Tribunal decisions

The decision

IN THE UPPER TRIBUNAL
IMMIGRATION AND ASYLUM CHAMBER
Case No: UI-2025-001834
HU/52015/2024
LH/06637/2024

THE IMMIGRATION ACTS

Decision & Reasons Issued:

On 15th of December 2025

Before

UPPER TRIBUNAL JUDGE BRUCE

Between

BO (NIGERIA)
Appellant
AND

SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:

For the Appellant: Ms Papachristopoulou, Refugee and Migrant Centre
For the Respondent: Mr Tufan, Senior Home Office Presenting Officer

Heard remotely via Field House on 29 October 2025

Anonymity

Unless and until a tribunal or court directs otherwise, the Appellant is granted anonymity. No report of these proceedings shall directly or indirectly identify him, any of his witnesses or any member of his family. This direction applies to, amongst others, both the Appellant and the Respondent. Failure to comply with this direction could lead to contempt of court proceedings

DECISION AND REASONS

1. The Appellant is a Nigerian national born in 1969. He appeals with permission against the decision of the First-tier Tribunal to dismiss his human rights appeal.

Background and Matters in Issue
2. The central facts of the Appellant’s claim are not in dispute. They are as follows.
3. The Appellant entered the United Kingdom on 11 May 2006 as a visitor. He overstayed. In 2008 he successfully applied for an EEA residence card on the basis of his marriage to a Ms Danso, a French national.
4. On 23 December 2013 at Wood Green Crown Court the Appellant was convicted for his part in a conspiracy to ‘assist unlawful immigration into the EU’. Evidence presented at trial indicated that his own marriage, to Ms Danso, had been a sham; the Appellant had further been involved, over an 18 month period, in assisting an immigration advisor to make false applications on behalf of other clients. In his sentencing remarks HHJ Patrick found the offences to “strike at the heart of our immigration system”. The Appellant and his co-defendant exploited vulnerable people, who were charged significant amounts of money for the ‘advice’ and false applications. He was sentenced to two consecutive sentences totalling 2 years in prison, with the longest single sentence being one of 18 months.
5. On the 4 September 2014 his EEA residence card was revoked on the basis that his relationship with Ms Danso had been a ‘marriage of convenience’. That decision was undisturbed on appeal. A deportation order was signed on 18 February 2015.
6. There then followed a decade in which no action was taken to deport the Appellant. During that time he made at least three sets of representations which he asked to be treated as ‘fresh’ claims for either protection or human rights status; he launched unsuccessful judicial review proceedings; he had his case dismissed, on statutory appeal, by three different judges of this chamber. On 7 February 2024 the Secretary of State refused, for the fourth time, to revoke the deportation order, and refused to grant leave on human rights grounds. That was the decision that was the subject of the appeal before the First-tier Tribunal.
7. As my brief summary above foreshadows, the First-tier Tribunal could not come to the facts in this appeal with an entirely clean slate. That is because it was bound by the principles set out in the ‘starred’ decision of Devaseelan [2002] UKIAT 000702. That meant that the three decisions made by the Tribunal in the past were to be treated as authoritative determinations of the case as it stood on the dates that those decisions were taken. Although, pursuant to further guidance of the Court of Appeal in SSHD v BK (Afghanistan) [2019] EWCA Civ 1358, the First-tier Tribunal was required to conscientiously decide this appeal on the evidence before it, its starting point had to be those earlier decisions. On each of those previous occasions the Tribunal had held that the Appellant’s right to respect for his family life in the UK, with his current partner and children, was outweighed by the strong public interest in his deportation.
8. That said, the circumstances had, to some degree, changed since the case had last come before the Tribunal in 2021. The Appellant’s four children (born in 2004, 2007, 2009 and 2013) had all grown older and the eldest three had naturalised as British citizens. The Tribunal was provided with expert reports and evidence from the children’s schools, the substance of which was that the family would suffer greatly should the Appellant be deported. The Appellant’s partner had been subject to Female Genital Mutilation as a child in Nigeria, and continued to suffer from Post Traumatic Stress Syndrome along with other health issues. She worked full time but would struggle to maintain this employment as well as supporting the day to day care needs of the children, which are currently met by the Appellant. A Mr Akai, who prepared a clinical psychology report, opined that both she and the children would require additional support in those circumstances and would benefit from interventions such as Cognitive Behavioural Therapy.
