Tribunal decisions

The decision

IN THE UPPER TRIBUNAL
IMMIGRATION AND ASYLUM CHAMBER
Case No: UI-2025-001416

First-tier Tribunal No: HU/54526/2023

THE IMMIGRATION ACTS

Decision & Reasons Issued:

16th June 2025

Before

UPPER TRIBUNAL JUDGE HOFFMAN
DEPUTY UPPER TRIBUNAL JUDGE DEAKIN

Between

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Appellant
and

GI
(ANONYMITY ORDER MADE)
Respondent

Representation:
For the Appellant: Mr E Tufan, Senior Home Office Presenting Officer
For the Respondent: Mr Z Raza, counsel, instructed by Evolent Law

Heard at Field House on 23 May 2025

Order Regarding Anonymity

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

DECISION AND REASONS
1. In her determination of 3 February 2025, FTJ Hena allowed GI’s appeal on the basis that he fell within the terms of section 117C(5) of the Nationality, Immigration and Asylum Act 2002 (“Exception 2”). The Secretary of State appeals against the Judge’s determination.
Material Background
2. GI is an Albanian national. He arrived in the United Kingdom in May 2001 (claiming to be an Kosovan national). He was granted various forms of leave to remain until 9 October 2012, when he was granted British citizenship. GI was convicted of driving a vehicle with excess alcohol on 21 May 2013. On 14 February 2017 he was convicted of supplying Class A and B drugs and sentenced to 2 years 8 months imprisonment. On 8 November 2019 the Secretary of State took the decision to deprive GI of his British nationality on the basis that it had been procured by fraud. GI’s deprivation appeal was dismissed and a Deprivation Order was served on him in 2021.
3. The Secretary of State issued a Notice of Decision to Deport on 12 August 2022. GI served human rights representations on 7 November 2022. The Secretary of State served her refusal of GI’s human rights claim on 27 March 2023 with a Deportation Order (signed 15 February 2023).
4. GI is in a relationship with Ms AA. Ms AA is an Albanian national. She does not have settled status in the United Kingdom. GI and AA have two children, Master G (born in 2021) and Miss VI (born in 2023). Master G is a British citizen.
5. GI’s appeal was heard on 10 December 2024. GI relied on section 117C(4) (“Exception 1”) and section 117C(5) the of the Nationality, Immigration and Asylum Act 2002. The Judge found that GI was not sufficiently socially integrated in the United Kingdom to satisfy section 117C(4)(b) and, as such, that GI did not benefit from Exception 1. As to Exception 2, the Judge accepted that Master G was a qualifying child and found that it would be unduly harsh on him were GI to be deported. Exception 2 was found to apply and the Judge allowed GI’s appeal on that basis.
6. The Secretary of State sought permission to appeal against the Judge’s determination on two grounds, namely that:
a. The Judge failed to give adequate reasons for her findings that GI’s deportation would be unduly harsh on Master G (in particular that the Judge failed to give anxious scrutiny to the Independent Social Worker’s Report, failed to consider the methodology of that Report, failed to apply the established high thresholds for the “unduly harsh” test, and failed to properly consider whether GI’s partner could care for their children were GI to be deported (“Ground 1”).
b. The Judge erred when considering Exception 1 in finding that GI had been lawfully resident in the United Kingdom for more than half his life when his leave had been procured by fraud (“Ground 2”).
7. By decision of 26 March 2025 FTJ Tozzi granted GI permission to appeal.
The Task of the Upper Tribunal on Appeal
8. It is the role of the Upper Tribunal, when considering a decision of the First-tier Tribunal, to determine whether or not the making of the decision at first instance “involved the making of an error on a point if law” (section 12(1) of the Tribunal, Courts and Enforcement Act 2007).
9. The question for us is therefore not whether we agree with the Judge at first instance, but whether or not the Judge’s determination fell within the range of legally permissible options. And, in considering whether the Judge did err in law, we remind ourselves that the First-tier Tribunal is an expert Tribunal to which appropriate respect is owed (see Lady Hale’s comments in AH (Sudan) v Secretary of State for the Home Department [2007] UKHL 49; [2008] 1 A.C. 678, at [30]).
10. As to adequacy of reasons, it is well established that the reasons given by a First-tier Judge need not be extensive. They must “…enable the reader to understand why the matter was decided as it was and what conclusions were reached on the “principal controversial issues”, disclosing how any issue of law or fact was resolved…” (per Lord Brown of Eaton under Heywood in South Bucks County Council v Porter [2004] UKHL 33; [2004] 1 WLR 1953).
Discussion
11. While FJT Tozzi gave the Secretary of State permission to appeal on both grounds, Mr Tufan properly did not press Ground 2 at the hearing. The Judge found that GI could not benefit from Exception 1 as he was not socially and culturally integrated in the United Kingdom. Whether or not the Judge erred in her approach to whether GI had been lawfully resident in the United Kingdom for most of his life is therefore not material to the outcome of the decision. We do not consider Ground 2 further.
12. As to Ground 1 (namely whether the Judge erred in her consideration of the “unduly harsh” criterion) the Secretary of State made a number of submissions. We address them below.
13. First the Secretary of State argued that the factors take into account by the Judge when assessing the impact of GI’s deportation on Master G could not rationally be considered “unduly harsh” and/or the Judge failed to give adequate reasons for her conclusions.
14. The Secretary of State notes in her grounds that the Judge took into account the fact that GI “is said to take him to school and prepare his food while the child’s mother is at work” and “the ISW considers that the children’s emotional well-being will be impacted” (Grounds para. 3). But these were not, however, the only factors considered by the Judge:
a. The Judge placed reliance on an Independent Social Worker’s Report. The Secretary of State did not dispute the credentials of the Social Worker (para. 45 of the Determination) and she “made no comments as to the findings in the social workers report as to the impact on the children should the appellant be deported” (para. 52 of the Determination). We note the Social Worker was of the opinion that “Due to the close bond [GI] has with his children, it is inevitable that they will feel his loss greatly. Should [GI] be deported his children are likely to be impacted emotionally, which will subsequently impact them in other areas of their life, including education, health and socially, they require stability and consistency in their home lives to reach their full potential” (Section 8: Conclusions and Recommendations).
b. The Judge recorded that AA was having counselling sessions and suffered post-natal depression. She was also found to suffer stress as a result of these proceedings (para. 47 of the Determination). Mr Tufan suggested that the evidence of post-natal depression was limited. We agree. There is, however, reference to post-natal depression in AA’s medical notes (albeit qualified with a question mark) and in our view the Judge was entitled to take this into account when considering the impact of GI’s deportation on the family and, by inference, Master G.
c. The Judge found that the children spent more time with GI who was “at home meeting their needs” (para. 53 of the Determination).
d. The Judge proceeded on the basis that the GI’s removal would be “akin to bereavement”. She noted that the children would lose the love and support of their main care-giver, the difficulty AA would face to replace this, the impact on Master G of “trying to process a bereavement type loss”, the extra support this would require and the difficulty in replacing GI (paras. 54-55 of the Determination).
e. The Judge expressly considered whether this effect would be sufficiently mitigated given the “strong connections to Albania” and the possibility of visits but rejected this on the basis of the Independent Social Worker’s Report (para. 56 of the Determination).
f. The Judge took the age of Master G into account when considering the impact of separation (para. 57 of the Determination).
15. In our judgment those facts are capable of supporting a finding that GI’s deportation would be unduly harsh on Master G and, further, that in identifying the above factors, the Judge gave adequate reasons for her conclusion that GI’s deportation would indeed be unduly harsh on Master G. The Secretary of State’s submission amounts to a disagreement with the Judge’s findings and does not identify any error of law in the Judge’s approach.
16. Second the Secretary of State argues that the Judge failed to give anxious scrutiny to the Independent Social Worker’s Report and, in particular, that she failed to consider the Secretary of State’s representations concerning the methodology of the Report (namely that the Social Worker reached her conclusions after only one visit). In oral submissions Mr Tufan also submitted that the Independent Social Worker’s Report contained errors such as the assumption that GI had lived through the civil war in Kosovo when, in fact, he was Albanian.
17. We do not consider there to be any merit in this ground of appeal. The Judge properly engaged with the Independent Social Worker’s Report and there is nothing in the Judge’s decision to support the submission that the she failed to apply anxious scrutiny when doing so. As to the Secretary of State’s specific complaints:
a. The Judge expressly recorded the Secretary of State’s observation in the Reconsideration that the Social Worker had only met with GI’s family on one occasion and her submissions to similar effect at the hearing (paras. 9 and 46 of the Determination). The Judge, however, noted the contrary submission that any report will be based on “snapshot of the family’s life when she was instructed to complete her report” and that, while the Report was based on “limited meetings”, the Social Worker’s findings were consistent with the evidence elicited from GI and AA under cross-examination and that “nothing had been embellished” (para. 46 of the Determination).
b. It is not clear what “civil war” is referred to in the Report at section 6), but (i) the Independent Social Worker was plainly aware that GI was an Albanian national and (ii) we do not consider this element of the Report to be material to the Independent Social Worker’s assessment of the impact of GI’s deportation on Master G.
18. We can find no material error of law in the Judge’s approach to the Independent Social Worker’s Report. In any event, in circumstances where the Secretary of State “made no comments as to the findings in the social workers report as to the impact on the children should the appellant be deported” (para. 52 of the Determination) we consider the Judge was entitled to proceed on the basis that these elements of the Report were reliable.
19. Third the Secretary of State argued that the Judge failed to apply the “relevant established thresholds to their findings in respect (sic) to what is to be considered as ‘unduly harsh’” (Grounds para. 4). The Secretary of State cited a number of authorities in support of this submission including:
a. Secretary of State for the Home Department v PG (Jamaica) [2019] EWCA Civ 1213 at [13];
b. Remarks in KO (Nigeria) and others v Secretary of State for the Home Department [2018] UKSC 53 which make clear that the ‘unduly harsh’ test imposes a high threshold and requires an impact that goes beyond what would necessarily be experienced by any child whose parent is deported;
c. MK (Sierra Leone) v Secretary of State for the Home Department [2015] UKUT 223 (IAC), in which the Upper Tribunal held:
“By way of self-direction, we are mindful that '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.”
d. HA (Iraq) v Home Secretary [2020] EWCA Civ 1176. We note in particular Underhill LJ’s observations at [56]:

