UI-2025-001896

• Status of case: Unreported
• Hearing date: 6 Aug 2025
• Promulgation date: 11 Sep 2025
• Publication date: 26 Sep 2025
• Last updated on: 26 Sep 2025

The decision

IN THE UPPER TRIBUNAL
IMMIGRATION AND ASYLUM CHAMBER
Case No: UI-2025-001896

First-tier Tribunal No: HU/00213/2024

THE IMMIGRATION ACTS

Decision & Reasons Issued:
On 11 September 2025

Before

UPPER TRIBUNAL JUDGE HANSON
DEPUTY UPPER TRIBUNAL JUDGE PICKERING

Between

HEINE BERNARD ESTERHUIZEN
(nO ANONYMITY ORDER MADE)
Appellant
and

SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: Ms Bustani instructed by Lam & Meerabux Solicitors.
For the Respondent: Ms Blackburn, a Senior Home Office Presenting Officer.

Heard at Bedlington Law Courts on 6 August 2025


DECISION AND REASONS
1. In a determination promulgated on 1 July 2025 the Upper Tribunal found a material error of law in a decision of the First-tier Tribunal which allowed the Appellant’s appeal against the refusal of his human rights claim relied upon as an exception to the decision to deport him from the United Kingdom. A copy of that determination is set out at Appendix A to this decision.
2. The Appellant is a citizen of South Africa born on 8 May 1985 who entered the UK lawfully on 19 January 2014 with entry clearance to join his parents, valid to 14 April 2018. He was 18 years of age at that time. On 15 April 2018 the Appellant made an application for Indefinite Leave to Remain on the basis of his UK ancestry which remains outstanding.
3. The Appellant is subject to an order for his deportation from the United Kingdom following his conviction on 26 April 2021 of three counts of rape of a woman aged 16 years or over and a breach of a non-molestation order for which he was sentenced to 6 years and 9 months imprisonment.
4. The Appellant did not accept his conviction and the First-tier Tribunal recorded an attempt made by him to appeal which was dismissed by the Court of Appeal on 24 May 2022, and submissions made to the Criminal Case Review Commission on 7 August 2023 which they refused to accept on 2 July 2024.
5. Directions were given for the filing of additional evidence, skeleton arguments, and the provision of an Afrikaans interpreter to assist the Appellant’s mother. Directions provided that the written documents shall stand as the evidence in chief of the maker. We heard evidence given in reply to cross-examination and re-examination from both the Appellant and his mother. Although problems were experienced between his mother and the Afrikaans interpreter she has lived in the UK for considerable period of time and was able to happily answer questions put to her English. We are satisfied the Appellant has received a fair hearing in which both he and his witnesses were able to provide all the evidence they wished us to consider.
6. Although there was no application to treat the Appellant as a vulnerable witness we note the evidence provided in relation to both his and his mother’s mental health and other needs and have therefore treated him and his mother accordingly, and taken into account any difficulties that may be attributed to the same when assessing the weight that we give to the evidence, both individually and as a whole.
7. Section 117C Nationality, Immigration and Asylum Act 2002, states:

117C Article 8: additional considerations in cases involving foreign criminals

(1) The deportation of foreign criminals is in the public interest.
(2) The more serious the offence committed by a foreign criminal, the greater is the public interest in deportation of the criminal.
(3) In the case of a foreign criminal (“C”) who has not been sentenced to a period of imprisonment of four years or more, the public interest requires C's deportation unless Exception 1 or Exception 2 applies.
(4) Exception 1 applies where—
(a) C has been lawfully resident in the United Kingdom for most of C's life,
(b) C is socially and culturally integrated in the United Kingdom, and
(c) there would be very significant obstacles to C's integration into the country to which C is proposed to be deported.
(5) 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.
(6) In the case of a foreign criminal who has been sentenced to a period of imprisonment of at least four years, the public interest requires deportation unless there are very compelling circumstances, over and above those described in Exceptions 1 and 2.
(7) The considerations in subsections (1) to (6) are to be taken into account where a court or tribunal is considering a decision to deport a foreign criminal only to the extent that the reason for the decision was the offence or offences for which the criminal has been convicted.

8. There are preserved findings from the decision of the First-tier Tribunal, a number of which were identified by Miss Blackburn in her skeleton argument as being notable, but not limited to, the following:

a. That the Appellant is a serious offender ([23] ED)
b. That there is no evidence of rehabilitation, and a high risk of reoffending and harm remains ([55] FTD)
c. That the Appellant would face very significant obstacles to reintegration in South Africa ([72] FTD). Equally, the connected findings from [65] – [72] FTD would also appear to be preserved.
d. That the best interests of the Appellant’s children are for the status quo of no contact to be maintained ([75] FTD)
e. There is no causal link between the Appellant’s risk of self-harm or suicide and the act of removal ([42] FTD) and that removal would not breach Article 3 on Medical Grounds ([46] FTD)
f. That the Appellant cannot meet either of the outlined exceptions to deportation as per 117C (3) – (5) ([21] ED – see also [59] and [61] of the FTD)
g. That, if in view of his circumstances alone, the Appellant is unlikely to succeed in his appeal ([22] ED)
h. That Mrs Esterhuizen would not, in reality, return to South Africa to be with her son ([87] FTD) but that this is due to a fear which is not objectively well-founded, and that if she wished she could return to South Africa with the Appellant ([86 – 87] FTD).

9. As it is not made out the Appellant is able to satisfy any of the Exceptions to be found in section 117 C (4) or (5) the issue we are considering is whether there are very compelling circumstances in this case over and above those described in the Exceptions sufficient to cause the decision to deport to amount to a disproportionate interference with a right(s) protected by Article 8 ECHR.
10. Those rights are the Appellant’s private life in the UK together as the family life recognised by Article 8 it has been found he has with his mother, and hers with him.
Discussion and analysis
11. The Appellant makes reference to a difficult upbringing in South Africa where he was bullied and physically assaulted in a number of occasions, and other difficulties experienced by the family, but Appellant has been in the UK since aged 18 and will be returned as an adult with insufficient evidence he will be subjected to ill-treatment or harm sufficient to outweigh the strong public interest on that basis. In making these findings we accept that returning him to South Africa will result in difficulties for him but we find it is not made out that any such difficulties will be insurmountable such as to outweigh the public interest.
12. The Appellant attended school in the UK and has worked, his most recent position being as a chef where he was employed from 2016 until being sentenced in 2021. It was not made out, despite his claiming otherwise, that he will not be able to secure employment on return to South Africa as a chef, in the hospitality industry where he has worked in the past, or otherwise. The Appellant clearly has a good work ethic.
13. The Appellant has two young children aged five and seven but, as noted above, he has no contact with them.
14. The Sentencing Remarks refer to the Appellant’s relationship history with the victim of the rape who the Appellant met sometime in 2016 when he was about 21 years of age. The relationship broke down after she fell pregnant with their daughter and the victim told the Appellant that she did not want to be with him anymore. The Appellant wished to revive the relationship although the victim was far less certain about it but they appeared to get on well as a result of which the Appellant suggested they meet up and go out for an evening with friends. They did meet up. The subsequent events are summarised by the sentencing judge as follows:
“….that you behave quite appallingly that evening. You were disparaging about the way she looked, you were jealous that another man might find her attractive, and, worse, that she might be interested in them. You became very drunk, belligerent and angry towards her.
You and she were dropped off at your home where you were to spend the night, so that she could take the baby back to her is the next day. [Person A1] had not and enjoyed the night, and she went straight to sleep. You got into bed beside her and started to pull her. You wanted sex and she did not. You were disinhibited by alcohol, angry with her and sexually frustrated, and you decided that you would have sex with her, whether she wanted it or not. She made perfectly clear her refusal, she tried to push you off, but you overpowered her. You raped her three times, vaginally, anally, and then vaginally, until you ejaculated. She lay in your bed afterwards in distress. The next morning you tried to pretend that nothing had happened. A few days later you paid for her to take the morning after pill.”
15. The sentencing judge records that the victim took a week to have the courage to report the matter to the police and that when the Appellant was interviewed he claimed no intercourse had taken place in relation to which the sentencing judge stated “a frankly, ludicrous defence, in light of the morning after pill - which he maintained at trial, which was rejected by the jury”.
16. The most up-to-date report we have is the OASys report dated 29 October 2021 although we have further correspondence from the Appellant’s Probation Officer which we shall refer to below.
17. Those identified as being at risk in the OASys report are said to be:

1) Public – this specifically relates to future intimate partners with whom Mr Esterhuizen may feel entitled to a sexual relationship with. There is currently no evidence to suggest he poses a risk to public outside of that context, as he has no convictions for assault against strangers. However, the extent of Mr Esterhuzen’s sexual preoccupation or thoughts around entitlement have not yet been fully explored with him and this risk area may need to be updated in the future if further concerns come to light.
2) Known adult - namely the victim [Person A1] and current partner [CW].
3) Children - to his own children, GE (female age 3) and BE (male aged 1) if he were to re-establish relationships with their mothers and any children of future intimate partners.
4) Himself.

