UI-2025-002048

• Status of case: Unreported
• Hearing date: 9 Oct 2025
• Promulgation date: 20 Jan 2026
• Publication date: 4 Feb 2026
• Last updated on: 4 Feb 2026

The decision

IN THE UPPER TRIBUNAL
IMMIGRATION AND ASYLUM CHAMBER
Case No: UI-2025-002048

First-tier Tribunal No: HU/52428/2024
LH/05997/2024

THE IMMIGRATION ACTS

Decision & Reasons Issued:

On 20th of January 2026

Before

UPPER TRIBUNAL JUDGE PINDER

Between

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Appellant in the UT / Respondent in the FtT

and

S M
(ANONYMITY ORDER MADE)
Respondent in the UT / Appellant in the FtT

Representation:

For the Appellant in UT: Ms Clewley, Senior Presenting Officer.
For the Respondent in UT: Mr Maqsood, Counsel instructed on a direct/public access.

Heard at Field House on 9 October 2025

Order Regarding Anonymity

Pursuant to rule 14 of the Tribunal Procedure (Upper Tribunal) Rules 2008, the Respondent S M is granted anonymity.

No-one shall publish or reveal any information, including the name or address of the Respondent, likely to lead members of the public to identify the Respondent. Failure to comply with this order could amount to a contempt of court.

