Tribunal decisions

The decision

IN THE UPPER TRIBUNAL
IMMIGRATION AND ASYLUM
CHAMBER Case No: UI-2025-001874
First-tier Tribunal No: HU/53042/2024
LH/03567/2024

THE IMMIGRATION ACTS

Decision & Reasons Issued:

24th June 2026

Before

UPPER TRIBUNAL JUDGE GREY

Between

SECRETARY OF STATE FOR THE HOME DEPARTMENT
Appellant
and

SHPRESIM KOKA (also known an FATION KOKA)
Respondent
Representation
For the Appellant: Mr J. Nappey, Senior Home Office Presenting Officer
For the Respondent: Mr D. Bazini, Counsel instructed by Warren Grant Immigration

Heard at Field House on 15 June 2026

Although this is an appeal by the Secretary of State, to avoid confusion, I shall refer to the parties as they were in the First-tier Tribunal.
Decision and Reasons
Introduction and background
1. This is an appeal brought by the respondent against the decision of a First-tier Tribunal Judge (“the Judge”) promulgated on 23 February 2025, in which she allowed the appellant’s appeal against the respondent’s refusal of his human rights claim made in support of his application to revoke a deportation order against him. The appellant is a citizen of Albania.
2. The appellant entered the UK in July 2001 stating that he was a 14 year old Kosovan national, giving the name Faton Koko. In December 2019, the appellant was informed by the respondent that she had received information that he was an Albania national. The appellant accepted that he was Albanian and that his name is Shpresim Koka.
3. On 20 April 2017 the appellant was convicted of two counts of Entering an arrangement to facilitate acquisition, retention, use or control of criminal property and was sentenced to 21 months imprisonment. He became subject to a deportation order served on 16 May 2017. He raised human rights submissions in response to the respondent’s decision to deport him which the respondent refused on 15 August 2017. The First-tier Tribunal (“FtT”) dismissed his appeal against the respondent’s decision on 22 November 2017. An appeal against the FtT decision was dismissed by the Upper Tribunal on 8 February 2018, the Upper Tribunal finding that the FtT did not err in law in determining that the appellant was unable to satisfy the requirements of either Exception to deportation, and that deportation did not amount to a disproportionate interference with the appellant’s Article 8 rights.
4. In 2019 and 2020 the applicant made various human rights submissions in support of an application to revoke the deportation order against him.
5. On 31 March 2022 the appellant was convicted of possession of a Class A drug (cocaine) with intent to supply and was sentenced to 3 years imprisonment, making him a “medium” offender for the purposes of section 117C of the Nationality, Immigration and Asylum Act 2002 (“NIAA”).
6. In a decision dated 11 March 2024, the respondent rejected the appellant’s human rights submissions and refused to revoke the deportation order. The appellant exercised his right of appeal in respect of the refusal of his human rights claim. The Judge allowed his appeal in a decision dated 23 February 2025.
The FtT Decision
7. The Judge allowed the appellant’s appeal on the basis that he satisfies Exception 2 under section 117C(5) NIAA because he has a genuine and subsisting relationship with a qualifying child and the effect of his deportation on his youngest child would be unduly harsh.
8. From [2] to [87] of the decision the Judge set out the background to the appeal, the evidence heard and submissions made at the hearing. The Judge found that she was able to deal with the appeal even though the deportation order in question was in different name to the appellant’s true name. This issue has not been challenged in these proceedings. The Judge confirmed that the previous judicial findings were her starting point in accordance with the Devaseelan principles. The Judge’s findings in relation to the disputed issues are at [88] et seq.
9. The Judge noted that at the time of the appellant’s previous appeal he was living with his then partner and children but that he no longer lives with the family and is not in a romantic relationship with his children’s mother. Consideration of Exception 2 was therefore only in relation to the appellant’s children. It was accepted by the respondent that the appellant has a genuine and subsisting relationship with his two children who were then 14 and 11 years age. The Judge found that the appellant was “closely involved” in his children’s lives and visits them most weekends.
10. Summarising the evidence of the children’s mother, Ms S, and the independent social worker (“ISW”) the Judge noted that Ms S’s main concern was in relation to her youngest daughter, IK, who she considered to be at a critical stage of her development. At [104] the Judge referred to previous evidence that IK had suffered nightmares and was bedwetting, but that this had improved when the appellant returned home after his first period of imprisonment. Following the appellant’s most recent period of imprisonment, Ms S reported that IK was still bedwetting and was showing attachment issues. The Judge records that Ms S stated that she had organised counselling for IK. The Judge found the evidence of Ms S to be credible despite the absence of supporting evidence from IK’s school or her GP.
