Tribunal decisions

The decision

IN THE UPPER TRIBUNAL
IMMIGRATION AND ASYLUM CHAMBER
Case No: UI-2025-001449

First-tier Tribunal No: HU/59200/2023

THE IMMIGRATION ACTS

Decision & Reasons Issued:
On 10th of June 2025

Before
UPPER TRIBUNAL JUDGE NORTON-TAYLOR
DEPUTY UPPER TRIBUNAL JUDGE WEBB

Between
MANPREET SINGH
(NO ANONYMITY ORDER MADE)
Appellant
and

SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the appellant: Mr Y Alhani, Counsel, instructed by Darshan Azad Solicitors
For the respondent: Ms S Lecointe, Senior Presenting Officer

Heard at Field House on 30 May 2025

DECISION AND REASONS

Introduction
1. The appellant appeals with permission on limited grounds against the decision of First-tier Tribunal Judge Loke (as she then was - “the judge”), promulgated on 7 January 2025 following a hearing on 20 December 2024.

2. The appellant is an Indian national born in 1983. He came to United Kingdom in February 2006 and has remained here ever since. After periods of limited leave to remain and (it appears) of overstaying, in November 2019 he was granted indefinite leave to remain outside of the Immigration Rules. He then made an application for naturalisation as a British citizen. That application was refused on good character grounds following the appellant’s conviction on 30 September 2022 for transferring criminal property. He was sentenced to 37 months’ imprisonment (this made him a medium offender within the meaning of section 117C of the Nationality, Immigration and Asylum Act 2002, as amended - “the 2002 Act”). This led to deportation action by the respondent. A decision to deport was made on 31 December 2022, to which the appellant responded with a human rights claim. That claim was refused on 12 July 2023.

3. In 2021, the appellant married an Indian national, Ms K. She has limited leave to remain until May 2027. The couple have a child, T, born in March 2022. She is a British citizen because the appellant had indefinite leave to remain at that time.

The judge’s decision in summary
4. There was no protection claim before the judge. The two core issues identified by the parties and recorded as requiring determination were: first, could the appellant satisfy Exception 2 under section 117C(5) of the 2002 Act; second, were there very compelling circumstances under section 117C(6) of the 2002 Act.

5. The judge correctly noted that Ms K was not a qualifying partner for the purposes of Exception 2 because she only had limited leave to remain: [15]. The judge considered T’s best interests at the outset of the unduly harsh assessment and referred to evidence relating to T’s development and the appellant’s involvement in her life: [16]. Legal self-directions were made, with reference to well-known authorities on deportation and undue harshness: [17].

6. At [18]-[19], the judge addressed the “stay” scenario within section 117C(5) of the 2002 Act and concluded that it would not be unduly harsh on T if she and Ms K remained in the United Kingdom was the appellant was deported to India.

7. At [20]-[22], the judge addressed the “go” scenario and concluded that it would not be unduly harsh on T for the family unit to relocate to India.

8. At [23], the judge went on and considered the very compelling circumstances issue, listing a series of relevant factors. She concluded that no such circumstances existed in the appellant’s case.

9. The appeal was accordingly dismissed.

The grounds of appeal and grant of permission
10. When seeking permission to appeal directly from the First-tier Tribunal, nine grounds were put forward. In summary, these were as follows:

(1) The judge had failed to undertake a lawful assessment of the “go” scenario, having regard to T’s circumstances;

(2) The judge had failed to undertake an adequate assessment of the “stay” scenario, again having regard to T’s circumstances;

(3) The judge had failed to take into account the public interest in keeping families together;

(4) The judge had failed to set out the test for very compelling circumstances and had failed to undertake a lawful proportionality exercise, with particular reference to the appellant’s length of residence and rehabilitation;

(5) The judge had failed to set out the best interests of T;

(6) The judge had failed to take account of Ms K’s evidence;

(7) The judge had acted with procedural unfairness by relying on a CPIN report on medical and healthcare provision in India when this had not been provided to the appellant in advance of the hearing;

(8) The judge failed to have proper regard to the Sentencing Remarks;

(9) The judge placed too much weight on the absence of a formal diagnosis of ADHD and/or autism in respect of T.