18. The nature of the risk in respect of each of those groups is identified as being:

1) Risk is of unwanted sexual contact, including vagina and anal rape, with the impact being at a physical injury caused by this and the likely emotional and psychological impact of an offence of this nature. As well as the impact of coercive and controlling behaviours within a relationship which could result in increased vulnerability and emotional damage.
2) Risk to victim of re-victimisation and trauma caused by attempts to contact her due to Mr Esterhuizen continuing to express the view that she is lying and his desire to discredit her.
3) Risk would be of what children may witness within the context of Mr Esterhuizen’s relationship with their mother. Therefore the risk is of psychological and emotional damage caused by witnessing domestic arguments and abuse, including rape. In the context of the index offence, Mr Esterhuizen’s baby daughter was in the house at the time being cared for by his parents, however, CPS documents indicate arguments and the allegation of violence and controlling behaviour when the victim was pregnant and in front of the couple’s baby daughter after she was born.
4) Risk of self-harm, by overdose, coating or other means, with possible escalation attempts at suicide to which the result could be loss of life.

19. In relation to when the risk is likely to be greatest, in the community, it is written:

1) Risk to future partners will be greatest when Mr Esterhuizen forms an intimate relationship with a female, risk will be highlighted if that female is particularly vulnerable, decreasing the likelihood that she will seek help or report abuse. Risk will be greatest if Mr Esterhuizen displays attitudes of male privilege which include feelings of entitlement in relation to sex. Given the nature of the relationship with the victim, it could be concluded said risk will be greatest if Mr Esterhuizen was in a relationship that appeared unstable, however, instability could just be as perceived by Mr Esterhuizen if he were to become jealous or his partner did not behave in a manner he approved of. Risk of rape is likely to increase if Mr Esterhuizen is drinking alcohol leading to a lack of awareness of his own behaviours. Risk of these kind of behaviours occurring might be highlighted in periods where Mr Esterhuizen is struggling emotionally, however, not enough is known about the triggers to the index offence to state this conclusively. I would not assess risk to the public to be imminent on release as Mr Esterhuizen has no known intimate partner.
2) Risk to the victim would likely increase if Mr Esterhuizen’s grievance thinking about her escalates and he seeks to make contact. Risk may also increase if Mr Esterhuizen seeks to contact his daughter without going through the appropriate legal means. Due to the licence restrictions that will be in place and Mr Esterhuizen’s likely fear of the consequences of breaching them, I would not assess this risk to be imminent on release. However, risk will remain until tested, particularly considering the previous breach of non-molestation order. I would not assess risk to his current partner to be imminent on release is currently there are no known concerns linked to this relationship, however, if Mr Esterhuizen does not address the issues which led to the index offence, i.e. he begins to behave in a controlling manner in that relationship or partakes in binge drinking, the risk could increase rapidly.
3) Risk will be greatest if he were to be in a relationship where children were present, there could be concern related to what those children may witness in relation to behaviour against their mother or threats made to them or involving them in order to control their mother. He currently has no contact with his own children and it is not known that his current partner has any children, so the risk is not thought to be imminent on release.
4) Mr Esterhuizen is likely to be less of a risk to himself in the community and the risk would not be imminent on any release to the UK. If he is deported following release, risk will likely increase as Mr Esterhuizen has made several comments insinuating he may well end his life if he is sent back to South Africa.

