Tribunal decisions

The decision

IN THE UPPER TRIBUNAL
IMMIGRATION AND ASYLUM CHAMBER
Case No: UI-2025-001553

First-tier Tribunal No: EU/50494/2024; LE/04781/2024;
HU/59698/2024;
LH/07416/2024

THE IMMIGRATION ACTS

Decision & Reasons Issued:
On 29 November 2025

Before

UPPER TRIBUNAL JUDGE PINDER

Between

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

ARMANDO IBERHASAJ
Respondent in UT

Representation:
For the Appellant in UT: Mr Lawson, Senior Presenting Officer.
For the Respondent in UT: Mr Z Reza, Counsel instructed by Mayfairs Law Solicitors.

Heard at Birmingham Civil Justice Centre on 15 September 2025

DECISION AND REASONS

Introduction

1. This is the re-making of the decision in Mr Iberhasaj’s appeal against the Secretary of State’s refusal of his human rights claims. This follows Upper Tribunal Judge Canavan’s and Deputy Upper Tribunal Judge Durance’s (‘the panel’) earlier decision to set aside the decision of the First-tier Tribunal (‘the FtT’). The FtT decision had allowed Mr Iberhasaj’s appeal on Article 8 human rights grounds and was set aside because this contained material errors of law. The panel’s earlier decision (‘the error of law decision’) was promulgated on 30th July 2025.

2. Following a transfer order, I heard the re-making appeal on 15th September 2025.

3. For ease of reference, I will refer to the parties as they appeared below, namely to the Secretary of State as the Respondent and to Mr Iberhasaj as the Appellant in the FtT.

4. As was recorded at para 16 of the error of law decision, the focus for the re-making hearing in this Tribunal will be to focus on the relevant legal test, including whether the conviction reached the threshold of ‘serious harm’ to engage the statutory scheme
contained in Part V of the 2002 Act, and if it does, whether sections 117C(5) or (6) of the 2002 Act are satisfied. This Tribunal also preserved the findings of the FtT in respect of the genuine nature of the relationship established between the Appellant and his partner – see [16] and [17(e)].

5. The Respondent’s decisions refusing the Appellant’s claims are dated 9th January 2024.

The evidence

6. I had before me the parties’ composite bundle of evidence of 260 pages, which had been prepared for the error of law hearing. Neither party sough to adduce any further or updating evidence following the directions issued in the panel’s error of law decision. I have given careful consideration to all of the written materials contained in the composite bundle.

The hearing

7. The Appellant attended the hearing and was called to give oral evidence. He confirmed the truth and accuracy of his witness statement dated 29th July 2024 and adopted this as his evidence-in-chief. The Appellant was then cross-examined by Mr Lawson on behalf of the Respondent. There was no re-examination of the Appellant by Mr Reza. I then heard from the Appellant’s partner, who was also called as a witness to give oral evidence. Similarly, she confirmed the truth and accuracy of her witness statement dated 29th July 2024 and adopted this as her evidence-in-chief. She was then cross-examined by Mr Lawson and was asked one question by Mr Reza in re-examination.

8. Following the Appellant’s and his partner’s oral evidence, I heard legal submissions from both advocates, after which I confirmed that I would be reserving my decision. I have addressed both parties’ competing evidence and submissions below when setting out my analysis and conclusions.

Findings of fact and Conclusions

9. In reaching the findings of fact and conclusions set out below, I confirm again that I have very carefully considered the evidence as a whole. As I have recorded above, there is no longer any material dispute as to the essential factual matrix in this case relating to the basis of the Appellant’s Article 8 claim. This was as a result of his relationship with his partner being accepted as subsisting and genuine by the FtT and this being a finding of fact that was not challenged on appeal by the Respondent.

10. It is otherwise not disputed that the Appellant was convicted of a criminal offence for producing cannabis and sentenced to four months in custody on 19th December 2019 for this offence. The sentencing judge remarked that the Appellant “had barely been in the country and (he was) being used by others because of (his) predicament to help them grow the cannabis. There was virtually nothing in it for (him) other than a roof over (his) head”. The Appellant had pleaded guilty and was therefore given the full credit by the sentencing judge, who also confirmed having “taken into account (the Appellant’s) remorse”.