DECISION AND REASONS
Introduction
1. This is the re-making of the decision in the Respondent SM’s appeal against the Appellant Secretary of State’s refusal of his human rights claims, which followed the Secretary of State’s decision to make a deportation order. This re-making decision follows my and Deputy Upper Tribunal Judge Webb’s (‘the panel’) earlier decision to set aside the decision of the First-tier Tribunal (‘the FtT’). The FtT decision had allowed the Respondent DM’s appeal on Article 8 ECHR grounds and was set aside because this contained material error(s) of law. The panel’s earlier decision (‘the error of law decision’) was promulgated on 31st July 2025 and is annexed to this decision.
2. I have maintained the Anonymity Order in favour of the Respondent SM. I continue to consider that, on the specific facts of this appeal, it is necessary and justified for there to be a derogation from the principle of open justice. This is because the Respondent SM has children, one of whom is still a minor but at an age where he can easily access the internet. There are real and justified concerns that identifying the Appellant in any publication or reporting of the decision in this appeal, when issued, would be likely to be accessed by the Appellant’s minor child and those close to the family. I consider therefore that this would likely cause harm to the Appellant’s minor child, which justifies this derogation.
3. Following a transfer order, I heard the re-making appeal on 9th October 2025.
4. For ease of reference, I will from now on refer to the parties as they appeared below, namely to the Secretary of State as the Respondent and to SM as the Appellant.
5. As was recorded at para 34 of the error of law decision, the FtT’s findings in respect of the Appellant’s previous appeal determination and the circumstances surrounding his departure from the UK and subsequent re-entry set out at [24]-[39] of the FtT’s decision were preserved. This was on the basis that the Respondent Secretary of State had not sought to challenge those findings. The panel also confirmed in that same paragraph that the FtT’s finding that the Appellant has a genuine parental relationship with his youngest child was also preserved since that was an issue accepted by the Respondent in her decision.
6. The matter was set down for a re-making hearing in order to determine whether the Appellant is able to demonstrate that he meets either of the exceptions to being deported from the UK contained in the statutory provisions enacted by Parliament in s.117C(5) and/or s.117C(6) of the Nationality, Immigration and Asylum Act 2002, namely:
(a) Whether the Appellant’s deportation from the UK would be unduly harsh on his youngest child, a British citizen;
(b) In the alternative, whether the Appellant has demonstrated very compelling circumstances over and above the statutory exception to deportation (contained in s.117C(5)) such that maintaining the Respondent’s decision would be contrary to the Human Rights Act 1998 by reason of it being a disproportionate interference with rights protected by Article 8 of the ECHR, pursuant to s.117C(6) of the 2002 Act.
7. The Respondent’s decision refusing the Appellant’s claims is dated 15th February 2024. There is otherwise a detailed summary of the relevant factual and procedural background in this matter set out at paras 4-7 of the panel’s error of law decision. On this basis I do not summarise this again and a copy of the error of law decision is annexed to this decision. This summary also needs to be read together with the panel’s summary at para 10 of the FtT’s findings, which were preserved.
The evidence
8. I had before me the parties’ composite bundle (‘TB’) of evidence of 375 pages, which had been prepared for the error of law hearing, together with a supplementary bundle from the Appellant of 6 pages filed and served in compliance with the directions issued by the panel on 31st July 2025 for the purposes of this re-making hearing.
9. No further documents were otherwise submitted on behalf of the Respondent Secretary of State in preparation for the re-making of this appeal. This is despite the opportunity to do so with the Tribunal’s directions issued in the panel’s error of law, as briefly mentioned above.
10. I have given careful consideration to all of the written materials contained in the composite bundle and separately.
The hearing
11. At the outset of the hearing and on behalf of the Appellant, Mr Maqsood sought to rely on a skeleton argument, dated 8th October 2025, filed and served the day before the hearing. I heard brief oral submissions to determine whether this document should be admitted and I determined that it should. I took into consideration Mr Maqsood’s confirmation that he was instructed on a direct access basis on the day that the skeleton argument was settled but importantly that he had accepted this instruction pro bono. Mr Maqsood explained that the Appellant had otherwise struggled to secure legal representation and Mr Maqsood had used his best endeavours to settle the skeleton argument at short notice in order to assist both parties and the Tribunal on the relevant factual and legal issues and the corresponding relevant evidence. I was also of the view that this document assisted both parties and myself and so it was in the interests of justice and in accordance with the overriding objective to admit this document.
12. In light of this decision, I provided time for Ms Clewley to consider this document further and to take instructions if necessary. In particular, Ms Clewley confirmed that she wished to do specifically in relation to paras 35-37 of Mr Maqsood’s skeleton argument, which took issue with the legality of the Respondent’s deportation decision dated 18th May 2023. This invoked s.3(6) Immigration Act 1971 (‘the 1971 Act’) on the basis that “the sentencing court also recommended to the Secretary of State that (the Appellant) be deported from the UK.” Mr Maqsood raised in his skeleton argument that this was incorrect and therefore unlawful since the Appellant’s deportation had not been recommended by the criminal judge when sentencing the Appellant in 2005.
13. I also indicated, prior to the short adjournment to enable Ms Clewley to consider her position, that Mr Maqsood’s arguments concerning the legality of the Respondent’s deportation decision of 18th May 2023 may be relevant to the matters to consider when conducting the assessment of ‘very compelling circumstances’ under s.117C(6). My preliminary view was that I did not have jurisdiction to consider the legality of the 2023 decision itself, since the Appellant does not enjoy a statutory right of appeal against that decision.
14. In the end, Ms Clewley was given time and able to take instructions throughout the morning of the day of the hearing. She confirmed shortly after 2pm that she was ready to proceed.
15. The Appellant attended the hearing and was called to give oral evidence. He was assisted by an Urdu interpreter and confirmed the truth and accuracy of his witness statement, which appeared at [70] of the consolidated bundle and which he adopted as his evidence-in-chief. The Appellant was then cross-examined by Ms Clewley on behalf of the Respondent. There was no re-examination of the Appellant by Mr Maqsood and neither did I have any questions by way of clarification for the Appellant.
