Tribunal decisions

The decision

IN THE UPPER TRIBUNAL
IMMIGRATION AND ASYLUM CHAMBER
Case No: UI-2025-001778

First-tier Tribunal No: HU/53380/2021
HU/01359/2024

THE IMMIGRATION ACTS

Decision & Reasons Issued:

On 27th of January 2026

Before

UPPER TRIBUNAL JUDGE O’BRIEN

Between

SECRETARY OF STATE FOR THE HOME DEPARTMENT
Appellant
and

WALLACE MACHINGURA
(NO ANONYMITY ORDER MADE)
Respondent

Representation:
For the Appellant: Mr McVitie, Senior Home Office Presenting Officer
For the Respondent: In person

Heard at Manchester Civil Justice Centre on 3 November 2025

DECISION AND REASONS
1. For the sake of certainty, I refer to the parties below as they were known in the First-tier Tribunal.
2. The respondent appeals against the decision of a panel of judges of the First-tier Tribunal (the judges) allowing the appellant’s appeal against the respondent’s refusal of his human rights claim, made in the context of deportation proceedings.
Brief Relevant Chronology
3. The appellant’s immigration and offending history is set out the judges’ reasons at [2]-[4]. In short, he first entered the United Kingdom on 4 November 1996 and overstayed after expiry of his six month visit visa. On 31 December 1998, he pleaded guilty to driving a motor vehicle with excess alcohol, using a vehicle while insured, using a vehicle with no test certificate, and resisting or obstructing a constable. He was sentenced to 49 days’ imprisonment. On 3 February 1999, the appellant was removed voluntarily to Zimbabwe. On 18 February 1999, the appellant married Chantelle Howard, a British citizen, in Zimbabwe and claims to have most recently entered the United Kingdom on 7 December 1999 with 6 months’ leave to remain as her spouse.
4. On 1 February 2002, the appellant pleaded guilty to driving a motor vehicle with excess alcohol and was sentence to 4 months’ imprisonment. On 11 March 2005, he was found guilty of a series of offences related to drink driving, dangerous driving, fraud, and obstruction, for which he was sentenced to a total of 3 years and 6 months’ imprisonment. The longest single sentence was 14 months’ imprisonment for dangerous driving.
5. In response to the respondent’s decision on 19 October 2006 to deport the appellant, he made a claim for asylum on 24 November 2006. The appellant’s appeal against the respondent’s refusal of that claim was ultimately dismissed and a deportation order was signed on 9 October 2009. However, he was not removed and made a human rights claim on 12 May 2015, which was rejected under paragraph 353 as not constituting a fresh claim. The appellant made a further human rights claim on 9 July 2020, and it is his appeal against the respondent’s refusal of that claim to which the judges’ decision relates.
6. The judges concluded that deportation would have unduly harsh consequences for the appellant’s partner and children, and so accepted that deportation would be disproportionate under Article 8 ECHR.
Grounds of Appeal
7. In her grounds, the respondent asserts that the judge failed to have regard to the high threshold set by the ‘unduly harsh’ test, and failed to give adequate reasons for why the test was met in this case. She asserts that there was no evidence to support the judges’ finding, in effect asserting that their decision was perverse. The respondent further asserted that the judges had failed to have regard to other support available to the family.
8. Permission to appeal was refused by the First-tier Tribunal; however, permission was granted on renewal by Upper Tribunal Judge McWilliam. She observed that it was arguable that the decision was based on the appellant being a ‘stay at home’ father, that it was arguable that most parents played an ‘essential role’ in supporting their children and that, consequentially, it was arguable that the judges had not adequately reasoned why the elevated test was met.
Submissions
9. Mr McVitie relied on the comprehensive grounds to submit that the appeal should be allowed. The appellant argued that the judges had had before them evidence from a social worker regarding the effect on the children of his deportation, and also oral evidence of his support for not only the children but also his partner. The judges had been told that he had been trained to administer the necessary medication if his partner suffered a hypoglycaemic attack and had done so on a couple of occasions at night.
Consideration
10. The judges record at [6] that the appellant has a British partner, Samantha Saidi, with whom he has lived since 2009. Together they have two children age 13 and 8 years respectively at the date of the hearing. The appellant also has adult children from his marriage to Ms Howard and two grandchildren.
11. Having identified at [7] to the issues in the case, and directed themselves to the applicable statutory provisions at [11]-[13] (with a further self-direction on the application of those provisions at [18]-[19] and footnotes to the latter paragraph), the judges made the following material findings of fact at [17]:
a. It was accepted at the hearing that Ms Saidi and the children were a qualifying partner and qualifying children respectively, with whom the appellant’s relationship was genuine and subsisting.
b. It was not suggested that it would be ‘reasonable’ for Ms Saidi or the children to go to Zimbabwe.
c. If family life were to continue after the appellant’s deportation , it would need to be by way of video calls and visits to Zimbabwe.
d. Such trips would cost £3,000 and so would be infrequent, if at all.
e. The appellant is a loving and attentive father who has a close bond with the children.
f. The appellant and Ms Saidi gave genuine evidence about the ‘significant impact’ separation would have on her and the children.
g. The appellant is a ‘stay at home father’ (as he is unable to work) who does the school run, cooks for the family and attends school events whilst Ms Saidi works full time.
h. Ms Saidi has a limited amount of familial support, and nothing of the level provided by the appellant.
i. There was some support from the appellant’s sister but that seems largely to facilitate contact between the relevant children and their cousins at the weekend.
j. The appellant’s support for Ms Saini goes further than normal, not only with the children, but also in managing her diabetes. He gave her great support when she suffered from a hypo attack and also provided increased support when she was unable to function as normal because of her diabetes.
k. The Social Worker reported that both children were at a ‘crucial stage in their development’, and detailed the close bonds that the appellant had with them and the reliance placed on him by Ms Saidi.