11. On 26th August 2022, the Appellant was convicted of driving without insurance and was sentence to a fine with his licence endorsed. Mr Lawson was able to confirm after retrieving the Appellant’s PNC record that the Appellant has not been convicted of any further offences since that date.

Does the Appellant’s 2019 conviction reach the threshold of ‘serious harm’ so as to engage the statutory scheme contained in s117C of the 2002 Act ?

12. Before assessing this issue in the context of this appeal, I have set out below the relevant legal framework for the Respondent to exercise her power to deport a person from the UK and the relevant considerations when a person raises their Article 8 ECHR rights in response.

Relevant legal framework

13. The power to make a deportation order stems in all cases from s.3(5) Immigration Act 1971, which provides as follows:

3(5) A person who is not a British citizen is liable to deportation from the United Kingdom if—

(a) the Secretary of State deems his deportation to be conducive to the public good; or

(b) another person to whose family he belongs is or has been ordered to be deported.

14. The power to deem a person’s deportation to be conducive to the public good is for the Secretary of State to exercise and assess. The burden of proof in establishing that the threshold for deportation has been reached lies also with the Secretary of State.

15. Two further statutory provisions prescribe how the Secretary of State is to assess whether a person’s deportation is conducive to the public good. The first statutory provision is s.32 Borders Act 2007, which provides as follows:

32 Automatic deportation

(1) In this section “foreign criminal” means a person—
(a) who is not a British citizen [or an Irish citizen],
(b) who is convicted in the United Kingdom of an offence, and
(c) to whom Condition 1 or 2 applies.

(2) Condition 1 is that the person is sentenced to a period of imprisonment of at least 12 months.

(3) Condition 2 is that—

(a) the offence is specified by order of the Secretary of State under section 72(4)(a) of the Nationality, Immigration and Asylum Act 2002 (c. 41) (serious criminal), and
(b) the person is sentenced to a period of imprisonment.

(4) For the purpose of section 3(5)(a) of the Immigration Act 1971, the deportation of a foreign criminal is conducive to the public good.

(5) The Secretary of State must make a deportation order in respect of a foreign criminal (subject to section 33).

(6) The Secretary of State may not revoke a deportation order made in accordance with subsection (5) unless—
(a) he thinks that an exception under section 33 applies,
(b) the application for revocation is made while the foreign criminal is outside the United Kingdom, or
(c) section 34(4) applies.

(7) Subsection (5) does not create a private right of action in respect of consequences of non-compliance by the Secretary of State.

16. The second statutory provision is s.117D Nationality, Immigration and Asylum Act 2002, which further defined the term ‘foreign criminal’ and states as follows:

117D Interpretation of this Part

(…)

(2) In this Part, “foreign criminal” means a person—

(a) who is not a British citizen,
(b) who has been convicted in the United Kingdom of an offence, and
(c) who—
(i) has been sentenced to a period of imprisonment of at least 12 months,
(ii) has been convicted of an offence that has caused serious harm, or
(iii) is a persistent offender.

17. As the Appellant in this appeal has not been sentenced to a period of imprisonment of at least 12 months, it is the definition of ‘foreign criminal’ at s.117D(2)(a)-(c)(ii) that has been invoked by the Respondent and which is said to apply to the Appellant. Thus in contrast to s.117D(2)(a)-(c)(i), where the sentence of 12 months’ imprisonment in itself is sufficient, the Respondent has to demonstrate that a person’s conviction has caused serious harm. In other words, she cannot merely rely on the type of sentence imposed following the conviction(s).

18. I need not address s.117D(2)(a)-(c)(iii) concerning ‘persistent offenders’ as this provision does not arise in these proceedings.