20. Risk to children in the community is said to be medium which means there are identifiable indicators of risk of serious harm and that the offender has the potential but he is unlikely to do so unless there is a change of circumstances.
21. In relation to the public and known adults risk in the community is said to be high meaning there are identified indicators of risk of serious harm, that the potential event could happen, and that the impact would be serious.
22. The Appellant was asked during the oral evidence a number of questions about his offending behaviour. We formed the impression that the Appellant was repeating, almost as a mantra, that he was a changed person, that he had found religion, he was not as he was before, and did not drink, none of which was convincing. He demonstrated no understanding in particular as why he behaved as he did in the past and what he had done to alleviate the risk of his doing so in the future. Indeed when the Appellant was asked why he had raped his victim his response was to say he did not want reminding about that rather than providing any explanation. The comments in the OASys report about failure of the Appellant to address issues which led to the index offence is a situation that still exists. The superficiality of the Appellant’s answers mean we are not satisfied the Appellant has established that despite the passage of time, his claim not to be drinking, and to have changed, that he has dealt with the underlying aspect of his personality/attitudes that led to his offending, as identified in the OASys report. We did ask ourselves whether the manner in which the Appellant gave his evidence could have been attributed to some other factor such as his mental health but we were not persuaded it was. We instead considered the evidence showed a lack of remorse, lack of insight and also effort to understand and address the root of the offending.
23. In making that finding we accept the Appellant has been involved with the Probation Service and have taken into account the two letters from them dated 6 February 2025 on 18 June 2025. The first of these letters, addressed to the Appellant’s solicitors, provides a summary of the Appellant’s compliance and progress with prison and probation since sentencing. The letter states there were no concerns raised regarding the Appellant’s behaviour or conduct while in custody and that he had continued to display a positive level of engagement since release and developed a strong working relationship with probation and adhered to all licence conditions placed upon him.
24. Compliance with licence conditions did not allay our concerns. It is not surprising that the Appellant would be compliant with these. The Appellant is well aware that if he breached any terms of the licence or acted in a manner that gave rise to concerns there is a real risk he will be recalled to prison to complete his sentence in custody. The OASys report refers to “Mr Esterhuizen’s likely fear of the consequences of breaching them” when referring to his licence conditions.
25. The more recent letter dated 18 June 2025 confirms the Appellant was transferred to Barnsley Probation in November 2024 which reflects the fact that a previous relationship that he had with CW has ended and when he moved in with his mother.
26. The letter states that in addition to actively participating in the Maps for Change Toolkit which is a structured set of exercises used to support adult men, particularly those convicted of sexual offences, and strengthening protective factors associated with desistance from crime, the Appellant has been referred to The Growth Company for personal well-being support. Although the letter refers to no concerns regarding a breach of the terms of his probation and engaging well with professionals involved in his supervision, we have attached limited weight to the letter. This is because there is no assessment in the letter of the degree of success of any such involvement, no reassessment of the risk as being any different to that outlined in the OASys report, and it does not allay the concerns we have in relation to the risk posed by the Appellant and his lack of empathy, concern, or even understanding for his victim, as demonstrated in his written and oral evidence.
27. The reports make reference to the Appellant’s mental health. We have taken all the evidence relating to this issue into account which includes, inter alia, a letter from the NHS Essex Partnership University dated 7 November 2017, a report from the In-reach Team at HMP Maidstone dated 2 September 2024, a report from Sarah Fairweather dated 8 April 2021 which appears to be the pre-sentence report referred to in the sentencing remarks, an updated psychiatric report from Dr Wilson dated 24 November 2024, and a letter from Barnsley Talking Therapies dated 23 June 2025.
28. The diagnosis of mixed anxiety and depressive disorder is not disputed before us. Dr Wilson records that during the interview with the Appellant he was told by the Appellant that he was in a very dark place in his life, being anxious about returning to South Africa, because he believes he will become street homeless and will be killed for being white. Referring to a hearing on 12 February 2025. The Appellant also told Dr Wilson he was worried about his mother who has physical and mental health difficulties and the issue of who would look after her now his father had died.
29. Dr Wilson was asked to undertake an assessment of the Appellant’s mental well-being to determine what support he requires, to comment on whether the support or intervention would be of a specialist nature in order to serve as a bar to deportation, and whether he was able to diagnose any mental health illness that the Appellant suffers and the impact on the quality of his life. In relation to these questions Dr Wilson writes:
9.1.1 Mr Esterhuizen meets criteria for diagnosis of mixed anxiety and depressive disorder (ICD-11 6A73), depression, complex post-traumatic stress disorder (ICD-11 6B42) and prolonged grief disorder (ICD-11 6B42). This has a major impact on his quality of life, which she tried to mitigate through regular gym attendance. Given the severity of symptoms, despite maximum dose of sertraline (an antidepressant), the duration and complexity of trauma, and the risk of self-harm, this requires assessment and treatment by local community mental health resources.
9.1.2 I would also recommend that he undergoes and MRI brain to exclude organic causes of mental illness given the history of ‘brain infection’ and likely seizures when he was 7.
9.2 The United States Department (USSD) Overseas Security Advisory Council (USSD OSAC) South Africa 2020 Crime & Safety Report stated:
a. “The private healthcare sector in South Africa, ranks amongst the best in the world”. However, resources are lacking in the public sectors, such as availability of psychiatrists, medical staff, and medication. Additionally, Country information states the following “South Africa’s Constitution guarantees every citizen access to health services (section 27 of the Bill of Rights). However, everyone can access both public and private health services, with access to private health services depending on individual’s ability to pay.
b. Although there is no specific right to help in the European Convention on Human Rights, a wide range of issues relating to health relating to health have been dealt with by the European Court. The court’s case law requires states to safeguard people’s mental and physical well-being in many different circumstances. This includes making sure that people can access the healthcare they need, and they can get justice when mistakes are made.
c. Is there a risk that deportation would cause the UK to be in breach of safeguarding our client’s mental health? Can the risk be mitigated by someone who would not have access to private healthcare? Please comment upon whether Mr Esterhuizen’s treatment for any mental health condition could cause significant harm should he be returned to SA.
9.3 I am not an expert in law, but in my layperson opinion, if there is no mental health care provision in South Africa, then Mr Esterhuizen’s mental health would definitely be at increased risk.
9.4 if this was not available in South Africa, there is a high risk of deterioration and increased risk of self-harm.
30. Dr Wilson was right to record he is not an expert in law and nor a country expert. The appeal was not put to us on the basis of an AM (Zimbabwe), Article 3 ECHR medical claim and it is a preserved finding that there is no causal link between the Appellant’s risk of self-harm or suicide and the act of removal ([42] FTD) and that removal would not breach Article 3 on Medical Grounds ([46] FTD).
31. The country material shows that there is a functioning health service within South Africa. We accepted it is not as good as that in the United Kingdom in the public sector, but the Appellant already has a diagnosis as to his mental health needs and treatment.
32. We accept there may be an emotional reaction if the Appellant is deported but it is not made out that his mental health needs cannot be adequately met by the services available to him in the United Kingdom up to and including the removal process. It is not made out that he will not be able to take sufficient medication with him to enable him to make the necessary contacts for ongoing treatment, or that he will not be able to gain access to the public health services which has not been shown to be insufficient to meet his needs while he re-establishes himself in South Africa, and beyond.
33. We accept, there are preserved findings at [65 – 72] of the decision of the First-tier Tribunal in the following terms:
65. I accept that the appellant would face some obstacles to integration in South Africa. I find that given he left when he was 18, it is likely that the appellant has an understanding of how life in society operates and would be regarded as enough of an insider to be accepted there. I have considered his background of bullying as a child, but the appellant is 29 years old now and would not be susceptible to bullying in the same way as a child would be.
66. I accept the appellant’s evidence that he has no family in South Africa. His only sister lives in New Zealand and his mother is in the United Kingdom. There was no evidence that the appellant has any other social ties in South Africa in the form of friends with whom he has kept in contact.
67. I find that his subjective fear and his poor mental health are reasonably likely to have a negative impact on his ability to form the ties that will give substance to his family and private life within a reasonable timescale. The appellant was able to form ties in the United Kingdom, but I note that this was in an environment where he felt safe and at a time when he remained living as part of a family unit with both of his parents. This will not be the situation on return. The evidence shows that when the appellant is suffering from low mood and heightened anxiety, he isolates himself and withdraws. This will have a material impact on his ability to make friends and form relationships.
68. There was no evidence that the appellant has any financial means of his own. He worked prior to going to prison, but he has not worked since his release. His mother is in receipt of Universal Credit and it does not appear that she has any financial resources. I note that in her oral evidence she stated that her daughter in New Zealand sends her funds to help her. I find on the balance of probabilities that the appellant’s mother would not be able to assist the appellant financially on return. There is no evidence that the appellant’s sister would be able or willing to support him financially.
69. The appellant was able to work prior to his conviction, at a time when he was suffering from anxiety and depression. The appellant stated more than once that he worked in unskilled jobs, but this is not entirely true. The appellant worked as chef for three years which is not an unskilled job. The appellant referred to the high youth unemployment rate in South Africa, but he has worked in various positions in the hospitality industry and has skills which are transferrable. I find that it is likely that the appellant would be able to find work in South Africa. I find however that it is likely to take some time, particularly in light of his complete lack of social ties. He would have no one to support him and help him by introducing him to their social network and contacts. The appellant has skills which make him employable, but he would be competing with those who have recent experience in South Africa.
70. I take judicial notice that that the appellant may be eligible for some financial assistance on return pursuant to the facilitated returns scheme. Given that he will have no source of other financial support, no accommodation, no employment and no other social support from anyone who could assist him in finding accommodation or work on return, any funds he receives will be his sole financial support. It is reasonably foreseeable that if he is not destitute on return, he will be within a relatively short period.
71. Having considered all of the appellant’s circumstances, I find that he would face very significant obstacles to his integration in South Africa.
72. I have found that the appellant is socially and culturally integrated in the United Kingdom and that he would face very significant obstacles to integration in South Africa. His private life was established when he was here lawfully, but his presence in the United Kingdom has always been precarious because he has never been granted indefinite leave to remain. Accordingly, I am required to give little weight to his private life, but that does not mean no weight and I give it a little weight.
34. The First-tier Tribunal at [77] also found that the Appellant’s mental health was not a factor that made his deportation unlawful although it was a factor to which weight could be attached, we agree.
35. Ms Bustani opened her own submissions by accepting that the Appellant had a weak case in his own regard. That is an appropriate professional observation based on the evidence.
36. The Appellant’s case is built primarily upon the situation of his mother which we have to take into account in accordance with the guidance from the House of Lords in Beoku-Betts v Secretary of State for the Home Department [2008] UKHL 39.
37. We have considered in detail, inter alia, the Appellant’s mother’s statements and her oral evidence, a psychiatric report of Dr Saleem dated 6 January 2025, and a letter from her counsellor, Terry Smith, dated 29 October 2024.
38. The letter from Terry Smith states the Appellant’s mother had been coming to see him on a weekly basis to 28 September 2023. He states she presented with extreme anxiety believed to have arisen from past traumas and distress at the loss of her husband and what she believed to be the wrongful imprisonment of her son.
39. On this second issue it was clear that, as a mother, Mrs Esterhuizen found it difficult to accept that her son, the appellant, could have done what he did. Whilst understandable from her perspective, it is of concern for us. If she does not accept what has been found to be the reality she cannot be accepted as a credible preventative element.
40. Mr Smith writes the appellant’s mother has had difficulty in trying to find a way forward and has had suicidal ideation as a result of the situation, severe feelings of loneliness and a worsening physical health and their limitations. She confirmed that the counselling sessions were of benefit to her and that while she was able to attend the same she was able to get out and about, albeit with some difficulty.
41. Mr Smith records that the appellant’s mother was making improvement although ongoing issues regarding her son caused increased levels of stress and anxiety necessitating ongoing therapy. In relation to the consequence of deportation Mr Smith writes “Whilst I cannot be 100% positive of the future and how the client will cope, if the threat of her son being deported would have on her, it would be remiss of me not to point out that the clients has been living on emotional and mental precipice for a very long time and in the event of a son being deported, this could be the last thing to overwhelm her already fractured coping strategies and abilities, coupled with previous statements that without her family she has nothing to live full, or leave me with a very deep concern for her state of mind and ability to carry on”.
42. Dr Saleem, a Consultant General Adult Psychiatrist, having assessed the appellant’s mother’s writes:
86. In my opinion, Elizabeth is suffering from Recurrent Depressive Disorder, current episode moderate, and Panic Disorder. She also has some symptoms suggestive of complex Post Traumatic Stress Disorder (C-PTSD) following repeated traumas in childhood consisting of severe physical abuse from father.
Recurrent Depressive Disorder
87. Recurrent depressive disorder is characterised by a history of at least two depressive episodes separated by at least several months without significant mood disturbance.
88. Depressive Episodes, also known as Major Depression, is characterised by
a. A period of depressed mood or diminished interest in activities occurring most of the day, nearly every day during a period lasting at least two weeks accompanied by other symptoms such as
i. Difficulty concentrating,
ii. feelings of worthlessness or excessive or inappropriate guilt,
iii. hopelessness,
iv. recurring thoughts of death or suicide,
v. changes in appetite or sleep,
vi. psychomotor agitation or retardation, and
vii. reduced energy or fatigue.
89. Elizabeth reports most of the symptoms above. Letter from her counsellor confirms the presence of these symptoms for some time. She was prescribed antidepressant, sertraline by her GP previously but did not find it helpful (I did not have access to full GP records to confirm this).
90. The causes of Elizabeth depression can be divided into predisposing, precipitating and perpetuating factors.