16. Following the Appellant’s oral evidence, I heard legal submissions from both advocates, after which I confirmed that I would be reserving my decision. I have addressed both parties’ competing evidence and submissions below when setting out my analysis and conclusions. I am sorry for the time that it has taken me to issue this decision, which has been as a result of my professional and other commitments in the time that has passed since the hearing.
Findings of fact and Conclusions
Whether the Appellant’s deportation would be unduly harsh on the Appellant’s minor child
17. In reaching my findings and conclusions below, I confirm that I have considered all of the evidence admitted into these proceedings as well as the parties’ respective written and oral submissions for the re-making of this appeal.
18. As the Appellant has been sentenced to a period of imprisonment of at least 12 months, but less than four years, the public interest requires his deportation unless either of the exceptions within s.117C of the 2002 Act applies, or in the alternative, if there are very compelling circumstances outweighing that public interest over and above the exceptions and in accordance with s.117C(6).
19. In conducting the ‘unduly harsh’ assessment that applies is Exception 2, it is well established that the focus is on the position of the child only, i.e. no account is to be taken of the seriousness of the particular offence(s) or of the particular criminal or other history of the child’s parent, namely the Appellant - KO (Nigeria) & Ors v Secretary of State for the Home Department [2018] UKSC 53, [32], [36]. This was found by the Supreme Court in KO (Nigeria) to be consistent with the principle that the child should not be held responsible for the conduct of the parent as considered previously in Zoumbas v Secretary of State for the Home Department [2013] UKSC 74, [2013] 1 WLR 3690, [10] per Lord Hodge.
20. The Supreme Court in KO (Nigeria) also endorsed at [27] the guidance given by the Upper Tribunal on how to interpret and apply the ‘unduly harsh’ test:
27. Authoritative guidance as to the meaning of “unduly harsh” in this context was given by the Upper Tribunal (McCloskey J President and UT Judge Perkins) in MK (Sierra Leone) v Secretary of State for the Home Department [2015] UKUT 223 (IAC), [2015] INLR 563, para 46, a decision given on 15 April 2015. They referred to the “evaluative assessment” required of the tribunal:
“By way of self-direction, we are mindful that ‘unduly harsh’ does not equate with uncomfortable, inconvenient, undesirable or merely difficult. Rather, it poses a considerably more elevated threshold. ‘Harsh’ in this context, denotes something severe, or bleak. It is the antithesis of pleasant or comfortable. Furthermore, the addition of the adverb ‘unduly’ raises an already elevated standard still higher.”
21. In addition to the cases cited immediately above and further below, the relevant case law that I have considered also includes HA (Iraq) v SSHD [2022] UKSC 22, NA (Pakistan) v SSHD & ors [2016] EWCA Civ 662, and more recently Sicwebu v Secretary of State for the Home Department [2023] EWCA Civ 550.
22. The ‘unduly harsh’ test is a self-contained exercise. It is not permissible therefore for a judge to consider public interest considerations, the seriousness of the Appellant’s offending and/or the length of his sentence when assessing whether the impact on relevant child is unduly harsh in the context of s117C(5). The assessment of unduly harsh is confined to the consideration of the impact of deportation on the child. It is important not to lose sight of the fact that the hurdle of ‘unduly harsh’ is not as high as that set by the test of ‘very compelling circumstances’ in s.117C(6).
23. Thus, I first turn to assess whether or not the effect of the Appellant’s deportation would be unduly harsh on his child, pursuant to s.117C(5) of the 2002 Act.
24. The Appellant has two children but only one of his children remains a minor at the time of the Respondent’s decision and at the time of this hearing. The child in question is aged 16 years old and is a British citizen. The Appellant’s child lives with his mother and sees the Appellant several times a week to spend time together. The Appellant has been separated from his child’s mother since 2010 and ever since then, the Appellant and his child have seen each other on a weekly basis minimum.
25. It is not, and has not been in dispute that the Appellant has a genuine and subsisting parental relationship with his minor child. The Respondent addressed the Appellant’s claim to meet the exception to deportation as follows in her decision dated 15th February 2024:
“It is not disputed that you have a genuine and subsisting parental relationship with your son Bilal. A genuine and subsisting relationship means more than a biological relationship and more than presence in a child’s life. It requires a significant and meaningful positive involvement in a child’s life with a significant degree of responsibility for the child’s welfare.
It is not accepted that it would be unduly harsh for Bilal to live in Pakistan. It would be down to yourself and his mother to decide what is in the best’s interests of the child. He can remain in the United Kingdom with his mother, or he could accompany you to Pakistan, whereby he could adapt to life there, with your and his mother’s support. Many parents have legitimately taken their children to live in other countries and the children readily adapt, learning new languages and understanding the cultural differences. It is considered that Bilal is of age at which he can easily adapt to life abroad. It is reasonable to expect at the least that he has been raised with a familiarity of the Pakistan cultural mores through yourself and his mother, as Pakistan nationals. Given the fact that you were born in Pakistan and lived your formative years there, it is therefore accepted that you could help him adjust to living there. There is no evidence that your child would not be able to learn Pakistan or any other regional language.
It is not accepted that it would be unduly harsh for Bilal to remain in the United Kingdom even though you are to be deported. This is because it is considered that he can remain in contact with you through modern forms of communication or visits to Pakistan when he is full of age.
There is nothing to suggest that he is in any way at risk of suffering ill-treatment in your absence. There are no grounds to suggest your deportation would cause him undue hardship or that his welfare would be compromised.
It is accepted that your deportation will likely have an emotional impact on him, but he would be cared for and supported by his mother who could provide emotional care and support. Further, there is no reason to think that you could not make arrangements to remain in contact with each other whilst you were abroad. Contact could be maintained via modern methods of communication or with visits to Pakistan.
Therefore, having considered all available information, it is not accepted that you meet the requirements of the exception to deportation on the basis of family life with a child.”
26. The previous determination of the FtT dated 19th February 2007, which concluded that the Appellant’s deportation would not engage the UK’s obligations, was departed from by the Judge at first instance since the Appellant’s previous appeal was determined prior to the Appellant’s child being born. The FtT’s findings on whether it was justified to depart from this are at [24]-[26] of the decision and those findings were preserved by the panel in the error of law decision at [34]. For these reasons, I do not accept that this determination acts as my starting point, as submitted by Ms Clewley at the start of her oral submissions before me.