19. Where it is alleged, as it is here, that an offence has caused “serious harm” the wording of the statute demands a causal nexus to be directly established between that offence and the harm: it is not enough that that kind of offending generally causes serious harm. For instance, in LT (Kosovo) and Anr v Secretary of State for the Home Department [2016] EWCA Civ 1246 the Court of Appeal held that it cannot be assumed, without more, that supplying Class A drugs would have caused serious harm – see Laws LJ at [18].

20. In Wilson (NIAA Part 5A; deportation decisions) [2020] UKUT 00350 (IAC), the Upper Tribunal held, having reviewed Court of Appeal authorities including Mahmood, R (on the application of) v Upper Tribunal (Immigration and Asylum Chamber) & Ors [2020] EWCA Civ 717, that in appeals concerning s117D(2)(c)(ii) it will be for the Upper Tribunal to determine, as a matter of fact and on the balance of probabilities, whether such harm has been established.

21. In determining what factors are relevant or irrelevant to that question, the following is to be borne in mind, pursuant to the Upper Tribunal’s guidance at [53(3)] in Wilson:

(a) The Secretary of State’s view of whether the offence has caused serious harm is a starting point;

(b) The sentencing remarks should be carefully considered, as they will often contain valuable information; not least what may be said about the offence having caused “serious harm”, as categorised in the Sentencing Council Guidelines;

(c) A victim statement adduced in the criminal proceedings will be relevant;

(d) Whilst the Secretary of State bears the burden of showing that the offence has caused serious harm, she does not need to adduce evidence from the victim at a hearing before the First-tier Tribunal;

(e) The appellant’s own evidence to the First-tier Tribunal on the issue of seriousness will usually need to be treated with caution;

(f) Serious harm can involve physical, emotional or economic harm and does not need to be limited to an individual;

(g) The mere potential for harm is irrelevant;

(h) The fact that a particular type of offence contributes to a serious/widespread problem is not sufficient; there must be some evidence that the actual offence has caused serious harm.

Application of the above legal framework to the Appellant’s criminal conviction

22. In the instant case, the Respondent issued the Appellant with a Notice of Decision to make a deportation order on 19th December 2019. This Notice detailed that the Appellant was convicted of producing a controlled drug of Class B (cannabis), for which the Appellant was sentenced to four months’ imprisonment. In light of this, the Respondent stated in the same Notice that she deemed the Appellant’s deportation to be conducive to the public good and as such he is liable to deportation under s.3(5)(a) Immigration Act 1971. The Respondent also confirmed that she had decided to make a deportation order against him under s.5(1) of the 1971 Act. The usual notice inviting the Appellant to set out within a period of 20 days any reasons why he should not be deported to Albania was also given.

23. Following consideration of the representations made in response to the Notice by the Appellant, the Respondent issued her decision dated 9th January 2024 refusing those representations and maintaining the decision to deport the Appellant. It is in this decision that the Respondent has set out her reasons for deeming the Appellant’s deportation to be conducive to the public good, beyond simply referring to the Appellant’s conviction. In a short passage, she stated as follows [unnumbered paragraph, p.170 of the bundle]:

Your deportation is conducive to the public good and in the public interest because you have been convicted of an offence which has caused serious harm. This is because the trade in illicit drugs has a severe and negative impact on society. It is a process causing misery and sometimes death to the many thousands of people who are unfortunate enough to become addicted to them. Drug addiction affects not only on the drug users themselves, but also their families. Furthermore, since addicts are often driven to commit ancillary crimes in order to finance their habit, those involved in supplying drugs are involved in a process that has harmful consequences for society as a whole, destroying lives and creating havoc and insecurity in communities throughout the United Kingdom.

Therefore, in accordance with paragraph 13.2.1 of the Immigration Rules, the public interest requires your deportation unless an exception to deportation applies. The exceptions are set out at paragraphs 1 3.2.3 to 1 3.2.6 of the Immigration Rules.

24. The remainder of the letter addressed the Respondent’s position, with reasons, as to why she did not consider that the Appellant could meet any of the exceptions to deportation.