a. Predisposing factors include severe physical abuse as a child, and subsequent PTSD symptoms.
b. Precipitating factors for her current depressive episode are conviction and imprisonment of her son in 2017 and death of her husband in April 2023.
c. Factors that currently perpetuate her depression are (i) ongoing bereavement and grieving for her husband and (ii) potential removal of the sun from the UK.
Panic Disorder
91. According to WHO’s ICD-11: Panic disorder is characterised by recurrent unexpected panic attacks that are not restricted to particular stimuli all situations. Panic attacks are discreet episodes of intense fear or apprehension accompanied by the rapid and concurrent onset of several characteristic symptoms (e.g. palpitations or increased heart rate, sweating, trembling, shortness of breath, chest pain, dizziness or light-headedness, chills, hot flushes, fear of imminent death). In addition, panic disorder about the recurrence of significance of panic attacks, or behaviour intended to avoid their recurrence, results in significant impairment in a personal, family, social, educational, or other important areas of functioning. These symptoms are not a manifestation of another medical condition and are not due to the effects of a substance or medication on the central nervous system.
43. In relation to the question asked by the Appellant’s representatives, whether the care and support of her son would assist her, and if the son is deported what effect that would have on mental health, Dr Saleem writes that as long as the current situation of uncertainty around her son’s status in the UK remains, her depression is likely to remain serious and may deteriorate further.
44. Available treatments for depression were identified as including medical treatment (antidepressant/mood stabilisers), and psychological treatment including talking therapy, as well as support from occupational therapy to develop meaningful educational vocational interests, and social worker to help develop social support and address housing/income needs.
45. At [96 – 99] Dr Saleem writes:
96. If the son were to be deported from the UK, in my opinion, it is very likely that Elizabeth depression would get even worse, and there is a significant risk of suicidal thoughts and completed suicide.
97. It is likely that her depression would become severe, and she may develop psychosis (loss of contact with reality) and/or fall into a depressive stupor (complete physical and mental shutdown), both of which can occur with severe depression. Patients can stop eating altogether, leading to life-threatening malnutrition.
98. Even if Elizabeth were to receive appropriate treatment for her depression, in my opinion, the main factor helping her as the supporting company of her son. Social support is well recognised a significant part of treatment for clinical depression and, conversely, lack of social support and loneliness is a major cause of mental disorder.
99. In the absence of a social support, in my opinion, medications and talking therapies would be of limited efficacy in alleviating her symptoms.
46. During the course of giving her evidence Judge Pickering asked the appellant’s mother on a practical level, in relation to shopping feeding etc, who did such things prior to the time her son returned to live with her, to which she stated that she had been trying to find help and that no one had provided assistance.
47. Judge Pickering asked the appellant’s mother whether she was saying that when she had counselling she was able to do these things, which she confirmed was the case.
48. To ensure there was no misunderstanding, Judge Pickering asked the appellant’s mother whether her case was that there was nobody helping her during this period and that she did these things herself but with difficulty, which she confirmed was what she was saying.
49. The significance of these questions is that this relates to a period after the Appellant’s mother’s husband had died, when she was effectively coping during a period of intense grief, showing that she has the ability to undertake such tasks albeit we accept it would have been a very difficult time for her.
50. Also, in her submissions Ms Bustani accepted the Appellant has been convicted of a serious offence and the public interest in the removal of foreign criminals. Although reference was made to limited extracts from the sentencing remarks and what may or may not have been in the mind of the Crown Court Judge at that time, we have no reason to go behind the Appellant’s conviction, after trial, and his sentence.
51. The fact the offence took place in October 2017, that the Appellant was at liberty until April 2021 and has been since 2024 when he was released on licence is noted but is not determinative if this is being advanced as an argument as to rehabilitation. We note it as one of many factors.
52. Ms Bustani accepted that whilst there is no up-to-date assessment of the risk of reoffending the comments by the sentencing judge and the Appellant’s probation officer reflect very compelling circumstances in mitigation, as does the fact the Appellant is actively engaging with his licence condition. There is also reference to the fact the Appellant had been in two relationships since the offence with no incidents of violence. It is not surprising bearing in mind the Appellant should not engage in such conduct in a relationship and was subject of criminal proceedings including a forthcoming Crown Court trial for rape. We are pleased to note that the women in the two relationships were not victims of serious sexual violence in the same way as the Appellant’s earlier partner but it is not a factor that has allayed our concerns.
53. We do not accept that the matters submitted as amounting to very compelling circumstances over and above the exceptions in mitigation come remotely near this fact. The Secretary of State is entitled to take the view that a normal law-abiding individual will not reoffend and the Appellant has very strong reasons for actively engaging with the probation service as noted above.
54. Whilst it is claimed the Appellant enjoys a substantial private life in the United Kingdom and it has been found that family life exist with his mother, and that his mother suffers from mental health issues and other health issues, together with the Appellant’s evidence regarding the fact he left South Africa in 2014 and he himself had an unhappy childhood, such fall to be considered as part of the Appellant’s case when assessing the balancing exercise at this stage but are not, in isolation, determinative.
55. We accept the Appellant’s mother is a British citizen by ancestry with no links to South Africa but the First-tier Tribunal judge found that she could go to South Africa on an objective assessment but subjectively had chosen not to.
56. The Secretary of State, in addition to the case law referred to in the error of law finding, refers to the recent decision from the Court of Appeal in Kapikanya v Secretary States the Home Department [2025] EWCA Civ 987, and in particular [42] – [43] in which Lord Justice Bean stated:
42. I have already noted that NA (Pakistan) makes it clear that it is possible for very compelling circumstances to be found notwithstanding that the Appellant cannot satisfy either Exception 1 or Exception 2. But that does not give the FTT a general licence to bypass Exception 1 and Exception 2 and go straight to considering very compelling circumstances. To do so would be to undermine the clear parliamentary intent and to deprive the phrase "over and above" those described in Exceptions 1 and 2 of much if not all of its meaning. Particularly in the case of a serious offender, the circumstances of a case where Exceptions 1 and 2 can simply be bypassed must in my view be wholly exceptional, as in the hypothetical example involving a deportee with sole caring responsibilities for an 18-year-old child with Down's Syndrome which I gave in paragraph 27 above. It is not, and could not be, suggested that the present case is of this kind.
43. The judgment of Underhill LJ in Yalcin demonstrates that in order to satisfy s 117(C)(6) "something more" is required than under Exception 1 or Exception 2. Underhill LJ envisages two types of case. The first is where deportation would have what in a convenient shorthand phrase he describes as an "unduly unduly harsh effect" on a qualified child or partner. The second is where the appellant can point to the combination of an unduly harsh effect on a qualifying child or partner and some other factor amounting to very compelling circumstances. Underhill LJ emphasises that a serious offender will have to surmount a higher threshold than a medium offender.
57. It is not disputed the Appellant is a serious offender nor that there are no qualifying children or qualifying partner.
58. Miss Blackburn submitted that it was notable that neither section 117 C nor the Rules specifically referred to a relationship such as that which exists between the Appellant and his mother as being worthy of an inclusion in the exceptions, and that if it were Parliament’s intention for relationships with non-qualifying individuals to serve as a specific barrier to deportation, Parliament would have said so in the statute. We accept this submission.
59. The majority of the case law discusses the situation where there is a qualifying individual and the application of the exceptions. However, we still have to undertake the necessary Article 8 ECHR assessment as the law currently stands.
60. We have already referred to the considerable volume of evidence provided in support of the Appellant’s case which stands on his side the balancing exercise. We now move on to consider the Secretary of State’s position and those matters on which she asks us to give proper consideration, that it is submitted outweighs the appellants.
61. The first point is obviously the fact the Appellant is a serious offender who has failed to provide sufficient evidence that he is rehabilitated and in relation to whom the evidence shows he continues to present a high risk of reoffending of harm to known adults and the public and a medium risk of harm to children in situations identified in the OASys report.
62. Section 117C(6) states that the public interest will require the Appellant’s deportation unless there are very compelling circumstances over and above those in the exceptions to be found at section 117C (3) –(5).
63. Reference is made to the Appellant’s recent witness statement dated 24 July 2025 in which there is still an absence by the Appellant of any attempt to accept his guilt or take responsibility for his offending. We do not find, as noted above, that he believes he did anything wrong, preferring to ‘blank out’ what occurred in the past and only to look at what he sees as his future. There is, as we have commented above, a complete lack of empathy for the victim. In relation to this Miss Blackburn writes at [16] of her skeleton argument: “he refers to work with probation and rehabilitation work at [6] –[7], but the Respondent would point out that these sections are carefully worded. He does not accept guilt, and even the sessions referred to are absent any scene which addresses the fact that he is a perpetrator of sexual violence.” We agree.
64. It was submitted that the strong implication is that whilst the Appellant is claiming he had seen the error in his past life he did not specify what that meant, and focusing on knowing who to trust and his own reintegration is evidence that the Appellant is likely to still maintain the position that he was falsely accused, and selectively referred to his work with probation without ever discussing his actual offending in order to try to demonstrate rehabilitation is for the purposes of his appeal and not for genuine reasons. As noted above, when we asked the Appellant why he had raped his previous partner he was unable to provide any explanation, show any remorse, contrition, or any understanding of the harm he had caused to that individual.
65. The Appellant’s mother in her most recent witness statement does not address rehabilitation although it is referred to in her earlier witness statement of 20 January 2025 without expressing acceptance of the Appellant’s guilt. Miss Blackburn referred to specific phrase that the appellant’s mother would not defend him ‘if he has done wrong’ when clearly the fact he has been convicted by a jury after trial shows that he has done wrong by committing a very serious act of gratuitous sexual violence. In this context we refer to [47] of Dr Saleem’s report recording the appellant’s mother’s belief that her son was falsely accused. We do not find that weight can be placed upon the claim that the Appellant’s mother will be a protective factor, as for her to make progress in this regard they would both have to accept his guilt, identify the reasons for the same, and the Appellant would then have to undertake focused work and assessment of the type envisaged in the OASys report.
66. We find there is nothing in the evidence when considered as a whole to warrant departing from the preserved findings on seriousness, risk and rehabilitation.
67. When considering matters over and above the exceptions to deportation the starting point has to be considered why the exceptions have not been satisfied. We find no reason to go behind the preserved findings the First-tier Tribunal that the Appellant cannot meet either of the exceptions to deportation for the reasons given. Miss Blackburn refers in her skeleton argument to the fact that although the First-tier tribunal was satisfied the Appellant would face very significant obstacles to integration he was unable to meet the private life exception because he had not lawfully resided in the United Kingdom for the requisite period envisaged by the statute.
68. There is reference in the evidence to the situation in South Africa but that is the situation that applies to every individual in that country and there is insufficient evidence to enable us to find the Appellant on return will be singled out or face harm sufficient to make return unlawful. Miss Blackburn refers to certain aspects in the evidence that was introduced late for which no corroborative evidence has been provided.
69. In her submissions Ms Bustani also sought to distinguish the decision of the Court of Appeal in Ribeli v An Entry Clearance Officer (Pretoria) [2018] EWCA Civ 611 which is referred to at [28] of the error of law finding. We do not accept this case can be distinguish to the extent claimed, such that we place no weight upon it, as there is still no evidence provided to show Appellant’s mother could not re-avail herself of her South African citizenship and return there to live with her son, the Appellant, if she so wished.
70. We find there is merit in the submission that even if the consequences of the Appellant’s deportation upon his mother is severe that has to be balanced against the fact that it is the Appellant’s mother’s choice not to leave the UK to be with her son despite there being no rationally objective obstacle preventing her from doing so. This factor therefore does not, when assessed objectively, meet the high threshold of very compelling circumstances in accordance with the guidance provided by the case law.
71. We also note the submission that it is now claimed the Appellant’s mother requires full-time care. We accept that she has been signed off from work from March 2025 and that the Appellant does provide her with some support as per the preserved findings. Although the Appellant’s mother claims to require full-time care which her son provides to the extent suggested in witness statements, Miss Blackburn submitted there was no evidence the Appellant receives or has applied for any carers allowance, no kind of social service evidence to this effect, and that none of the medical report substantively go towards this issue either. That is a fair submission.
72. Therefore, if the Appellant’s mother does need the degree of care she claims and wishes to stay in United Kingdom, as a British citizen she will be entitled to care from the local authority or NHS in the UK. The reason she claims that she has not sought this is personal choice preferring to be cared for by family member but, even if that is so, it is not made out that outweighs the clear public interest in deportation on the facts of this appeal.
73. Dr Saleem refers to the impact of the Appellants deportation and severe consequences for his mother but it is not made out her GP or social services could not be made aware of any impending deportation and, use the powers they have available to them in statute if her mental health deteriorated to the extent that she became a danger to herself. It is not made out there are not sufficient resources available in the NHS in the UK to deal with any suicidal ideation or concerns of general deterioration in the Appellant’s mother’s mental health during the period leading up to his removal, during the removal process, and whilst he established himself in South Africa.
74. Having sat back and assessed the evidence as a whole, whilst giving proper weight to the issues relied upon by the Appellant and weighing those against the points in favour of the Secretary of State, we find the Appellant has failed to establish the existence of very compelling circumstances as per section 117C(6) Nationality, Immigration Asylum Act 2002, and that the Secretary of State has discharged the burden upon her to the required standard to show that the deportation of the Appellant is proportionate to any interference with the identified protected rights. As Miss Blackburn put it when considering the situation of the Appellant’s mother: “her preference to be cared for by a family member rather than a stranger should not, on a proper reading of the case law, be permitted to outweigh the clear public interest in deporting an unapologetic convicted rapist who received a sentence of over six years”.
Notice of Decision
75. Appeal dismissed.