27. I first deal with what has become commonly referred to as the ‘go scenario’, namely whether the Appellant’s deportation would be unduly harsh on the Appellant’s child in expecting the child to leave the UK and to accompany the Appellant to Pakistan. This is briefly addressed by the Respondent in her decision but Ms Clewley did not seek to pursue that case further before me instead focusing on the ‘stay scenario’, which I have addressed further below.
28. I consider it right that Ms Clewley did not seek to positively advance such a case. I have no hesitation in finding that it would unduly harsh on the Appellant’s child to expect him to leave the UK in order to accompany his father to Pakistan on the Appellant’s deportation. The Appellant was born in the UK and is a British citizen. He has never lived anywhere else for any significant period of time and his parents have been separated since 2010, namely when he was approximately two years old. He has since primarily lived with his mother and spends time with his father at weekends and after school on a weekly basis as already mentioned. Expecting the Appellant to leave the UK would therefore cause a separation from his primary carer and would likely not be supported by his mother. This I believe would be unduly harsh on the child, who is also at a critical stage of his education.
29. With regards to the ‘stay scenario’ of expecting the Appellant to separate from his child upon the Appellant’s deportation and for his child to remain in the UK without him, Ms Clewley submitted that the Appellant’s child, as a result of his age, does not require hands-on care or guidance and he is very nearly an adult. Ms Clewley argued that the proposed separation for the brief period during which he remains a minor cannot outweigh the significant public interest in deporting the Appellant. The child will be able to rely on his existing support network, consisting of his mother, elder sister and other relatives based in the UK.
30. Ms Clewley also submitted that there was no evidence to suggest that it is in the child’s best interests to see his father and they can continue their relationship through modern means of communication. The child does not live with his father and has not done so since he was a toddler. Ms Clewley also relied on evidence that confirmed that there were times when the Appellant did not see his children. Whilst Ms Clewley accepted that the relationship between the Appellant and his child was genuine, the likely impact, caused by the Appellant’s deportation, on that relationship was not unduly harsh, which Ms Clewley reminded me amounted to an elevated threshold.
31. The Appellant confirmed that his child has been studying mechanics at college and has also been undertaking work experience with the Appellant at the car repair garage that he also works at. The Appellant confirmed to Ms Clewley in cross-examination that he sees his son between three to four times per week – this includes the time spent together working and also in the Appellant’s own home. When the Appellant was asked about not being permitted to see his children in 2018, the Appellant confirmed that that was indeed the case and had been as a result of disputes between him and his wife when separated. Those issues had since resolved and the Appellant confirmed that his son can come and spend time with him as much as he likes.
32. The Appellant also relied on a letter written by his son, which is addressed to the Tribunal and to the Home Office. In this letter, the Appellant’s child pleads for his father to be permitted to stay in the UK. He confirms relying on his father for guidance, stability, day to day support and that he cannot imagine facing life’s challenges without his presence. The Appellant’s child states that separating him from his father would cause him (the child) “immense emotional and psychological distress”. There is also a letter from the Appellant’s elder child, which refers to her having two children of her own, i.e. the Appellant’s two grandchildren, and that the Appellant has been active in their lives also.
33. Whilst I acknowledge that the Appellant’s child does not live with the Appellant, they see each other very frequently each week. That has been a constant for the Appellant’s child ever since he can remember since his parents separated when was approximately two years old. I accept the Appellant’s evidence that the Appellant comes over to his home effectively when he wants to do so. This was not successfully challenged by the Respondent and I also consider that this is consistent with the likely behaviours and expectations of a 16-year old who lives close to his father’s, who frequently spends time with him and whose parents have been separated since he was approximately two years ago.
34. Importantly, the Appellant’s child is of an age, namely 16 years old, where his expressed wishes and feelings can be taken into consideration when assessing what is in his best interests. It is also well-established that it is, in general, in a child’s best interests to be brought up by both parents and to have both parents involved in their up-bringing, provided this is safe. There is simply no evidence before me to justify any departure from this general principle in the case of the Appellant’s child and I must have regard to a child’s best interests as a primary consideration.
35. A child’s best interests is of course not determinative of it being unduly harsh for them to be separated from a particular parent but I nevertheless form the view that it would be unduly harsh in this particular case. This is for the following reasons:
(a) As addressed above, the Appellant’s child has always had his father involved and even if there were periods where there were disagreements between the Appellant and his wife as to the amount of time that the children would be spending with their father, on the whole, throughout the child’s 16 years, the Appellant has been a constant, active and involved presence in his life;
(b) Ms Clewley’s submission that the child no longer needs hands-on care or guidance, compared to a younger child, does not in my view lessen the impact of the Appellant’s deportation on the child. A 16-year old teenager continues to need their parent, in different ways. I accept the Appellant’s evidence that they have a close relationship together;
(c) Similarly, Ms Clewley’s submission that the separation would only be for a brief period of the minority of the Appellant’s child cuts both ways, so to speak. I consider it all the more likely that the separation will have a greater affect on the Appellant when he has not known any different and has always had an involved father. The child was born after the Appellant was released from prison and after he was able to return to the UK, as I have considered in more detail below;
(d) I also accept that the child is at a formative age, navigating adolescence and making crucial decisions about education, work, and identity. Further, that he has done so with his father at his side so far;