25. The passage extracted at para 23 above is the view that the Respondent has formed, and in accordance with the guidance in Mahmood and Wilson, that is my starting point. I would certainly agree that a conviction for producing cannabis serves, unarguably, as evidence that harm has been caused: see [41] in Mahmood, where Simon LJ stated that “(s)ome crimes, for example, supplying class A drugs, money laundering, possession of firearms, cybercrimes, perjury and perverting the course of public justice may cause societal harm.”

26. I am however required to consider whether that harm is “serious”. In undertaking that exercise, I note that the decision-maker has ascribed the Respondent’s reasons for deeming the Appellant’s conviction to have caused serious harm to general factors concerning the impact of the drugs trade on society more generally.

27. Applying the authorities, in particular Mahmood and Wilson, I am not assisted by the Respondent’s reliance on the impact had on society by “the trade in illicit drugs”. The law requires analysis of what harm the actual offence has caused and the fact that a particular type of offence contributes to a serious/widespread problem is not sufficient.

28. Moreover, and perhaps more importantly, there is no consideration in the Respondent’s decision of the sentencing remarks handed down when the Appellant was sentenced. The relevant passage provided as follows (paras B-C of transcript, p.206 of the bundle):

I am dealing with you for an offence of growing cannabis but, and I emphasise it is a big 'but', first of all, you were, it is accepted by the prosecution, not behind this operation at all. You had barely been in the country and you were being used by others because of your predicament to help them grow the cannabis. There was virtually nothing in it for you other than a roof over your head. You were caught and they have not been and in the meantime you have had another roof over your head provided by the government. You have now served the equivalent of a four month prison sentence.

29. I have very carefully considered the submissions made by those parties before me and having done so, I must conclude that the Respondent Secretary of State has not discharged the burden of proof. I accept that growing cannabis certainly can cause serious societal harm but it is clear from the sentencing remarks that the Appellant was vulnerable and was used by others for their benefit and for the committing of the offences that others had been operating. The length of the sentence imposed, of four months’ imprisonment, is also in my view indicative that the Appellant’s conviction, in the specific circumstances of the offending, did not cause ‘serious harm’.

30. That being the case, I am not satisfied that the Respondent Secretary of State has shown the Appellant to be a ‘foreign criminal’ as defined by s.117D(3)(c)(ii). Thus, in the remainder of my decision, I am tasked with balancing the Respondent’s Secretary of State’s view that the Appellant’s deportation would be conducive to the public good, against the evidence of the Appellant on the extent of his family and private life in the United Kingdom.

The Appellant’s Article 8 human rights appeal

31. The Respondent has taken a decision pursuant to s.3(5) of the 1971 Act to deport the Appellant. In doing so, she has refused to grant the Appellant leave to remain on human rights grounds. The Appellant has appealed, under s82(1)(b) of the Nationality Immigration and Asylum Act 2002, against that decision. He submits that the decision to refuse him leave and to deport him would be a disproportionate interference with his family and private life in the United Kingdom, which is protected by Article 8 ECHR.

32. It is common ground that the Appellant does enjoy a private and family life in the United Kingdom. As already referred to, the Appellant’s relationship with his partner has been accepted by the FtT as genuine and subsisting and this was a finding that was preserved by the Upper Tribunal at the last hearing in these proceedings. Mr Lawson did not seek to challenge the Appellant, nor his partner, on this issue and did seek to persuade me otherwise.

33. The Respondent accepts that the deportation of the Appellant would be an interference by a public authority with the Appellant’s exercise of these rights, and that this interference will have consequences of such gravity as potentially to engage the operation of Article 8.

34. There is no dispute on the part of the Appellant that the interference is in accordance with the law in the sense that the Secretary of State has the power to exercise her discretion under s3(5) of the 1971 Act.

35. The next question I must ask myself is whether the interference is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others. Even if the Respondent cannot demonstrate that the Appellant’s deportation is in the public interest because she has not been able to show that the Appellant is a ‘foreign criminal’ pursuant to my findings at [29]-[30], the Appellant has not held lawful leave in the UK. I accept therefore that his deportation or removal would be in pursuit of the public interest because, at the very least, the maintenance of effective immigration controls is in the public interest – s.117B(1) of the 2002 Act.