9. Further expert evidence came from Independent Social Worker (ISW) Mr Musendo, who was of the view that it was strongly in the children’s best interests for their family unit to remain intact. Mr Musendo was particularly concerned about the disruption to the children’s education should they travel to Nigeria with their father. Perhaps because Mr Musendo’s evidence was criticised by the Upper Tribunal in its decision dismissing the appeal in 2021, for this appeal a new ISW was instructed. This ISW, a Mr Chester, assessed the family alongside evidence from the children’s schools and church, and reported that the Appellant is actively involved in his children’s lives, had that they each enjoy a “very close relationship” with him. The church described him as being a “true definition of a good parent”. Mr Chester concluded that their father’s deportation risked causing them “significant emotional harm”. All of this went directly to the question posed by the statute: would the deportation be ‘unduly harsh’ for the children in this family?
10. Having had regard to this evidence the Tribunal directed itself to the guidance in HA (Iraq) [2022] UKSC 22 and in particular its endorsement of the Upper Tribunal’s approach to what the term ‘unduly harsh’ should be interpreted to mean: it 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”.
11. The Tribunal then makes its findings. In respect of the ‘go’ scenario, where the family relocate to Nigeria together, the Tribunal noted the Devaseelan findings of the previous Tribunals that this option would not be unduly harsh. Although the Appellant has obviously been out of Nigeria for many years, he had been found to have downplayed the extent of his connections there, and he was an adult who was perfectly capable of working to support his family. The same could be said for his partner. Whilst the children would take some time to adapt to life in Nigeria, it could not be said that the consequences of that move would meet the threshold of undue harshness. Whilst the transition to life in Nigeria was “likely to impact the children’s mental health in the short term” they would be with both their parents, and this would be in their best interests.
12. As to the ‘stay’ scenario, where the family remain in the UK without the Appellant, the Tribunal noted the Devaseelan findings that the family had suffered difficulties when the Appellant was in prison. His partner had struggled to cope with four children on her own and to work at the same time. The children were however much older now – the eldest was an adult, and the next two were 17 and 15. It was open to the Appellant’s partner to adjust the hours she worked in order to manage. The Tribunal then said this:
“80. Judge Sangha did not have the additional evidence before me including the unchallenged evidence from Mr Chester who formed the view that the Appellant’s deportation would represent “significant emotional harm” due to their very strong attachment to the Appellant (at paragraph 8.11). I accept this evidence. I find that in the short term the children and his partner would be impacted and would miss not having the daily physical and emotional support that they receive from him. I find that some of this could be compensated by remote contact but I appreciate it would not be to the same extent…”
13. The Tribunal recognised that given the ages of the elder children the real focus for enquiry had to be on the youngest child, only 12 years old at the date of the hearing. It noted the concerns raised by the child’s school about his energy levels and interaction with his peers. He told staff that the prospect of his father’s deportation was causing him distress; staff considered him to be an emotionally immature child who required “planned support” to help him cope with change. The Tribunal accepted all of that. It accepted that the child, and indeed his siblings, would be impacted by the deportation, and that the effect would be ‘harsh’, but in line with the earlier findings, made by decision makers when these children were all much younger, the First-tier Tribunal concluded that it would not meet the elevated threshold of undue harshness.