(a) The relationship between the Appellant and his child is also all the more closer because the child has been working with the Appellant whilst at college and learning the mechanics trade. I find that to cause a separation between the Appellant and his child, at a critical stage of the child’s education and journey into adulthood, is likely – together with the reasons above – to be unduly harsh;
(b) I do not consider it likely that occasional visits to Pakistan and/or video or telephone calls between the Appellant and his child would likely lessen or alleviate the extremely severe sense of loss that the child is likely to experience on the Appellant’s deportation;
(c) Nor do I consider that the support that the Appellant’s child would likely receive from his mother and older sister would likely lessen or alleviate this sense of loss. The Appellant’s sister leads an independent life of her own and for all intents and purposes, the Appellant has been co-parented by both of his parents.
36. In this particular case and with specific regards to the Appellant’s child, I do not consider that separating the child from his father would just be merely uncomfortable, inconvenient, undesirable or just difficult. Rather, I am satisfied that, for him, such a separation would meet the threshold of ‘unduly harsh’. I remind myself that the word ‘harsh’ denotes a higher threshold, which is elevated even further, with the word ‘unduly’.
37. I take into consideration, through the Appellant’s child’s perspective, of all of the factors set out above at para 35 and in the earlier paragraphs in this section of my decision - he is not likely to have known his father to be at risk of deportation until more recently. He has built secure and close attachment to his father as a result. For reasons that I have considered in further detail below, the Appellant was born in the UK after his parents reconciled following the Appellant’s return to the UK in 2007. The child has therefore not known life without his father and as I have addressed already, he has a close relationship with him.
38. At a critical age of 16 years old, I am of the firm view that, in the very specific circumstances of this case, it is likely that the child will experience an extremely severe sense of loss, which is likely to have a devastating impact on all aspects of the child’s development including his education attainment, his mental health and his emotional and physical well-being, such as to meet the ‘unduly harsh’ threshold.
39. Pursuant to my findings above, his appeal stands to be allowed under Article 8 ECHR through operation of statute in s.117C(5) of the 2002 Act.
40. If I am wrong on my findings and conclusions above, I turn to consider the Appellant’s alternative case under s.117C(6) of the 2002 Act.
s.117C(6) of the 2002 Act and the ‘very compelling circumstances’ test
41. Before turning to consider in detail the various competing factors in this case, I set out and remind myself of the overarching principles applicable to the ‘very compelling circumstances’ assessment under s.117C(6) of the 2002 Act.
42. The threshold is undoubtedly very high. In NA (Pakistan) v Secretary of State for the Home Department [2016] EWCA Civ 662; [2017] Imm AR 1, Jackson LJ said at [33] that:
“33. Although there is no “exceptionality” requirement, it inexorably follows from the statutory scheme that the cases in which circumstances are sufficiently compelling to outweigh the high public interest in deportation will be rare.”
43. When considering the ‘very compelling circumstances’ test in HA (Iraq) v Secretary of State for the Home Department [2022] UKSC 22; [2022] 1 WLR 3784, Lord Hamblen referred at [48]-[49] to other authorities with similar effect:
“48. In Rhuppiah v Secretary of State for the Home Department [2016] 1 WLR 4203 at para 50 Sales LJ emphasised that the public interest “requires” deportation unless very compelling circumstances are established and stated that the test “provides a safety valve, with an appropriately high threshold of application, for those exceptional cases involving foreign criminals in which the private and family life considerations are so strong that it would be disproportionate and in violation of article 8 to remove them.”
44. As explained by Lord Reed in his judgment in Hesham Ali v Secretary of State for the Home Department [2016] UKSC 60; [2016] 1 WLR 4799 at [38]:
“… great weight should generally be given to the public interest in the deportation of [qualifying] offenders, but … it can be outweighed, applying a proportionality test, by very compelling circumstances: in other words, by a very strong claim indeed, as Laws LJ put it in the SS (Nigeria) case [2014] 1 WLR 998. The countervailing considerations must be very compelling in order to outweigh the general public interest in the deportation of such offenders, as assessed by Parliament and the Secretary of State.”
45. In cases where the ‘very compelling circumstances’ test applies, rehabilitation is in general likely to be of little or no material weight, but if there is evidence of positive rehabilitation, such evidence may have a bearing on whether deportation is necessary to protect the public.
46. I have had regard to the relevant considerations set out at [51] of the judgment of the Supreme Court in HA (Iraq) and to the case of OH (Algeria) v Secretary of State for the Home Department [2019] EWCA Civ 1763 at [63] where Irwin J stated that “[a]s a matter of language and logic” the very compelling circumstances test sets “a very high bar indeed”.
47. The authorities also make it clear that the considerations under Exceptions 1 and 2 in ss.117C(4) and 117C(5) of the 2002 Act can be relevant to the ‘very compelling circumstances’ test. At [37] of NA (Pakistan), Jackson LJ concluded that:
“37. In relation to a serious offender, it will often be sensible first to see whether his case involves circumstances of the kind described in Exceptions 1 and 2, both because the circumstances so described set out particularly significant factors bearing upon respect for private life (Exception 1) and respect for family life (Exception 2) and because that may provide a helpful basis on which an assessment can be made whether there are “very compelling circumstances, over and above those described in Exceptions 1 and 2” as is required under section 117C(6).”
48. I take all of the foregoing into account, namely the guidance set out above and my assessment of the evidence as it specifically concerns the best interests of and the likely impact of the deportation on the Appellant’s child under s.117C(5) of the 2002 Act. I do not rehearse this here as well but carry my findings forward and I apply the relevant guidance and authorities into this assessment.
49. In addition to the impact on the Appellant’s child, there are also other considerations, some of which carry a significant amount of weight in the Appellant’s favour. Some of these factors were already considered as part of the panel’s earlier error of law decision and take the form of preserved findings from the FtT’s decision. For this reason, I do not rehearse those particular factors again in much detail and where indicated, I will cross-refer to the panel’s earlier decision and/or the FtT’s decision as appropriate. The relevant factors are the following:
(a) The passage of time since the Appellant’s conviction on 21st October 2025, for which he was sentenced to 1 year and 9 months’ imprisonment;