36. I now turn to the approach that was advocated by the Presidential panel in Wilson, which is to consider the question of whether it is conducive to the public good to deport into to the overall proportionality balancing exercise, that is to say the fifth and final Razgar question.

37. In support of her position, Mr Lawson submitted on behalf of the Respondent that the Appellant could continue his family life with his partner in Albania. He acknowledged that it may be inconvenient for her, since she does not speak the Albanian language but the Appellant had been able to adapt to the UK when not speaking English at all or fluently and so, in his submission, the Appellant’s partner could do the same.

38. Mr Lawson added that the couple’s relationship had been established and developed at a time when the Appellant did not have any lawful status in the UK and the Respondent had made clear her intentions to deport the Appellant in December 2019, prior to when the couple’s relationship had started and the partner had indicated in her evidence that she had been made aware of this by the Appellant when they started to live together. In this respect, Mr Lawson relied on the well-established authority of R (Agyarko) [2017] UKSC 11.

39. With regards to the relationship between the Appellant’s partner and her own sister and mother, Mr Lawson submitted that there was no evidence that this could not continue with a relocation by the Appellant and his partner to Albania through the use of modern means of communication and the health circumstances of the mother and sister were not so serious as to render the Respondent’s decision disproportionate.

40. Mr Reza in response asked me to accept that the Appellant and his partner have a very close relationship and the partner has been in the UK since she was a young child. She is not of Albanian heritage, has never travelled to Albania before and does not speak the language. The Appellant’s partner has been working in the UK for several years, achieving the position of manager in the retail industry. She also has very close relationships with her sister and mother in particular, whom she sees daily and to whom she has been providing support as a result of each of their respective health and physical needs and/or investigations.

41. Meanwhile, the Appellant has been lawfully working since he obtained the right to work having made a relevant application (EUSS) to the Respondent and subsequent appeal, which has remained pending. He has been financially independent therefore and speaks sufficient English for the purposes of s.117B(2)-(3) of the 2002 Act.

42. I set out my findings on the parties’ competing positions and evidence using the balance-sheet approach below.

The factors relied on by the Respondent in favour of her decision and the interference with the Appellant’s rights

The public interest

43. The Appellant’s deportation is in the public interest because the Appellant has not had lawful status in the UK and the Respondent deems the Appellant’s presence in the UK not to be conducive to the public good as a result of his criminal conviction from 2019.

44. As a result of this, the Appellant also does not meet the requirements of the Immigration Rules. I find that the weight to be attached to this is significant.

The factors relied on by the Appellant in favour of there being unjustifiably harsh consequences under Article 8 ECHR

45. The factors below include the preserved findings of the FtT in the Appellant’s favour:

(a) The Appellant’s family life established with his partner – this has been found to amount to a genuine and subsisting relationship. They are a couple, who live together;
(b) Expecting the Appellant’s partner to relocate with the Appellant to Albania, would – I accept – cause her unjustifiably harsh consequences. This is because she has no ties or links to Albania other than through the Appellant and she has never visited Albania nor lived there herself. She gave evidence, which I accept, that she is committed to her employment and to being independent, enjoying her career and earning her salary. I also accept her evidence that she has recently been providing daily support to her sister and her mother, who each have health and physical needs with her sister in particular being investigated for a possible cancer diagnosis. I accept that limiting the partner’s support to modern means of communication at present would cause unjustifiably harsh consequences to her;
(c) I also note the length of time during which the Respondent took to consider the Appellant’s representations against her decision of 19th December 2019, a period of just over four years, during which time the Appellant’s and his partner’s relationship was permitted to continue developing.