Grounds of Appeal: Discussion and Findings
14. I can say at once there is in my view little to no prospect that this appeal could ever be properly allowed on the basis of s117C(6) of the Nationality, Immigration and Asylum Act 2002. That is because it the consideration of whether there are “very compelling circumstances” in this case the decision maker would be bound by law to give a very great weight to those matters militating in favour of the public interest in deportation. Here those matters are that the Appellant was actively and criminally involved in circumventing immigration control on behalf of himself and others; the family life that he relies upon has been built and developed at a time when he has only ever held leave on a fraudulent basis or when a deportation order was already in force. Whilst it is true that the public interest might be diminished by the unfathomable failure to deport the Appellant in the decade since the deportation order was signed, that is a matter of little significance in the overall balancing exercise: he has known, all that time, that he had no right to be in this country and he should therefore have left.
15. That said, this is not the provision which the Appellant seeks to rely upon. The Appellant seeks to rely on s117C(5) of the 2002 Act to submit that it is not his human rights that should prevent deportation, rather it is the human rights of his children. In accordance with the decision of the Supreme Court in KO (Nigeria) [2018] UKSC 53, this requires the decision maker to look only at the impact of deportation on those children, without weighing in the balance the countervailing factors relating to their father. The statutory language of ‘undue harshness’ is broken down in the related immigration rules so that decision makers are required to evaluate that test in two different scenarios: the ‘go’ scenario, where the whole family relocate to Nigeria, and the ‘stay’ scenario in which the other family members remain here without the Appellant. As I set out above, in this case the Tribunal found against the Appellant on both counts. The Appellant now has permission to argue that this conclusion was inadequately reasoned, and incompatible with the Tribunal’s acceptance of Mr Chester’s evidence.
16. As the submissions developed before me, in became apparent that Mr Chester’s evidence lies at the heart of this case. Whilst his report was not the only evidence relating to the children, it was the most recent. It was the centrepiece of the Appellant’s ‘fresh’ human rights claim and request that the deportation order be revoked; unlike most of the remaining evidence (including the assessments of psychologist Dr Akai and ISW Mr Musendo) it was not therefore the subject of Devaseelan findings. It was unchallenged, and accepted in its entirety. In her oral submissions Ms Papachristopoulou focused in particular on the Tribunal’s conclusion that – I paraphrase – the children would ‘get over it’. There was, she said, no justification for the Tribunal’s finding that the adverse impact on the children would only be “short term”.
17. What then, did Mr Chester say? In her submissions Ms Papachristopoulou focused on this passage:
“8.11 It is my view that these harms to the children represent “significant emotional harm” as defined by the Children Act 1989 (s31). This is because Ms Oluokun and the children have a very strong attachment to Mr Ogunmakin and are profoundly concerned if he were to be deported”.
18. She submitted that this was a conclusion reached by Mr Chester after he had regard to all the pertinent evidence. He had interviewed the family by videolink in April 2024. He had read all of the previous judicial decisions, information provided by the children’s schools, the family’s church, and had regard to the opinions offered by other professionals in the past, including Mr Musendo and Dr Akai. Mr Chester is a social worker of some 25 years standing and his expertise was not in issue. Nowhere in his report does he say that the “significant emotional harm” suffered by the children, in either the ‘go’ or ‘stay’ scenarios, would be short term.
19. I accept that Mr Chester was certainly an expert. He plainly has considerable experience and his opinion was going to be of obvious importance to the Tribunal’s consideration of this claim. His conclusions do however require some unpacking.
20. The children told him that they love their father and that they are very close. That was, as I read all of the historical decisions, never in issue. It is to be expected that children will be upset if a parent is to leave the family home. The school letters confirmed that the Appellant is actively involved in their lives; the GP believed him to be their primary carer; a social worker had, in 2018, described him as the “heart” of this family. Again, none of that was in issue, and had been accepted by the previous Tribunals. Much of the discussion leading to the conclusion that the children would suffer ‘significant emotional harm’ if the deportation were to proceed was based on how the children, and their mother, were affected when the Appellant was sent to prison. Nowhere does Mr Chester consider the passage of time since that event. The children were then 10, 6, 4 and an infant. Their mother, perhaps unsurprisingly, found it difficult to cope. It is self-evident that this is a very different situation from the one that she would find herself in today. At the date of the First-tier Tribunal decision the children were aged 20, 17, 15 and 12. They do not need the level of care or physical presence that they once did. Mr Chester uncritically accepts the family position that the elder children cannot be expected to assist their mother because they have their studies. He records that they are British without recognising that they are also entitled to Nigerian citizenship. He proceeds on the basis that the family’s fears about Nigeria – attacks, destitution, FGM – are all well founded, when they are not. He appears to place weight on the assertions about the Appellant’s partner’s mental health, whilst at the same time acknowledging that he is not qualified to make an assessment about that.
21. I do not intend by the foregoing to pick holes in the evidence of Mr Chester. Neither I, nor the First-tier Tribunal, doubt his expertise, or that his opinion is not genuinely held. But in this jurisdiction, and in this context, his evidence was only one part of the picture. The points I make serve simply to illustrate that there were other matters to be explored, and those were all part of the holistic exercise required of the Tribunal. Mr Tufan submits that what the Tribunal has done is to stand back, and looking at the evidence as whole, has concluded that the evidence of Mr Chester does not in fact take this case much further, or sufficiently further, than it was before Judge O’Callaghan in 2021. The Judge was entitled, upon conducting that holistic exercise, to conclude that the undoubted adverse impact that there would be on this family would not be so dramatic, or so long term, as to render the Respondent’s decision unlawful. I have to agree. Mr Chester may, at 11.6 of his report, have offered the view that any separation would cause “lasting emotional harm” for the children. That may turn out to be true. It is however some way from reaching the elevated standard of “undue harshness”, the test that the Tribunal had to apply; a requirement that the consequences be “something severe, or bleak”. I am not satisfied that there was any error in approach.

Decisions
22. The decision of the First-tier Tribunal is upheld and the appeal is dismissed.
23. There is an anonymity order in this case only in order to protect the identity of the Appellant’s children.

Upper Tribunal Judge Bruce
Immigration and Asylum Chamber
9 December 2025