(b) Ms Clewley was able to confirm at the outset of the hearing that she had been able to make relevant enquiries in respect of the Appellant’s Police National Record (‘PNC’) and she confirmed that there was no information that would lead the Respondent to believe that the Appellant has re-offended – this includes the almost 20 year period that has passed since the Appellant’s conviction of 21st October 2025;
(c) Upon the Appellant indicating and confirming that he would voluntarily return to Pakistan on release from prison and detention, the Respondent duly facilitated this return and confirmed not having pursued a Deportation Order against the Appellant, with the Respondent also closing on 19th June 2007 “the application raised to deport (the Appellant) from the United Kingdom” – see the Respondent’s decision [TB 355]. The Appellant then left the UK on 26th June 2007;
(d) The Appellant sought to return to the UK on 7th October 2007 and was granted leave to enter by the Respondent. No restriction or condition was imposed on the Appellant’s entry and none was evidently included when the Appellant’s passport was stamped by the Immigration Officer at entry. The only other endorsement on the Appellant’s passport other than the date of entry is “VIPP” written in manuscript. The Respondent informed the FtT in her review document that this means “Visa in Previous Passport” [TB 369 and 375];
(e) The FtT found that contrary to the Respondent’s assertions, the Appellant was not informed on entry in 2007 that he no longer held lawful status in the UK. The FtT concluded at [35] of the FtT’s decision that there was no evidence to support this submission. At [37], the FtT considered the Respondent’s submission that the Respondent had issued an exclusion order against the Appellant but noted that this order had not been disclosed by the Respondent nor was there any other documentary evidence of this order being made. The Judge at first instance also noted that on the Respondent’s case, this order was also made at a time after the Appellant had already been permitted to re-enter and there was therefore no evidence or authority before the Judge as to its effect on the Appellant;
(f) The findings at (e) above were not challenged by the Respondent Secretary of State in her appeal to this Tribunal and were therefore preserved by this Tribunal at [34] of the panel’s error of law decision;
(g) As was the case before the Judge at first instance, the Respondent has not otherwise placed any evidence before me to demonstrate that she took steps to effect the Appellant’s return or deportation to Pakistan following the Appellant’s re-entry on 7th October 2007. There was still no evidence from the Respondent of an exclusion order having been made issued, or indeed served on the Appellant, as asserted by the Respondent in the review at [TB 369];
(h) On 24th February 2015, the Appellant applied for a new passport of his to be endorsed with a ‘no time limit’ (‘NTL’) stamp. There is no evidence before me that the Respondent did anything to initiate contact or otherwise pursue the Appellant between his entry on 7th October 2007 and 24th February 2015, when the Appellant brought himself to the Respondent’s notice through this NTL application;
(i) On 4th August 2015, the Respondent decided the Appellant’s NTL application. She stated the following of note when doing so:
“(D)espite an extensive check of our systems I am unable determine your method of re-entry to the United Kingdom. With this in mind, it is deemed that you have entered the United Kingdom illegally and have no basis of stay. Following your departure from the United Kingdom on 26 June 2007, your ILR status became nullified. You therefore no longer have settled status in the UK.
Notwithstanding the above, your application for NTL has been refused as the Secretary of State is not satisfied that your are entitled to an NTL endorsement.”
It has since been confirmed (shortly before the appeal hearing at first instance and as we can see from the summaries above) that the Appellant was granted leave to enter by the Respondent’s Immigration Officer on 7th October 2007;
(j) On 15th January 2019, the Appellant submitted a human rights claim based on his family and private life established in the UK. His evidence is that he did not hear anything further from the Respondent and needed to resolve his status in his new passport, which is why he submitted the application in 2019. Once again, there is no evidence before me that the Respondent did anything to initiate contact or otherwise pursue the Appellant between refusing his NTL application on 4th August 2015 and 15th January 2019, when the Appellant brought himself to the Respondent’s notice again through a different application;
(k) The Respondent then took a further period of just under five years to consider the Appellant’s application and to finalise in her decision of 15th February 2024 the deportation action, which she had decided to initiate through the notice issued to the Appellant on 18th May 2023;
(l) On 15th February 2024, the Respondent refused the Appellant’s 2019 application and the written representations that had been lodged by the Appellant in response to the notice of 18th May 2023. This is the decision (of 15th February 2024) that the Appellant appealed to the FtT;
(m) Lastly, if I am wrong in my findings above concerning the likely impact of the Appellant’s deportation on the Appellant’s minor child, I have no hesitation in finding in the alternative that this would have a severe and devastating impact on him. I also consider that this would have a similar effect on the Appellant’s eldest daughter because of their close relationship, which I accept, and because of the Appellant’s involvement with his grandchildren. Albeit, I consider that she would better cope with the separation being that much older and leading an independent life of her own already. These factors and the impact, considered in the alternative, are also relevant factors to weigh in the Appellant’s favour when considering whether he demonstrates ‘very compelling circumstances’ over and above the relevant statutory exceptions.
50. On the Respondent’s side of the balance is the strong public interest in general in maintaining the Respondent’s decision to deport the Appellant in light of his criminal conviction. This has been recognised by Parliament. The Appellant’s criminal conviction in 2005 was serious and attracted a sentence of imprisonment of one year and nine months. Ms Clewley submitted that some criminal deportation cases are justified by the offending itself even if there has not been any re-offending, relying on the Court of Appeal’s judgment in N (Kenya) v Secretary of State for the Home Department [2004] EWCA Civ 1094 [2004] INLR 612.
51. This proposition is in line with more recent guidance from the Supreme Court’s guidance in Lord Hamblen’s judgment at [58] in HA (Iraq), in turn citing with approval Underhill LJ’s judgement at [141] in that appeal in the Court of Appeal:
“Where a tribunal is able to make an assessment that the foreign criminal is unlikely to re-offend, that is a factor which can carry some weight in the balance when considering very compelling circumstances. The weight which it will bear will vary from case to case, but it will rarely be of great weight bearing in mind that, as Moore-Bick LJ says in Danso, the public interest in the deportation of criminals is not based only on the need to protect the public from further offending by the foreign criminal in question but also on wider policy considerations of deterrence and public concern. I would add that tribunals will properly be cautious about their ability to make findings on the risk of re-offending, and will usually be unable to do so with any confidence based on no more than the undertaking of prison courses or mere assertions of reform by the offender or the absence of subsequent offending for what will typically be a relatively short period.”