11. In granting permission, First-tier Tribunal Judge Veloso limited her decision to grounds 1-5, 7, 9.

12. No renewed application was made to the Upper Tribunal for permission to appeal in respect of grounds 6 and 8.

Rule 24 response
13. The respondent did not provide a rule 24 response.

Procedural matters: service of the error of law bundle on the respondent
14. It is unfortunate that have to record the failure of the appellant’s representatives to have served the error of law bundle on the respondent in advance of the hearing. Those practising in this jurisdiction should be well-aware by now that filing such a bundle on CE-File does not constitute service on the respondent. This must be done by email. If the bundle is large, it will have to be split into various parts. The correct “UT Directions” inbox must be used.

15. Although Mr Alhani helpfully obtained instructions from those instructing him as to the lack of service, we deemed it appropriate to issue an oral direction to the effect that the relevant individual at the firm was to provide an explanation for the lack of service no later than 4pm on Tuesday 3 June 2025 Upper Tribunal Judge Norton-Taylor.

16. We trust that representatives will ensure that such a failure does not occur in the future.

The hearing
17. Mr Alhani confirmed that there was no application to seek permission on grounds 6 and 8. He relied on his helpful skeleton argument and addressed the grounds 1-5, 7, and 9. The oral submissions are a matter of record and need not be set out here. In essence, they followed the grounds and emphasised the importance of T’s circumstances and the appellant’s length of residence and rehabilitative conduct.

18. Ms Lecointe opposed the appeal in all respects.

19. At the end of the hearing we reserved our decision.

Conclusions
20. We begin our assessment of whether the judge made any material errors of law by reminding ourselves of the need for appropriate judicial restraint before interfering with a first-instance decision, in line with numerous pronouncements to that effect from the higher courts.

21. Having exercised the appropriate restraint and considering the judge’s decision sensibly and holistically, we conclude that, for the reasons set out below, she did not make any material errors of law.

22. We address each of the grounds in turn.

Ground 1
23. When considering the “go” scenario under section 117C(5), the judge had regard to the relevant considerations and reached a conclusion which was open to her.

24. The judge confirmed that she had had regard to the evidence put before her: [10]. There is nothing in her decision to indicate that that statement had not been followed through when undertaking the unduly harsh assessment.

25. The judge identified the core issue of whether it would be unduly harsh for T to relocate to India and she made a correct legal self-direction: [15], [17].

26. Contrary to what is asserted in the grounds, the judge did take account of the evidence relating to T’s development and the ability of the appellant to find employment in India: [16], [20] and [21]. Indeed, the judge went beyond that and took account of the availability of wider familial support were the family unit to relocate to India: [21].

27. The judge was clearly aware that T was a British citizen. This was not an issue and Exception 2 was only potentially engaged by virtue of T’s British nationality. It is also the case that British nationality does not act as a “trump card” and would not have acted as a decisive consideration. We remind ourselves that a judge need not refer to each and every aspect of the evidence or step in their reasoning process when setting out their assessment and conclusions. In light of these matters, the fact that T’s nationality was not expressly referred to by the judge does not constitute a material error of law.

28. Ground 1 does not disclose an error of law.

Ground 2
29. The judge accepted that the appellant had been “an involved father” during the limited time he spent with T: [19]. That in no way precluded her from finding that Ms K had, at least on a practical level, been the primary carer: [16], [19]. Nor did it mean that separating the appellant from T would necessarily be unduly harsh, as suggested by the grounds.

30. As discussed previously, the judge was clearly aware of T’s difficulties at nursery. This was taken into account in both the “go” and “stay” scenarios under section 117C(5) of the 2002 Act. The judge acknowledged that separation would cause T distress or discomfort, but it was open to her to find that the impact would not reach the high threshold of being unduly harsh: [19].