C J Hanson

Judge of the Upper Tribunal
Immigration and Asylum Chamber


27 August 2025




Annex A – Error of law finding



IN THE UPPER TRIBUNAL
IMMIGRATION AND ASYLUM CHAMBER
Case No: UI-2025-001896

First-tier Tribunal No: HU/00213/2024

THE IMMIGRATION ACTS
Decision & Reasons Issued:

…………………………………

Before

UPPER TRIBUNAL JUDGE HANSON

Between

SECRETARY OF STATE FOR THE HOME DEPARTMENT
Appellant
and

HEINE BERNARD ESTERHUIZEN
(NO ANONYMITY ORDER MADE)
Respondent

Representation:
For the Appellant: Mr R Evans, instructed by the Government Legal Department
For the Respondent: Mr Kerr instructed by Lam & Meerabux Solicitors.

Heard at Phoenix House (Bradford) on 27 June 2025


DECISION AND REASONS
1. The Secretary of State appeals with permission a decision of a judge of the First-tier Tribunal (‘the Judge’) who allowed Mr Esterhuizen’s appeal against refusal of his human rights claim relied upon as an exception to the decision to deport him from the United Kingdom.
2. Mr Esterhuizen is a citizen of South Africa born on 8 May 1985 who entered the United Kingdom on 19 January 2014, lawfully, with entry clearance to join his parents, valid to 14 April 2018. He was 18 years of age at that time.
3. On 15 April 2018 Mr Esterhuizen made an application for indefinite leave to remain based on his UK Ancestry.
4. Mr Esterhuizen is subject to an order to his deportation from the United Kingdom following his conviction on 26 April 2021 of three counts of rape of a woman aged 16 years or over and the breach of a non-molestation order, for which he was sentenced to 6 years and 9 months imprisonment.
5. The Judge records attempts made by Mr Esterhuizen to appeal against his conviction which was dismissed by the Court of Appeal on 24 May 2022, and submissions made to the Criminal Case Review Commission on 7 August 2023, which they refused to accept on 2 July 2024.
6. Further representations made by Mr Esterhuizen in support of his attempts to avoid deportation were refused on 12 December 2023.
7. Having considered the documentary and oral evidence the Judge sets out findings of fact from [24] of the decision under challenge. In that paragraph the Judge identifies the two relevant issues requiring determination as being:

i. Would Mr Esterhuizen’s removal breach his rights pursuant to article 3 ECHR on medical grounds?
ii. Are Mr Esterhuizen’s circumstances very compelling such that the public interest in deportation is outweighed.

8. The Judge, for the reasons given between [25] – [46], finds that Mr Esterhuizen’s removal will not breach Article 3 ECHR on medical grounds. That relates to both physical mental health issues as determined by the Judge.
9. In relation to the second issue the Judge makes a number of findings which can be summarised in the following terms:

i. Mr Esterhuizen must demonstrate his circumstances are very compelling over and above the exceptions to deportation in order for the public interest in deportation to be outweighed [47].
ii. Mr Esterhuizen enjoys private life in the United Kingdom and family life in United Kingdom with his mother which goes beyond the normal emotional ties between an adult child and a parent. There is a sufficient degree of mutual emotional dependence between them and Mr Esterhuizen is a real, effective and committed support to his mother who has both physical and mental health issues [48].
iii. The Secretary of State’s decision causes an interference with a protected right sufficient to engage Article 8(1) ECHR [49]. The issue is the proportionality of the Secretary of State’s decision.
iv. The public interest in deportation carries significant weight [53].
v. The sentence of 6 years and 9 months was the least the sentencing judge could pass having taken into account what are described as ‘very considerable mitigating features’. The length of sentence, notwithstanding considerable mitigation, reflects the seriousness of the offences. That fact carries considerable weight [54].
vi. Mr Esterhuizen continues to deny his guilt and has expressed no remorse. There is no evidence he has undertaken any rehabilitation work linked to his offending. The risk of contact sexual reoffending was stated to be high in the OASys report. The risk of serious harm posed by Mr Esterhuizen to children in the community is stated to be medium, to the public and a known adult in the community it is said to be high. The high risk means there are identifiable indicators of risk of serious harm that the potential event could happen at any time and the impact will be serious [55].
vii. The letter from the probation officer dated 6 February 2025 recording no concerns regarding Mr Esterhuizen’s behaviour whilst he was in custody, that he had achieved enhanced status, displayed a positive level of engagement since release, and adhered to all licence conditions placed upon him, was no more than what was expected of him warranting little weight being attached to these facts [56].
viii. The Judge specifically refers to the fact that Mr Esterhuizen was on bail for 3 ½ years and did not offend again during that period. That was no more than was expected of him. The Judge acknowledges that Mr Esterhuizen entered into two further relationships in connection with which no concerns have been expressed [57].
ix. The letter from the Probation Service is silent as to whether Mr Esterhuizen’s risk of contact sexual reoffending and/or serious harm has reduced since the OASys report was prepared which the Judge finds to be a significant omission. Leading to a finding there was no basis on which the Judge could reasonably find such risk is reduced, as if it had the Probation Officer would have mentioned it. This fact is said to carry significant weight [58].
x. Mr Esterhuizen cannot satisfy the family life exception to deportation as he does not have a partner and, although he has two children in the United Kingdom, he did not rely on his relationship with them save to the extent he is involved in Family Court proceedings to re-establish contact with them. The Judge records Mr Esterhuizen stating he had not had contact with his daughter since 2017 or with his son since 2021. The Judge was not satisfied Mr Esterhuizen had a current genuine subsisting parental relationship with his children [59].
xi. Mr Esterhuizen has not lived in the United Kingdom lawfully for most of his life and cannot satisfy the private life exception to deportation as he needed to satisfy all three elements and could not do so [61]. Although it was accepted there was evidence to support his employment, it was not accepted he was financially independent [61].
xii. The Secretary of State does not accept Mr Esterhuizen is socially and culturally integrated into the United Kingdom on the balance of probabilities, for the reasons set out at [62], although the Judge finds he is [63].
xiii. Mr Esterhuizen was released from prison on 9 September 2024. He maintained contact with his mother whilst he was in prison and also with his partner, albeit that the relationship eventually ended. The Judge finds the period of imprisonment was not sufficient to break Mr Esterhuizen’s integrative links [64].
xiv. Mr Esterhuizen will face some obstacles to integration in South Africa but he will understand how society operates and will be regarded as enough of an insider to be accepted that. He would not be susceptible to bullying as a 29 year old adult as he was as a child [65].
xv. There is no evidence Mr Esterhuizen has any social ties in South Africa in the form of friends with whom he had kept in contact. His sister lives in New Zealand and his mother in the United Kingdom [66].
xvi. Mr Esterhuizen’s subjective fear and poor mental health are reasonably likely to have a negative impact on his ability to form ties that will give substance to his family and private life within a reasonable timescale. The evidence indicates that when Mr Esterhuizen is suffering from low mood and heightened anxiety he isolates himself this and withdraws which will have a material impact on his ability to make friends and form relationships [67].
xvii. There was no evidence Mr Esterhuizen has any financial means of his own. His mother is on Universal Credit without the financial resources. Mr Esterhuizen’s sister in New Zealand and sends funds to help their mother. The Judge finds on the balance of probabilities that Mr Esterhuizen’s mother would not be able to assist him financially on return and nor was there evidence that his sister will be willing or able to support him financially [68].
xviii. Mr Esterhuizen worked prior to his conviction when he was suffering anxiety and depression. His claim, made more than once, that he worked in unskilled jobs was found by the Judge to be not entirely true. The Judge finds Mr Esterhuizen will be able to find work in South Africa although it may take time. He has skills which makes him employable although he would be competing with those who have recent experience in South Africa [69].
xix. The Judge takes judicial notice of the fact Mr Esterhuizen may be eligible for some financial assistance on return pursuant to the Facilitator Returns Scheme. It is reasonably foreseeable that whilst he will not be destitute on return he will be within a relatively short period without another source of financial support [70].
xx. Mr Esterhuizen will face very significant obstacles to his integration in South Africa [71].
xxi. The Judge records that for the reasons set out at [72] she was required to give little weight to Mr Esterhuizen’s private life but that did not mean that no weight should be given to it. The Judge gives it a little weight [72].
xxii. The fact Mr Esterhuizen speaks English, has been employed in the past, would obtain employment in the future if permitted and be financially independent, are neutral factors [73].
xxiii. Although Mr Esterhuizen did not seek to rely on his relationship with his children the Judge stated the Tribunal was under a statutory duty to consider their best interests as they are potentially affected by the decision under appeal [74].
xxiv. The Judge received no evidence about the children’s current circumstances. Mr Esterhuizen indicated in his evidence he was not even permitted to know where his daughter is living. Although there are Family Court proceedings the Judge records it not appearing that even indirect contact has been implemented. There are concerns in the OASys report in respect of the risk Mr Esterhuizen poses to children. Unless the Family Court has made a finding in relation to the best interests of the children and made a decision about re-establishing contact, the Judge finds the best interests of the children are for the status quo to be maintained. This is treated as a neutral factor [75].
xxv. Mr Esterhuizen has lived in the United Kingdom for around 10 years and has established a life here [76].
xxvi. Mr Esterhuizen’s mental health was not found to be a factor that makes his deportation unlawful but is a matter to which the Judge attaches some weight [77].
xxvii. The Judge found the oral evidence of Mr Esterhuizen’s mother compelling. The evidence was supported by the report of Dr Saleem a Consultant Psychiatrist, dated 6 January 2025 [78].
xxviii. The Judge notes the evidence of Dr Saleem was not challenged. That Dr Saleem did not have full sight of Mr Esterhuizen’s mother’s medical records although found the weight given to the report should not be reduced, for the reasons set out in [79].
xxix. Dr Saleem finds Mr Esterhuizen’s mother is suffering from a recurrent depressive disorder, current episode moderate, and a panic disorder, some symptoms of complex PTSD linked to childhood trauma but does not make a formal diagnosis of that condition. Reasons are given for the diagnosis with reference to relevant diagnostic criteria [80].
xxx. Mr Esterhuizen’s mother’s evidence was consistent with the account she gave Dr Saleem in particular in relation to the impact of her son’s conviction and imprisonment and other issues highlighted at [81] including her belief she would not be able to continue without her son.
xxxi. There was no evidence Mr Esterhuizen’s had harmed herself or attempted suicide, but she had experienced suicidal ideation. Her son is a protective factor. [82].
xxxii. Dr Saleem expresses concerns about the effect of Mr Esterhuizen’s deportation on his mother [83].
xxxiii. Dr Saleem make specific recommendations about treatment for her condition. The Judge records it was apparent from her evidence she is not receiving the treatment recommended due to her mistrust of medical professionals, which the Judge finds is likely to be a significant barrier to her accessing effective treatment which may contribute to the risks identified by the counsellor and Dr Saleem [84].
xxxiv. The Presenting Officer submitted that Mr Esterhuizen’s mother could access whatever treatment and support she required through the NHS if her son was not here. Dr Saleem considered the point but states that even were Mr Esterhuizen’s mother was to receive appropriate treatment, the main factor helping her was the support of her son and that medication and talking therapy will be of limited efficacy in alleviating the symptoms she has without her only source of social support [85].
xxxv. Mr Esterhuizen’s mother could return to South Africa with him in the event she did not wish to be separated from him. Although when becoming a British citizen she lost her South African citizenship and did not take steps to retain it, there was no evidence before the Judge she could not re-avail herself of her South African citizenship should she choose to do so [86].
xxxvi. The Judge accepts Mr Esterhuizen’s mother’s evidence that she would not contemplate returning to South Africa as she has a significant subjective fear of returning there. The Judge does not find, as with Mr Esterhuizen, that such fear is objectively well-founded, although finds that notwithstanding she would not return there even if her son was removed [87].
xxxvii. If Mr Esterhuizen was removed consequences would be that his mother would be on her own in the United Kingdom. There is a risk her mental health will deteriorate in the event her son is deported. Her son is her only source of support in the United Kingdom. She is socially isolated, particularly following the death of her husband, and her mental health which is not effectively treated, and her finding alternative sources of social support. The Judge accepts evidence about the risk of self-harm and/or suicide [88].
xxxviii. At [89] – [90] the Judge writes:
89. I have considered my decision in this case very carefully. As I have already indicated, complete lack of acceptance of his guilt is something which concerns me and as I have said, I find that there is no evidence that the risks posed by the appellant have reduced. compelling over and above the exceptions to deportation. I have placed particular It is appropriate for me to attach significant weight on this factor because family life is a unitary concept. It is not only the effect of deportation on the appellant that I must consider, but the effect on each family member impacted by the decision. For deportation would be unduly harsh. That, in addition, the other factors to which I have attached weight, all combine to outweigh the significant public interest in deportation by a slim margin.
90. I find that the respondent’s decision is disproportionate and is therefore unlawful pursuant to section 6 of the Human Rights Act 1998.
xxxix. The Judge allowed the appeal on human rights grounds (Article 8 ECHR only).

10. The Secretary of State sought permission to appeal on the following grounds:

Ground 1: erroneous consideration of the “unduly harsh” test

20. The FTT erred in holding that the effect of deportation on the mother would be “unduly harsh”. In particular:

(i) The FTT found that consequences of the mother’s separation from the Respondent would be the “effect” of deportation. This was wrong in law. Properly analysed, the case involves a choice on the part of the mother: whether to remain in the UK or to go to South Africa to be with her son. Any impact on the mother would be the effect of her own choice, not an “effect” of deportation.
(ii) The FTT failed to take into account it’s finding that the mother’s rationale for not wanting to travel to South Africa was unreasonable. Having made that finding FTT needed to explain how it could nevertheless be said that that the effect of deportation would be “unduly harsh”. On the contrary, if and to the extent that the bonds of family life required the mother to be with her Respondent, it would be reasonable for her to join her son in South Africa.
(iii) The FTT’s approach to the mother’s subjective preferences empties Article 8 of its objective content, contrary to the correct approach explained in Cheryl Ribeli v Entry Clearance Officer, Pretoria [2018] EWCA Civ 611. Although that was an entry clearance case, the Court of Appeal emphasised that a person’s subjective preferences, no matter how strong, do not dictate the outcome of an Article 8 analysis. In that case, the Appellant’s daughter (a British citizen, formerly a South African citizen) had subjectively good reasons for not wanting to leave the UK, but that “does not come close” to establishing an Article 8 case requiring the United Kingdom to allow the mother to join her. In this case, if the Respondent is deported there will be objectively good reasons for the mother to join him. The only thing stopping her is her preference to stay in the UK because of an unreasonable fear of crime in South Africa. As in Ribeli, so too in this case: Article 8 cannot be construed in a manner which allows the subjective (and unreasonable) preferences of a family member to dictate where an individual should live. The present facts are, in some respects, even stronger than the facts in Ribeli, because the starting point is a strong public interest in the Respondent’s deportation. The mother’s wish to stay in the UK does not come close to displacing that public interest.

Ground 2: erroneous consideration of “very compelling circumstances” test

21. It should be recalled that before the public interest in deportation could be displaced, the Respondent had to show “very compelling circumstances over and above those described in the two exceptions” (section 117C (6) of the 2002 Act).
22. As to Exception 1 (private life), the Respondent did not (even notionally) qualify because he had not been lawfully resident in the UK for most of his life. He had arrived in the UK in 2014, committed three rapes in 2017 and on 26 April 2021 he was sentenced to six years and nine months’ imprisonment. It is unsurprising that the FTT gave only “a little weight” to this consideration.
23. As to Exception 2 (unduly harsh effect on partner or child), this did not apply either because the Respondent had no qualifying child or partner. To the extent the FTT had considered the effect of deportation on the mother would be “unduly harsh” it erred (see above).
24. Accordingly, all that was left in the balance that might prevent deportation was the Respondent’s private life which the FTT said merited “a little weight” and the Respondent’s mental health which the FTT gave “some weight”. These considerations cannot possibly amount to “very compelling circumstances” to overwhelm the public interest in deporting a convicted rapist. To reach such a conclusion was perverse, that is to say outside the range of reasonable options open to the FTT.