52. In this appeal, the Appellant relies on the passage of time and his evidence that he has not re-offended, that he has reintegrated into British society since his return in October 2007, while working as a mechanic and looking after his children. In light of the guidance above, I attach only some weight to this evidence since the public interest supporting the Respondent’s decision is not only concerning the issue of re-offending but also the wider issues of deterrence and public concern more generally.
53. Ms Clewley relied upon the recent judgment of the Court of Appeal in Kapikanya v Secretary of State for the Home Department [2025] EWCA Civ 987, acknowledging that the nature of the Appellant’s offence is not as serious and significant in number of offences than the appellant in Kapikanya. However, Ms Clewley submitted that the judgment reiterated the same points that are pursued in this matter on behalf of the Respondent, which strengthen the force of the public interest even when faced with delay.
54. Having considered all of the above very carefully, I am of the very firm view that the public interests advanced by the Respondent in her decision of 15th February 2024 are very strongly reduced by the Respondent’s own conduct in respect of the Appellant. What I have summarised again in this decision, but which also featured heavily in the Appellant’s appeal at first instance and remains unchallenged, are the factors at para 49(d)-(k), which illustrate this conduct. On my assessment, this significantly reduces the weight to be attached to the Respondent’s view that the Appellant’s deportation is in pursuance of the public interests.
55. Ms Clewley acknowledged what she described as there having been a delay in initiating again deportation action against the Appellant, as this did not take place until 2023. Ms Clewley submitted that this was because the Respondent was not aware that the Appellant was back in the UK until 2015. Firstly, this does not provide any explanation for the delay that did take place from 2015 until 2023, a period of approximately eight years.
56. Secondly, on the evidence before me, there is no other conclusion to draw save that the Respondent must have been aware of the Appellant’s presence in the UK since it is the Respondent who granted leave to enter to the Appellant on 7th October 2007. Thus, it is the Respondent who on the evidence before the Judge at first instance, and before me, did not initiate or take any enforcement or deportation action against the Appellant thereafter, including following the Appellant coming to their attention, through the Appellant’s own NTL application in 2015 and the Respondent’s refusal of the same. It is the Respondent who again did not initiate or take any enforcement or deportation action against the Appellant thereafter for a further eight years.
57. During the period between 2007 and 2015, the Respondent did not seek to correct the Appellant’s understanding that he continued to hold lawful status in the UK. Ms Clewley submitted that the Appellant returned to the UK in 2007 in full knowledge that he did not have any lawful basis to reside in the UK as he had utilised the voluntary departure procedure and because of what led to that departure. However, the Respondent has not disclosed any evidence to support this. The document from the International Organisation for Migration addressed to the Appellant at [TB 372] entitled ‘VOLUNTARY RETURN AND REINTEGRATION OF DETAINED MIGRANTS’ does not support such a submission.
58. It may be reasonable for immigration lawyers and those working for the Respondent to infer that the Appellant may not have had any lawful basis to return following his voluntary departure but there is no information or evidence before me to demonstrate that the Appellant, a lay person, may have been informed of this at the relevant times. The Appellant then presented himself, with his own passport, at the airport seeking re-entry and was granted such re-entry by an immigration officer. It is difficult in those circumstances to expect the Appellant to have known better or acted any differently once he had been granted re-entry on 7th October 2007.
59. The Appellant’s understanding following the grant of leave to enter is also supported, as Mr Maqsood submitted, by the Court of Appeal’s finding in Vasa v The Secretary of State for the Home Department [2024] EWCA Civ 777. In those appeals, the Court of Appeal was tasked to consider grants of leave to enter to the appellants, albeit in a different context of exercising rights of residence under the Immigration (EEA) Regulations 2016. At [58], Lewis LJ stated as follows:
“58. The next question is what rights or benefits did the decisions confer upon Mr Vasa and Mr Hasanaj? That is a question as to what, given the context, a reasonable person would understand the decision of the immigration officers to mean. I am satisfied that, in context, considered objectively, a reasonable person would understand the stamps to record a decision that Mr Vasa and Mr Hasanaj were each allowed to come into the United Kingdom and live there with their respective relative who was a national of an EU member state.”
60. Ms Clewley also relied on the Respondent having had issued an exclusion order against the Appellant within 12 weeks of the Appellant’s voluntary departure procedure being effected. However, this exclusion order has still not been disclosed in evidence, nor evidence of its service on the Appellant, as I have addressed at para 49(g) above. Neither has the Respondent placed in evidence any guidance as to the procedures for exclusion orders nor any legal argument as to how it is said that any such order would supersede the Appellant’s lawful entry in the UK prior to any order being issued. This was also the case before the Judge at first instance and the FtT’s findings on this were preserved – see [10] of the panel’s error of law decision, summarising the FtT’s findings at [37] of the Judge’s decision and preserving these at [34] of the panel’s decision. Despite directions being given by the panel for the Respondent to file and serve any further evidence upon which she wished to rely, she did not seek to do so in compliance with those directions.
61. The above conduct from the Respondent has permitted the Appellant to develop closer personal and social ties and to establish deeper roots in the UK on the understanding that he was permitted to do so. This firmly places the Appellant’s case within the first category of cases considered by the House of Lords in EB (Kosovo) v Secretary of State for the Home Department [2008] UKHL 41 at [14]. The Appellant had a second child with his wife born in 2008, namely the child considered as part of the Appellant’s appeal under s.117(C)(5) of the 2002 Act.