11. The ISW’s report was based on a meeting with the family. The ISW indicated that there may be a need for therapeutic intervention for IK based on the information provided by her parents. The opinion of the ISW, accepted by the Judge, was that there would be a decline in the mental state of both children following their father’s removal which would be “unduly harsh” given their stage of adolescence.
12. At [112] the Judge concludes:
I consider the evidence supports a finding that the effect of the appellant’s removal from the UK would be unduly harsh on Isabella. The effect of deportation of the appellant would mean that Isabella would be aware that her father was no longer in the UK and would be unable to be part of her life, other than by remote contact which, given the information in the social work report I consider would not be sufficient to meet Isabella’s needs. The social work report clearly details the challenges faced by the children and in particular by [IK]. I consider that the evidence provided by the witness and the updated information in the social work report is supportive of a finding that the circumstances are now such that the effect on [IK] of the deportation of the appellant would be unduly harsh
The Appeal to the Upper Tribunal
13. The respondent claims the decision of the FtT is vitiated by material errors of law in the following respects:
1) The Judge failed to give reasons or any adequate reasons for departing from the previous judicial findings and for finding that the appellant’s deportation would be unduly harsh on his children for the purposes of Exception 2; and
2) The Judge made a material misdirection of law in failing to apply the elevated threshold for unduly harsh.
14. Permission to appeal was granted by the FtT on 26 April 2025.
The Hearing Before Me and Decision on the grounds
15. On behalf of the respondent, Mr Nappey adopted the grounds of appeal and Mr Bazini responded to his submissions made in support of the appeal. I do not rehearse the submissions but have taken them into account when reaching my decision on the grounds.
16. I have had in mind throughout the need to exercise judicial restraint. This Tribunal should not interfere with the decision of the First-tier Tribunal merely because it might have reached a different conclusion on the facts. The role of this Tribunal is not to re-try the case but to determine whether the decision under challenge involved the making of a material error of law. As emphasised in Volpi v Volpi [2022] EWCA Civ 464 at [2] to [3], findings of fact are entitled to respect and should only be disturbed where they are vitiated by legal error, such as a failure to apply the correct test, a misdirection, or inadequate reasoning that prevents the losing party from understanding why they lost. It is against that standard that I have assessed the merits of the respondent’s appeal. However, I am satisfied that the Judge’s reasons for concluding that the elevated unduly harsh threshold is met are inadequately reasoned and the respondent’s appeal should succeed on this basis.
17. The appellant appealed the respondent’s decision to refuse his human rights claim under section 82 of the NIAA on the ground that the decision is unlawful under section 6 of the Human Rights Act 1998.
18. Section 117A in Part 5A of the NIAA 2002 provides that, when a court or tribunal is required to determine whether a decision made under the Immigration Acts breaches a person's right to respect for private and family life under Article 8 ECHR (and, as a result, would be unlawful under section 6 of the HRA 1998) the court, in considering the public interest question, must have regard to the considerations listed in section 117B and, additionally, in cases concerning the deportation of foreign criminals, the considerations listed in section 117C.
19. Section 117C(5) provides:
Exception 2 applies where C has a genuine and subsisting relationship with a qualifying partner, or a genuine and subsisting parental relationship with a qualifying child, and the effect of C's deportation on the partner or child would be unduly harsh.
20. It was accepted by the respondent that the appellant has a genuine and subsisting relation with his two children and that they are qualifying children.
21. In relation to the matter of what amounts to “unduly harsh” for the purposes of section 117C(5). I remind myself that there is no notional comparator test: see HA (Iraq) v Secretary of State for the Home Department [2022] UKSC 22, at [40]. However, a judge is nevertheless required to explain how the particular circumstances of a case meet the elevated threshold required to demonstrate unduly harsh circumstances as articulated in the self-direction explained in MK (Section 55: Tribunal Options: Sierra Leone) [2015] UKUT 223 (IAC), as approved by the Supreme Court in KO (Nigeria) v Secretary of State for the Home Department [2018] UKSC 53 and HA (Iraq) v Secretary of State for the Home Department [2022] UKSC 22, at [46]:
…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…. (my emphasis)
22. It was accepted by the respondent that it would be unduly harsh for the appellant’s children to relocate with him to Albania. Thus, the disputed issue in relation to Exception 2 concerns the “stay scenario”: whether it would be unduly harsh for the appellant’s children to remain in the UK with the appellant deported to Albania.