46. My starting point in respect of the Appellant’s own private and family life is that I am to attach little weight to this pursuant to s.117B(4) of the 2002 Act. However, in Rhuppiah v Secretary of State for the Home Department [2018] UKSC 58, the Supreme Court outlined the following:

49. It was in section 117A(2)(a) of the 2002 Act that Parliament introduced the considerations listed in section 117B. So, in respect of the consideration in section 117B(5), Parliament’s instruction is to “have regard … to the consideration [that] [l]ittle weight should be given to a private life established by a person at a time when the person’s immigration status is precarious”. McCloskey J suggested in para 23 of the Deelah case, cited in para 21 above, that the drafting “wins no literary prizes”. But, as both parties agree, the effect of section 117A(2)(a) is clear. It recognises that the provisions of section 117B cannot put decision-makers in a strait-jacket which constrains them to determine claims under article 8 inconsistently with the article itself. Inbuilt into the concept of “little weight” itself is a small degree of flexibility; but it is in particular section 117A(2)(a) which provides the limited degree of flexibility recognised to be necessary in para 36 above. Although this court today defines a precarious immigration status for the purpose of section 117B(5) with a width from which most applicants who rely on their private life under article 8 will be unable to escape, section 117A(2)(a) necessarily enables their applications occasionally to succeed. It is impossible to improve on how, in inevitably general terms, Sales LJ in his judgment described the effect of section 117A(2)(a) as follows:

“53. … Although a court or tribunal should have regard to the consideration that little weight should be given to private life established in [the specified] circumstances, it is possible without violence to the language to say that such generalised normative guidance may be overridden in an exceptional case by particularly strong features of the private life in question …”

47. The above makes it clear that the statutory provisions of s117B whilst mandatory in their applicability to every case, are not a strait-jacket mandating that little wight must be given to a set of circumstances, here in particular the Appellant’s family life established in the UK with his partner. In this case, the relevant provision is s117B(4) for the reasons that I have set out above, as opposed to s.11B(5) considered in Rhuppiah. However, that provision is drafted in exactly the same language as s117B(5):

(4) Little weight should be given to –
(a) a private life, or
(b) a relationship formed with a qualifying partner,
that is established by a person at a time when the person is in the United Kingdom unlawfully.

48. The above extract from the Supreme Court makes it clear that the provision of s117B(4) has to be applied in each case as a starting point, however is, in suitable cases, flexible enough to be overridden by particularly strong features. The reference to “an exceptional case” plainly is not seeking to create a sub-test to be met, but is reflective that it will not be in an ‘ordinary’ case where such flexibility will arise. In the same way as the reference to ‘exceptional’ appears in Gen 3.2 of the Immigration Rules.

49. The Appellant has otherwise not engaged in any criminal conduct of the type that he was convicted of in 2019 and which justified the Respondent’s deportation action against him.

50. The Appellant is otherwise financially self-sufficient, in that he has been supporting himself with a right to work lawfully but also with his partner earning sufficient income for the two of them. There is nothing to suggest that this will change in the near future. This factor is neutral.

51. It was not disputed that the Appellant speaks sufficient English for the purposes of s.117B(2) but in any event, this factor is also neutral.

52. In circumstances where the Appellant is in a genuine and subsisting relationship with his partner and that expecting her to leave the UK with the Appellant would cause her unjustifiably harsh consequences for the cumulative reasons that I have set out above at para 45, I am satisfied that the Appellant’s rights under Article 8 ECHR outweigh the Respondent’s assessment of the public interest. This is also in the context that I have considered, which is where the Respondent has not shown that the Appellant’s 2019 offence has caused serious harm.

53. It follows from this that the Respondent Secretary of State’s decision of 9th January 2024 to refuse the Appellant’s human rights claim is a disproportionate and, in turn, unlawful interference under s.6 of the Human Rights Act 1998.

Notice of Decision

54. The decision of the FtT dated 21st February 2025 did involve the making of a material error of law and has been set aside, pursuant to the decision of the Upper Tribunal promulgated on 30th July 2025.

55. I re-make the decision by allowing Mr Iberhasaj’s appeal against the Secretary of State’s decision of 9th January 2024 on Article 8 human rights grounds.

Sarah Pinder

Judge of the Upper Tribunal
Immigration and Asylum Chamber

20.11.2025