12. The judges’ conclusions on undue harshness are set out in [20]:
‘20. We find on the balance of probabilities that the level of harshness to both Ms Saidi and the younger children of the Appellant would be undue and goes beyond what would be acceptable. The Appellant is not just a parent or partner but has an essential role in supporting Ms Saidi and the children. His role encompasses getting the children to and from school and extra-curricular events and participating in pastimes with the children, cooking for the family during the week and providing a level of support to Ms Saidi when she is experiencing the detrimental effects of her diabetes that goes above and beyond the ‘ordinary’ role of a partner. To be separated from the Appellant and only be able to have contact with him through video calls or visits that are likely to be rare if they occur at all would, we find, be unduly harsh.’
13. It is clear beyond doubt that the judges were aware that the test for satisfaction of exception 2 was ‘undue harshness’ on Ms Saidi and/or the couple’s children. As for what that test entailed, the judges directed themselves in footnote 3 to KO (Nigeria) v SSHD [2018] UKSC 53 and HA (Iraq) v SSHD [2020] EWCA Civ 1176. However, express consideration of those cases appears limited, respectively, to reminding themselves that the severity of the offending is not a factor to be taken into account in the analysis, and to noting that there is no requirement for a finding of exceptionality but rather that there is no reason why cases of undue harshness may not occur quite commonly’.
14. No express reference is made to the meaning of the phrase ‘unduly harsh’. In HA (Iraq) & ors v SSHD [2022] WLR 3784, [2022] UKSC 22, the Supreme Court considered the best approach to be that stated in KO (Nigeria) to be ‘authoritative: the approach originally set out in MK (section 55 – Tribunal options) Sierra Leone [2015] INLR 563, [2015] UKUT 223 (IAC) at [46]:
“… ‘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.”
15. Of course, mere failure to cite a case or refer to a proposition of law set out therein is not an error of law, provided that the proposition is applied, and applied correctly. Moreover, Judges of the First-tier Tribunal, a specialist expert tribunal, should be taken to know and have applied the law correctly unless it is clear that they have not. Nevertheless, they are obliged to give sufficient reasons for their conclusions that parties can fairly understand how the principle controversial issues have been decided.
16. In this case, the judges’ reasons for finding that the appellant’s deportation would be unduly harsh on his partner and their children, summarised at [20], are in essence that he undertakes all of the activities a parent can reasonably be expected to undertake, while Ms Saidi works full-time, that he supports her when necessary with her diabetes, and that deportation would halt almost all if not all face-to-face contact between the appellant and Ms Saidi and their children. Their reasons do not, even on a fair reading and even taking into account the primary findings of fact at [17], help the reader understand why the consequences of deportation would be elevated beyond ‘bleak’ or ‘severe’.
17. There is for instance, no consideration of how Ms Saidi could reasonably alter her working hours to undertake some of the functions done by the appellant for their children, or the effect on them if some could not reasonably be done by her. There is no consideration of what assistance she might be able to access, save for limited input from their respective families (evidence of which even the judges accepted was not wholly consistent). There is no proper critique of the social worker’s report, let alone a sufficient explanation for how the social worker’s opinions support a finding of undue harshness. There is no adequate analysis of the appellant’s assistance regarding Ms Saidi’s diabetes, which is only fleeting mentioned in her witness statement (and did not include the detail mentioned in the decision, let alone the additional detail submitted to me). There was no detail given, let alone analysis of, the ‘significant impact’ the couple claimed, and the judges appear to have accepted, that his deportation would have on their children.
18. In short, I find that the judges gave insufficient reasons for concluding that the appellant’s deportation would be unduly harsh on Ms Saidi and their children and consequently find that the decision involved the making of an error of law. I should add that it was unnecessary in the circumstances to consider whether the judges’ conclusions were perverse or demonstrated a misapplication of the relevant test. It is unnecessary therefore to note much more than that it is difficult to escape the conclusion that the judges placed unreasonable significance on the appellant’s role as a ‘stay at home father’, doing frankly no more than a parent with the time could be expected to do.
19. I did not canvas with the parties the appropriate disposal. However, whilst the judges’ findings on exception 1 and the agreed position that it would be unduly harsh for the wife and children to leave the United Kingdom with the appellant are unchallenged, it is necessary to undertake extensive fact-finding on the harshness of family separation, and whether there are very compelling circumstances making deportation disproportionate, relevant to which will be the extent to which exception 1 is satisfied (consideration of which was not fully undertaken by the judges). Consequently, I am satisfied that the most appropriate course of action is to remit the matter to the First-tier Tribunal for rehearing, albeit with certain findings preserved.
20. I formally record that the facts listed at paragraph 11a-e and g above are preserved, as are the judges’ conclusion at [16] that the appellant does not satisfy exception 1 because he has not resided in the United Kingdom lawfully for most of his life. Otherwise, all findings of fact (and in particular all findings of fact relevant to exception 2) are set aside.
21. The appellant will no doubt seek permission to adduce updated evidence, in particular on the effect of deportation on his wife and children. Appropriate directions should be sought from and given by the First-tier Tribunal.
Notice of Decision
1. The decision of the First-tier Tribunal involved the making of an error of law and is set aside, with facts preserved as detailed in paragraph 20 above.
2. The matter is remitted to the First-tier Tribunal to be heard by another judge or judges.

Sean O’Brien

Judge of the Upper Tribunal
Immigration and Asylum Chamber

22 January 2026