23. The Judge’s findings and reasoning on the stay scenario are at [101] to [112] of the decision. The Judge records that the issue of the effect of the appellant’s deportation was considered in the previous appeal. The appeal in the FtT was in 2017 and in the UT was in 2018 when the appellant’s children were much younger. The Judge found that “matters have moved on since then”. The Judge refers to the fact that the appellant’s children are now older and that although the eldest child has coped better, Ms S has concerns about her younger daughter who she consider to be a critical stage of her development and that she has sought counselling for her daughter. The Judge refers to “ongoing problems with [IK]”. It appears that IK experienced nightmares and bedwetting at that time of the appellant’s previous appeal, which improved when the appellant returned home after his first period of imprisonment and which, her mother reports, have returned to a degree, although it appears the nightmares are now only “an occasional problem”.
24. The ISW report indicates that the purpose of the report was to conduct an assessment of the best interest of the appellant’s children. The Judge accepted the findings of the ISW in this regard and found Ms S’s evidence to be credible and that the lack of supporting evidence from IK’s school and GP did not damage to the weight to be given to her evidence.
25. I accept that bedwetting at IK’s age is uncommon and likely to be an indicator of underlying emotional difficulties. However, in my view, the Judge’s findings give rise to a number of unanswered questions which are relevant to the assessment of unduly harsh. It is not clear on reading the decision whether the nightmares and bedwetting remain a regular occurrence. It is not clear how IK’s attachment issues referred to at [104] have manifested. The ISW indicated that the there may be a need for “therapeutic intervention” for IK. No further information is provided in this regard. The Judge found that IK had commenced counselling a few months before the hearing but there is no evidence of what impact, if any, this has had on the situation and IK’s emotional health. I note that the ISW report indicates that the IK’s difficulties had required intervention and additional support from her school. Regrettably there was no evidence from the school before the Judge to indicate what interventions and support were arranged and how effective these have been.
26. It can be accepted that the evidence before the Judge indicates that the appellant’s daughters have been negatively impacted by the appellant’s absence and that this is a fair indicator of how they may be affected by his deportation, particularly with the relative finality of deportation as opposed to a period of imprisonment. However, what I find is not clear from the Judge’s reasoning is why the circumstances before the Judge lead her to conclude that these reach the elevated threshold of unduly harsh. In this regard I remind myself of the guidance on “unduly harsh” from HA (Iraq), that the test “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”. Although the Judge did not specifically direct herself in this regard, I do not consider that failure to be an error in itself. The Judge recorded the submissions of Mr Bazini in the decision and at [84] refer to the requirement for consequences of deportation to be “very severe” or “very bleak”.
27. However, taking into account the circumstances before the FtT in 2017 and the Devaseelan guidelines, I find that the Judge’s reasoning is insufficient to demonstrate what has changed since that time other than the passage of time, and on what basis she was able to depart from the previous judicial findings. Although the appellant’s children were much younger at the time of the previous judicial findings and it must be accepted that in adolescence the children are at a more critical stage in their personal development, the appellant’s children have now lived apart from their father from a number of years whereas at the time of his previous appeal he was still a part of the family unit. This does not appear to be reflected in the Judge’s assessment. Furthermore, the evidence before the FtT is that Ms S has a close network of support around her which has assisted her in looking after the children during the appellant’s absence.
28. I accept that the respondent is unable to identify from the reasoning provided in the decision, why the appeal was allowed.
29. For the reasons set out above, I conclude that the Judge’s findings on Exception 2 are insufficiently reasoned. The findings are therefore unsafe and consequently must be set aside. Having found that Exception 2 was satisfied the Judge did not proceed to consider the question of “very compelling circumstances”. This being the case, it is quite possible that a significant amount of additional fact-finding is required in order to determine the appeal which could require the Tribunal to hear extensive evidence. Applying paragraph 7.2 of the Practice Statements of the Immigration and Asylum Chambers of the First-tier Tribunal and the Upper Tribunal, I am satisfied that the appeal should be remitted to the First-tier Tribunal for a de novo hearing so that the appellant can benefit from the two-tier appeal process.
Notice of Decision
The Secretary of State’s appeal is allowed. The decision of the First-tier Tribunal is vitiated by material errors of law and is set aside.
The appeal is remitted to the First-tier Tribunal for a hearing before another judge.
S. Grey

Judge of the Upper Tribunal
Immigration and Asylum Chamber

17 June 2026