11. Permission to appeal was granted by another judge of the First-tier Tribunal on the basis the Secretary of State’s grounds are said to be arguable given the findings made in the decision as a whole.
12. Mr Esterhuizen, through his representative, opposes the appeal in a Rule 24 response dated the 26 May 2025, the operative part of which reads:

(i) Ground 1: alleged erroneous consideration of the ‘unduly harsh’ test

6. First, whether the mother could and/or return to South Africa was not properly raised as an issue in the FTT. Whilst it was suggested briefly in cross examination that the mother could return to South Africa, the Respondent did not then go on to invite the FTT Judge to consider this issue, nor was it identified as an issue at any other point during or prior to the proceedings (including the Respondent’s decision to deport letter of 12 December 2023). If that is disputed, then a transcript of the FTT hearing should be obtained.

7. Accordingly, it is submitted that the UTT should refuse this ground of appeal, as it was never raised for the judge’s consideration in the FTT (as per Lata [2023] UKUT 00163, (headnote 7-8).

8. Second, the submission that the impact on the mother resulted from her own choice, not the effect of deportation, ignores the fact that the judge found that the mother would not return to South Africa, even if her son was removed (87). It is on this factual basis that she assessed the effect of the Respondents deportation on the mother. At no point has the Appellant sought to impugn this factual finding. Rather than disclose an error of law, this submission is an attempt to relitigate the factual findings of the FTT Judge.

9. Third, even if the issue had been raised by the Appellant, there were compelling reasons to conclude that the mother could not be expected to return to South Africa, including: (i) that she is a British citizen with an established private life in the UK; (ii) the reasonably foreseeable risk of destitution on return (70), (iii) the risk of violence (the FTT Judge accepted at [35] that the levels of violence and crime in South Africa are high); and (iv) her age and severe vulnerabilities, as identified in the expert medical evidence.

10. Fourth: the case of Cheryl Ribeli v Entry Clearance Officer, Pretoria [2018] EWCA Civ 611 concerned entirely different circumstances and does not assist the Respondent:

i. Ribeli, turned on wholly different facts. The daughter had freely decided to leave South Africa (and her mother) to live in the UK. Her evidence indicated that she will be willing to move to South Africa to provide care if necessary [27] of Ribeli; while it would be “extremely distressing” to leave the life she had built up in the UK, she disclosed no fear of returning [66]. In those circumstances, the Court found that the daughter could reasonably be expected to return to South Africa [69]. In this case, it is not due to any choice of the mother that she now faces the possible separation from her son. She has expressed her fear of returning and she says she could not do so. Further, the case can be distinguished for the single reason that the FTT Judge found that the mother would not return to South Africa.

ii. Ribeli concerned an application for entry clearance, and therefore a positive step to be taken by the SSHD in order to reunite the mother with her daughter. The Appellant’s decision in this case forces the mother (a British citizen of good character) to consider whether she could return to South Africa should the Respondent be deported.

iii. In point of contrast with Ribeli, the Court of Appeal in Begum [2000] 11 WLUK 424 had to consider whether it would be a breach of the appellant’s Article 8 rights not to grant entry clearance, in circumstances where the family had, by choice, moved to the UK. The IAT (as it was then) refused the appeal, finding that the family separation had arisen not by necessity but because they had chosen to move to the UK without the appellant (Begum [20]). Allowing the appeal, the Court held at [23] that the Appellant should not be punished for the choices of her family and this could not of itself determine the application against.

(ii) Ground 2: alleged erroneous consideration of the “very compelling circumstances” test

11. The FTT Judges was careful and reasoned. She comprehensively analysed whether “very compelling circumstances” exists in the Respondent’s case. At no point did she fall into error.

12. The FTT Judge rigorously assessed the weight to be applied to the factors against deportation [60 – 89]. She made clear that she placed “particular weight” on the mental health of the Respondent’s mother and her findings at the consequences of the Appellants deportation would be unduly harsh on her [89]. Those findings were made with reference to the mother’s evidence, which the Judge found “compelling” [78] and “highly consistent” with the unchallenged psychiatric evidence of Dr Saleem [82].

13. Accordingly, there is no reasonable basis to assert that the judges decision was flawed, still less that it was perverse.

13. On the basis of the above Mr Esterhuizen’s representatives invited the Upper Tribunal to refuse the Secretary of State’s appeal.
14. The Secretary of State has filed a Rule 25 reply dated 20 June 2025 in response, which reads:

Introduction

1. The Appellant hereby replies to the Respondent’s Rule 24 Response to the appeal, permission having been granted by the First-tier Tribunal (“FTT”) on 24 April 2025.

2. The Upper Tribunal will recall the FTT’s key finding was that if the Respondent was deported to South Africa, his mother would not follow him there, because she held an unreasonable fear of crime in South Africa. The FTT nevertheless concluded that the consequences for the mother of being separated from the Respondent if he was deported to South Africa established “very compelling circumstances” such that Article 8 prevented the UK was prevented from deporting the Respondent.

Ground 1

3. On Ground 1, the Respondent appears to take issue with the FTT’s finding that the mother could return to South Africa. The Respondent says that the issue of whether the mother could or should return to South Africa “was not properly raised as an issue”. This is not accepted.

4. In a case of this nature, where the deportee was claiming that deportation would unlawfully separate him from his mother, an obvious and necessary question to ask was why the mother could not follow him to South Africa. No doubt this is why the Respondent, quite properly and consistent with the duty to identify his case in accordance with Lata [2023] UKUT 00163, submitted that “it is not realistic to expect [the mother] to move to or visit South Africa” (Respondent’s addendum skeleton argument, para. 41). The Appellant never conceded that point and, as the Respondent acknowledges, the mother was questioned about it. It was clearly a live factual issue in the case which the FTT resolved against the Respondent.

5. For the avoidance of doubt, the Appellant is not attempting to re-litigate any findings of fact (as the Respondent suggests at para. 8). The appeal must proceed on the basis that the mother would not return to South Africa if the Respondent were deported. At the same time, the appeal must proceed on the basis of other findings of fact namely the mother “could of course return to South Africa” [86] because she has a “significant subjective fear of returning [which] is not objectively well-founded” [87]. Once these findings are taken into account, the facts simply cannot establish the necessary “very compelling circumstances” if Article 8 is to prevent the United Kingdom from deporting a serious criminal.

6. As for the submissions about Ribeli, there are of course factual distinctions to be made, for example, unlike the individuals in Ribeli, this case involves a rapist who poses a “high risk of serious harm” to the public and in respect of whom there is a high public interest in the Respondent living outside of the UK. But the Appellant mainly relies on this authority for the underlying principle that Article 8 involves an objective test, specifically when considering whether family members can reasonably enjoy their family life outside the UK. The Respondent does not appear to dispute this general principle. The Appellant submits that just as it was objectively reasonable for the daughter in Ribeli to join her mother, it is (as the FTT found in this case) objectively reasonable for the mother to join her son. The fact that the mother has an unreasonable fear of crime, and hence chooses to remain in the UK, carries little weight, if any, in the Article 8 analysis.

Ground 2

7. On Ground 2, the Respondent submits that the FTT reached an unimpeachable conclusion that there were very exceptional circumstances that prevented the UK from deporting the Respondent.

8. The Appellant maintains her position on this Ground. Once the FTT’s improper reliance on the fact that the mother would not leave the UK is left out of account, it was indeed perverse to find that the circumstances were “very compelling” so as to outweigh the overwhelming public interest in deporting the Respondent.

Conclusion

9. The FTT erred. The UT should allow appeal, reverse the decision of the FTT and hold that on the findings of the FTT Article 8 did not require the United Kingdom to permit the Respondent to remain in the UK, given that the mother is able to live with her son in South Africa.

Discussion and analysis
15. A skeleton argument drafted by Mr Richard Evans dated 25 June 2025 has been received by the Upper Tribunal and from Mr Kerr dated 26 June 2025.
16. I remind myself that the guidance of the Court of Appeal to appellate judges, that irrespective of their personal views of the particular appeal or whether another judge would have made the decision under challenge, an appellate court should not interfere with the decision of a judge below unless it is “plainly wrong”.
17. At the conclusion of the error of law hearing announced that I find legal error material to the decision to allow the appeal for which I now give my reasons.
18. The Judge makes a number of findings and attributed the weight to the evidence she thought it appropriate to give.
19. Mr Kerr was asked at the outset about the Judge’s finding at [55] of the determination in which the Judge was considering the issue of rehabilitation and risk of reoffending. The Judge’s findings in relation to both issues are that there was no evidence of rehabilitation and a high risk of reoffending which must relate to both high risk of reoffending by committing a contact sexual offence and to children, as per the OASys repot. Unlike the other paragraphs within the determination the Judge does not set out what weight she gives to this particular aspect of the evidence in [55].
20. Following my seeking his view upon this issue, I accept the submission from Mr Kerr that paragraph 55 must be read together with [56], [57], and [58], and the Judge’s finding that significant weight should be given to these factors.
21. It was accepted by Mr Kerr that the Judge has found that the Appellant cannot satisfy any of the exceptions to deportation found in section 117 C of the Nationality, Immigration Asylum Act 2002, for the reasons set out, although in light of the length of sentence imposed upon Mr Esterhuizen the relevant provision in section 117 C (6) which reads:

“In the case of a foreign criminal who has been sentenced to a period of imprisonment of at least four years, the public interest requires deportation unless there are very compelling circumstances, over and above those described in Exception 1 and 2.”