31. The judge did not refer in terms to the ability of the appellant to maintain communications with T if separation took place. However, the judge was not required to set out every aspect of her reasoning. It is clearly implicit in her overall analysis that the appellant could maintain communication. There appears to have been no evidence suggesting that Ms K and T could not visit India. The judge recognised that T’s very young age would allow her to adapt to the situation: [19].

32. There is no error of law here.

Ground 3
33. The first difficulty with grounds 3 is that it relies on a view expressed by Lord Kerr in his dissenting judgment in Hesham Ali v SSHD [2016] UKSC 60. Secondly, and in any event, the fact that Exception 2 includes two limbs - the “go” and “stay” scenarios - necessarily means that a family unit may be split up. That is a consequence of Parliament’s view as to what the public interest involves. In the present case, the judge clearly had the public interest in mind and correctly directed herself in that regard.

34. Ground 3 fails.

Ground 4
35. The assertion that the judge failed to set out the test for very compelling circumstances is misconceived: the “test” speaks for itself. Section 117C(6) of the 2002 Act requires an individual to demonstrate that there are “very compelling circumstances over and above” those addressed in either of the two Exceptions.

36. The judge was clearly aware of the length of the appellant’s residence in the United Kingdom and a failure to have expressly referred to it at [23] does not disclose an error. As to rehabilitation, the judge did refer to courses undertaken whilst in prison and the efforts made to obtain employment: [23(b) and (c)].

37. When considering very compelling circumstances, the judge conducted a sustainable proportionality exercise and reached a rational conclusion.

Ground 5
38. This ground begins by asserting that the judge failed to set out the best interests of T. That is clearly wrong. At [16], the judge states that, “I consider the child’s best interests at the outset.” This is followed by consideration of T’s developmental issues and her wider familial circumstances. The best interests consideration is followed through in to the assessment of the “go” and “stay” scenarios.

39. The judge did not apply an impermissible “notional comparator” approach to the unduly harsh test.

40. Ground 5 fails.

Ground 7
41. When undertaking our preparatory reading this ground appear to have some merit. The relevant CPIN on healthcare in India had not been referred to by the respondent in her original reasons for refusal letter or the review.

42. However, during submissions it became clear that the CPIN had in fact been raised by the Presenting Officer at the hearing before the judge. Therefore, the appellant had had an opportunity to address the evidence relied on, whether by making submissions or, if it was felt necessary, applying for an adjournment in order to obtain contrary evidence. It appears as though no such submissions or application were made.

43. Whilst we make it clear that this ground of appeal is not misleading, the fact that the evidence in question was raised before the judge is fatal to any procedural unfairness argument.

44. Further, or in any event, Mr Alhani accepted that the appellant had provided no evidence at all in respect of relevant therapy/support for T in India. There was nothing before the judge to contradict what was said in the CPIN. Given that the burden was on the appellant, this of itself completely undermines the merits of ground 7.

Ground 9
45. The final ground on which permission was granted is misconceived, or at best simply a disagreement about weight. First, the judge did not hold against the appellant the fact that there had been no formal diagnosis of ADHD and autism. She simply acknowledged the fact that there was no such diagnosis (for good reason, given T’s very young age), but nonetheless properly took the concerns and indications into account: [16].

46. In any event, the attribution of weight is a matter for the fact-finding tribunal.

Grounds 6 and 8
47. On a belt-and-braces approach, we briefly address the two grounds on which permission was refused.

48. As to ground 6, it is self-evident that the judge took Ms K’s evidence into account: [10], [16] and [21].

49. Ground 8 is equally unmeritorious. Again, it is self-evident that the judge took account of the circumstances of the appellant’s offending: [23(a)].

Anonymity
50. The judge made no anonymity direction and there is no basis on which we should do so at this stage.

Notice of Decision
The making of the decision of the First-tier Tribunal did not involve the making of an error on a point of law.
The appeal to the Upper Tribunal is dismissed on all grounds and the decision of the First-tier Tribunal stands.

H Norton-Taylor
Judge of the Upper Tribunal
Immigration and Asylum Chamber
Dated: 2 June 2025