say, “Da da.” The appellant went on to state that “I want my son to come and live with me.”
21. In her evidence [R] stated that the appellant was present for the birth of his son, and he visited his son in hospital on a daily basis after his birth. Since the appellant has been sent to prison, [R] described telephone calls, whereby the appellant’s son recognises the appellant’s voice and during visits she said she could “see the bond that they had together.” Ms Lawrence also went on to say, “I know my child and as soon as he sees his dad, he’s excited, even though he is young, I can still see the signs, I can see that he’s happy.”
22. [R] stated in evidence that she currently resides with her mother. She says she has no intention of living with the appellant when he is released from prison. With regards financial support, and due to the appellant’s current situation, [R] stated that the appellant helps out when he can. [R] stated that she currently works part time as a mental health support worker. Her mother and her sister help her with regards to childcare. ”
19. Reading the decision as a whole, the judge accepts the appellant has played some role in the life of his son, albeit that has been limited because of the premature birth of K, a lengthy period in hospital following the birth and the fact that the day to day care of K is provided by R. The role the appellant has been able to pay in K’s life has also been hampered by the fact that the appellant has been serving a sentence of imprisonment since K was only a few months old. It can reasonably be inferred that the judge was prepared to accept the appellant has a genuine and subsisting parental relationship with K and that the real issue, as Mr Akindele accepts, is whether the effect of the appellant’s deportation on K would be unduly harsh. That was the focus of the judge.
20. The judge considered the conflicting evidence of Mrs Morrison and R regarding the extent, if any, to which Mrs Morrison assists R with the care of the appellant’s son. At paragraph [25] the judge said that it is apparent from the evidence that there are no formal arrangements in place or confirmed commitments on the part of the appellant towards his son. The judge said that R is the primary carer of K and that the prison visits demonstrate no more than the appellant’s short term presence in K’s life. Although R claimed her son is able to recognise the appellant’s voice on the telephone, other important and crucial details surrounding social and emotional support was lacking.
21. I have considered the evidence that was before the FtT that is referred to by Mr Akindele and it is clear in my judgment that the judge had in mind the evidence regarding the health of K. The judge referred to the oral evidence of R that K has a number of ongoing health problems, albeit the evidence concerning any on-going treatment was sparse. The evidence before the FtT regarding the birth of K and his discharge from hospital with a follow-up in a ‘baby clinic in 6-8 weeks’ and in a ‘cardiac clinic in three months’, on its own adds nothing. Over 12 months had passed since the discharge of K and there was a paucity of evidence regarding the follow-up appointments referred to, any diagnosis made, and treatment required in the short, medium or longer term. If there had been anything highlighted in either of those ‘follow-up’ appointments that was significant, there would have been better evidence of that before the FtT.
22. Having in mind the test that applies and the need to establish on the evidence something more than “uncomfortable, inconvenient, undesirable or merely difficult” and the elevated threshold, I am satisfied that the error made by the judge was immaterial to the outcome of the appeal. Reading the decision as a whole, I am entirely satisfied that even if the judge had accepted that K is a ‘qualifying child’, on the findings made, having had regard to the living and care arrangements for K, and the evidence before the Tribunal, applying the correct test, the judge would inevitably have concluded that the appellant cannot establish that the effect of his deportation on K would be unduly harsh.
23. It follows that in my judgment there is no material error of law in the decision of the FtT capable of affecting the outcome of the appeal and I dismiss the appeal to the Upper Tribunal.
Notice of Decision
24. The appeal to the Upper Tribunal is dismissed.
25. The decision of First-tier Tribunal Judge Morrison promulgated on 10 January 2025 stands.

V. Mandalia
Upper Tribunal Judge Mandalia

Judge of the Upper Tribunal
Immigration and Asylum Chamber

15 August 2025