22. If one reads the determination it is clear that in relation to Mr Esterhuizen alone the Judge accepts he is not likely to succeed with his appeal. The Judge also considered, however, the situation of his mother which the Judge was entitled to do – see
Beoku-Betts v SSHD [2008] UKHL 39 – and the question of whether deportation would have an unduly harsh impact upon family member when considering the relevant factors as well as the issue of very compelling circumstances over and above the Exceptions. The Secretary of State does not criticise the Judge for having done so, but rather the way in which the Judge did it and the outcome that arose from her flawed approach.
23. It cannot be disputed that Mr Esterhuizen is a serious offender. The public interest ”almost always” outweighs countervailing considerations of private or family life in a case involving a ‘serious offender’. See Hesham Ali v Secretary of State for the Home Department [2016] UKSC 60 at [46] in which the Supreme Court held:

46. These observations apply a fortiori to tribunals hearing appeals against deportation decisions. The special feature in that context is that the decision under review has involved the application of rules which have been made by the Secretary of State in the exercise of a responsibility entrusted to her by Parliament, and which Parliament has approved. It is the duty of appellate tribunals, as independent judicial bodies, to make their own assessment of the proportionality of deportation in any particular case on the basis of their own findings as to the facts and their understanding of the relevant law. But, where the Secretary of State has adopted a policy based on a general assessment of proportionality, as in the present case, they should attach considerable weight to that assessment: in particular, that a custodial sentence of four years or more represents such a serious level of offending that the public interest in the offender’s deportation almost always outweighs countervailing considerations of private or family life; that great weight should generally be given to the public interest in the deportation of a foreign offender who has received a custodial sentence of more than 12 months; and that, where the circumstances do not fall within rules 399 or 399A, the public interest in the deportation of such Page 21 offenders can generally be outweighed only by countervailing factors which are very compelling, as explained in paras 37-38 above.

24. I accept, that the public interest not a monolith and must be approached flexibly, recognising that there will be cases (albeit unusual) where the person's circumstances outweigh the strong public interest in removal: Akinyemi v The Secretary of State for the Home Department [2019] EWCA Civ 2098 (04 December 2019).
25. It is also important to note the guidance provide in the case law that “Very” imports a very high threshold. “Compelling” means circumstances which have a powerful, irresistible and convincing effect SSHD v Garzon [2018] EWCA Civ 1225 , and that the very compelling circumstances ‘over and above’ test s an “extremely demanding” test.
26. Once findings have been made in relation to the relevant factors the obligation upon the decision-maker is to stand back and consider whether the final conclusion is compatible with Article 8 ECHR. That requires an objective approach.
27. The Secretary of State is particularly critical of the Judge for allowing the appeal based on the situation of Mr Esterhuizen’s mother, with particular reference to a claim that she would not leave the United Kingdom to return to South Africa with her son.
28. Reference is made to the decision of the Court of Appeal in Ribeli v An Entry Clearance Officer [2018] EWCA Civ 611. Although that is an entry clearance and not a deportation case reference has been made to the judgement of Lord Justice Singh at [66]-[72] in which it was found:

67. However, it is important to recall that the test under Article 8 is an objective one, whatever the subjective feelings of a person may be. That is not to criticise Ms Steenkamp: for understandable reasons she wants to continue to have the professional and social life she has built up in the UK and does not wish to return to South Africa. However, that does not come close to establishing that the Respondent's refusal to grant the Appellant entry clearance constitutes a disproportionate interference with Article 8 rights.
68. The starting point is that it is well-established in the authorities that there is no relevant family life for the purpose of Article 8 simply because there is a family relationship between two adults (such as a parent and her child) who live in different countries. There has to be something more than normal emotional ties: see Kugathas v Secretary of State for the Home Department [2003] EWCA Civ 31; [2003] INLR 170. In this case it is said on behalf of the Appellant that there is more: in particular that the Appellant needs to be close to her daughter so that she can receive the care and support which she needs.
69. The crucial point (and it is a powerful point as a matter of common sense as well as a matter of law) is that the Appellant's daughter could reasonably be expected to go back to South Africa to provide the emotional support her mother needs as well as to provide practical support. For example, if the concern is that the Appellant may be cared for in her home by people who may turn out not to be trustworthy, there is no reason why her daughter cannot live and work in South Africa to supervise the care arrangements made for her mother.
70. As the UT Judge observed, at the end of the day, what this case is about is the choice which Ms Steenkamp has exercised and wishes to be able to continue to exercise of living and working in a major international centre like London rather than in South Africa, which is her own country of origin. She is entitled to exercise that choice. But, in those circumstances, the UT cannot be faulted for having come to the conclusion that any interference with the Appellant's right to respect for family life conforms to the principle of proportionality.
71. This is especially so in a context where, as Mr Sheldon has submitted, "appropriate" or "due" weight must be given on the other side of the balance to the assessment by the Secretary of State and by Parliament (which has approved the Secretary of State's changes to the Immigration Rules) of what the public interest requires. Depending on the context the weight which is appropriate or due may be "considerable" weight: see Ali v Secretary of State for the Home Department [2016] UKSC 60; [2016] 1 WLR 4799, para. 44 (Lord Reed JSC), citing Huang v Secretary of State for the Home Department [2007] UKHL 11; [2007] 2 AC 167, para. 16 (Lord Bingham of Cornhill); and also paras. 46 and 50; and R (Agyarko) v Secretary of State for the Home Department [2017] UKSC 11; [2017] 1 WLR 823, para. 47 (Lord Reed JSC).

29. A reading of the determination, whilst showing the Judge gave consideration to the individual factors, does indicate that the weight the Judge gave to the evidence of Mr Esterhuizen’s mother is based upon a subjective assessment without considering all the relevant aspects of the evidence and findings previously made, such as the fact she could safely return to South Africa, without adopting the required objective approach.
30. Another problem with this determination is the one put to Mr Kerr at the hearing which was whether an informed reader, considering the issues in the determination as a whole, would understand why the Judge had found the points found in favour of Mr Esterhuizen’s mother overrode the risk to female members of the community in the United Kingdom and/or children of being victims of further sexual offences committed by Mr Esterhuizen. That is the consequence of taking a subjective view focusing upon the evidence of his mother rather than the objective view of combining all the evidence together and explaining how the individual factors objectively justified the conclusion being reached.
31. I accept that Mr Esterhuizen’s position is:

“Therefore, when the learned FTTJ concludes that the Respondent’s case amounts to very compelling circumstances, she does so because she has pointed to a range of factors which have attracted weight, compellingly the mother’s mental health and social circumstances (§88) but also, the Respondent’s mental health, that he is socially and culturally integrated in the UK whereas there he would face very significant obstacles to re-integration in South Africa (§72).

It is submitted that the learned FTTJ’s conclusion is not infected by irrationality or legal error. The Appellant has not demonstrated that the learned FTTJ has misdirected herself. All that can be submitted by the appellant is that a different Tribunal might have reached a different decision”.

32. Whilst the Judge takes the individual elements requiring consideration and sets out the weight to be given to the same I find the Secretary of State has made out her challenge based upon both grounds on which permission to appeal was sought and granted in relation to this determination. The Judge found this was a very close balancing exercise in the determination, but in light of the difficulties identified by the Secretary of State I find the identified errors are material to the decision to allow the appeal.
33. Accordingly, I set the decision of the Judge aside. The following directions shall apply to future management of this appeal:

a. Mr Esterhuizen shall send to the Upper Tribunal and to the Secretary of State’s representatives no later than 4 PM 25 July 2025 an updated, consolidated, indexed and paginated bundle, containing all the documentary evidence he seeks to rely upon in support of his appeal. Witness statements must be signed, dated, contain a declaration of truth, and shall stand as the evidence in chief of the maker who shall be made available for the purposes of cross-examination or re-examination only (if any).
b. Skeleton arguments are to be filed and exchanged no later than 4 PM 1 August 2025.
c. List for a Resumed Hearing before Upper Tribunal Judge Hanson sitting at Newcastle Magistrates Court on 6 August 2025, not before 12 noon, time estimate three hours.
d. Although Mr Esterhuizen does not need an interpreter, he indicated one would be of use for his mother. His representatives must therefore confirm with the Upper Tribunal, no later than 25 July 2025, the language and dialect required.
e. The existence of a right protected by Article 8 ECHR is found by the First-tier Tribunal is preserved. Any factual findings not challenged shall also be preserved.
Notice of Decision
34. The First-tier Tribunal materially erred in law. That decision is set aside.
35. The appeal shall be managed in accordance with the directions set out above to enable the Upper Tribunal to substitute a decision to either allow or dismiss the appeal.


C J Hanson

Judge of the Upper Tribunal
Immigration and Asylum Chamber


27 June 2025