…How a child will be affected by a parent’s deportation will depend on an almost infinitely variable range of circumstances and it is not possible to identify a baseline of “ordinariness”. Simply by way of example, the degree of harshness of the impact may be affected by the child’s age; by whether the parent lives with them (NB that a divorced or separated father may still have a genuine and subsisting relationship with a child who lives with the mother); by the degree of the child’s emotional dependence on the parent; by the financial consequences of his deportation; by the availability of emotional and financial support from a remaining parent and other family members; by the practicability of maintaining Judgment a relationship with the deported parent; and of course by all the individual characteristics of the child.
And his conclusion at [57]:

…Tribunals considering the parent case under Exception 2 should not err in law if in each case they carefully evaluate the likely effect of the parent’s deportation on the particular child and then decide whether that effect is not merely harsh but unduly harsh applying KO (Nigeria) in accordance with the guidance at paras. 50-53 above.
20. Finally we draw attention to the Supreme Court’s decision in HA (Iraq) [2022] UKSC 22; [2022] 1 W.L.R. 3784 in which Lord Hamblen expressly endorsed the Upper Tribunal’s characterisation of the test in MK (Sierra Leone) cited above.
21. We accept that the Judge did not expressly direct herself in accordance with MK (Sierra Leone). However, the Judge did refer to the leading authority, HA (Iraq) (we do not consider the typographical error “HJ (Iraq)” to be material) – albeit without specifying whether she was referring to the judgment of the Court of Appeal or Supreme Court – and went on to consider whether the impact of GI’s deportation on Master G would be unduly harsh (Determination para. 45). As set out above, the First-tier Tribunal is a specialist tribunal, and we proceed on the basis that the Judge was aware of the meaning of “unduly harsh” in this context and properly applied the test in accordance with the authorities. We note too that the factors relied on by the Judge in coming to her determination closely align with those identified by Underhill LJ in HA (Iraq) (CoA) at [56] (as cited above).
22. We accordingly reject the Secretary of State’s argument on this point. As set out above, we find that the facts as found by the Judge were capable of satisfying this test and that the Judge’s reasons for finding that they did were adequate.
23. Fourth the Secretary of State argued that the Judge made an “assumption that the appellant’s wife would not be able to care for the children without the appellant’s support”; the Judge failed to consider that, as GI had only been the primary carer since January 2024, care arrangements would have been in place before that time; and that the Judge made an unfounded assumption that GI’s wife and children would not benefit from support from social services (Grounds para. 11).
24. We do not consider that any of these complaints identify an error of law.
a. Contrary to the Secretary of State’s submission, the Judge did not “assume” that AA would not be able to care for the children without the appellant’s support. Having considered the evidence the Judge determined that AA would face additional challenges in caring for her children were GI to be deported. In our judgment these findings were properly open to her.
b. The Judge expressly noted that GI had been the primary care giver since January 2024 (para. 45 of the Determination). She was entitled conclude that GI’s removal would be unduly harsh on that basis.
c. The Judge observed that, so far as she was aware, social services was unlikely to provide school drop-off/pickup on the basis that AA was a single parent. This observation was of limited relevance to the decision as a whole and, insofar as the Judge erred in making it, that error was not material.
Conclusion
25. The Judge’s finding that GI’s deportation would be “unduly harsh” on Master G is not necessarily the decision that we would have reached. However, the Judge cited the key authority, assessed the impact of GI’s deportation on Master G (identifying particular factors over and above impacts which would necessarily be experienced by any child whose parent is deported), and concluded that the impact on Master G would be unduly harsh. We consider that that finding was properly open to the Judge on the evidence before her and properly reasoned in her determination. We accordingly dismiss the Secretary of State’s appeal.

Notice of Decision
Appeal dismissed.

ANDREW DEAKIN

Deputy Judge of the Upper Tribunal Hoffman
Immigration and Asylum Chamber

6 June 2025