62. I also agree with the Appellant that the second category of cases considered by the House of Lords in EB (Kosovo) is also relevant. Even if there was some confusion as to the basis of the Appellant’s re-entry on 7th October 2007, the Respondent’s inaction and delays in the years that followed only served to reinforce the Appellant’s understanding that he was permitted re-entry and residence thereafter. This also applies to the years that followed the Respondent’s decision of 2015. The Appellant’s own evidence before me on that decision was that he thought that the Home Office had simply got it wrong - he had had his passport stamped with no restrictions on 7th October 2007. This resonates entirely in my view with the explanation provided by Lord Bingham at [15] of EB (Kosovo):
“But if months pass without a decision to remove being made, and months become years, and year succeeds year, it is to be expected that this sense of impermanence will fade and the expectation will grow that if the authorities had intended to remove the applicant they would have taken steps to do so. This result depends on no legal doctrine but on an understanding of how, in some cases, minds may work and it may affect the proportionality of removal.”
63. Whilst it is not necessary for me to reach a finding as to whether the third way considered by the House of Lords at [16] also applies, I reiterate again that the Respondent has not offered any evidence to explain the conduct or her lack of action, which has been at the forefront of the Appellant’s appeal, both at first instance and before this Tribunal.
64. The question of delay and whether this is capable of reducing what would otherwise be deemed to be in the public interests was also considered by the Court of Appeal in MN-T (Colombia) v Secretary of State for the Home Department [2016] EWCA Civ 893. Jackson LJ held at [35] of his judgment as follows:
“35. I agree that rehabilitation alone would not suffice to justify the Upper Tribunal's decision in this case. If it had not been for the long delay by the Secretary of State in taking action to deport, in my view there would be no question of saying that "very compelling circumstances over and above those described in Exceptions 1 and 2" outweighed the high public interest in deportation. But that lengthy delay makes a critical difference. That lengthy delay is an exceptional circumstance. It has led to the claimant substantially strengthening her family and private life here. Also, it has led to her rehabilitation and to her demonstrating the fact of her rehabilitation by her industrious life over the last 13 years. (…)”
65. Further when applying the considerations that were held to be relevant by the House of Lords in EB (Kosovo) to a criminal deportation context, Jackson LJ added in MN-T the following at [42]:
“42. If the Secretary of State delays deportation for many years, that lessens the weight of these considerations. As to (1), if during a lengthy period the criminal becomes rehabilitated and shows himself to have become a law-abiding citizen, he poses less of a risk or threat to the public. As to (2), the deterrent effect of the policy is weakened if the Secretary of State does not act promptly. Indeed lengthy delays, as here, may, in conjunction with other factors, prevent deportation at all. As to (3), it hardly expresses society's revulsion at the criminality of the offender's conduct if the Secretary of State delays for many years before proceeding to deport.”
66. Jackson LJ’s explanation as to why in some cases the weight of the public interest considerations is lessened applies, in my view, all the more to this particular case.
67. I emphasise that it may have perhaps been different had the Appellant re-offended and/or engaged in conduct that provided concern to the Respondent, from a public interest point of view, but the index offence and criminal conduct that continues to be relied upon by the Respondent, in support of her 2024 decision and her defence of the Appellant’s appeal, is the Appellant’s criminal conviction of 2005.
68. It may have also have been different had the Appellant secured re-entry into the UK through illegal means or entered the UK in breach of a Deportation Order. However, as I have plainly considered, the Appellant was granted leave to enter by the Respondent. She had also decided not to pursue the making of a formal Deportation Order against the Appellant. The Appellant’s conduct has been therefore, on my assessment, entirely straight forward and open in that he presented himself to the immigration officer on 7th October 2007 with his own passport documentation seeking re-entry to the UK. There is no suggestion whatsoever that the Appellant engaged in any deception when he sought re-entry and subsequently. This therefore strengthens my view that the public interests in seeking the Appellant’s deportation some 20 years after the Appellant’s criminal conviction is very significantly reduced.
69. I have very carefully considered the guidance by the Court of Appeal in Kapikanya. However, I consider the competing issues in that appeal to be very different. I note in particular Bean LJ’s observation at [50] of his judgment, which stated as follows and which in my view demonstrates the distinguishing features in the proceedings before me:
“The Appellant has been the subject of five decisions that he should be deported over a period of a quarter of a century. The system of appeals and orders for reconsideration has served him well in enabling him to remain in the UK throughout that period. But in my view the Secretary of State should now, at last, be allowed to put the November 2016 deportation order into effect.”
70. Bean LJ also helpfully addressed at [43] of his judgment the guidance previously given by Underhill LJ in Yalcin v SSHD [2024] EWCA Civ 74; [2024] 1 WLR 1626 as follows:
“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.”
71. Applying the above for the avoidance of any doubt, the Appellant in the proceedings before me is not a ‘serious offender’, he is a ‘medium offender’. In addition, it is the combination of an unduly harsh effect on a qualifying child and some other factors, which primarily reside in the procedural history of the Respondent’s conduct vis-à-vis the Appellant ever since the grant of leave to enter to him in 2007, that amount to ‘very compelling circumstances’.
72. Lastly, there is one further aspect of this case in dispute between the parties which I need to address. That relates to the underlying power invoked by the Respondent to give notice to the Appellant that he was liable to deportation in her decision of 18th May 2023. In that decision, the Respondent stated as follows:
“The sentencing court also recommended to the Secretary of State that you be deported from the United Kingdom (UK). As such you are liable to deportation by virtue of section 3(6) of the Immigration Act 1971.”
73. For ease of reference, sections 3(5) and (6) of the 1971 Act (as amended) provide as follows:
(5) A person who is not a British citizen is liable to deportation from the United Kingdom if—
(a) the Secretary of State deems his deportation to be conducive to the public good; or
(b) another person to whose family he belongs is or has been ordered to be deported.
(5A) (…)
(6) Without prejudice to the operation of subsection (5) above, a person who is not a British citizen shall also be liable to deportation from the United Kingdom if, after he has attained the age of seventeen, he is convicted of an offence for which he is punishable with imprisonment and on his conviction is recommended for deportation by a court empowered by this Act to do so.
74. Mr Maqsood argued on behalf of the Appellant that this was erroneous since the criminal sentencing judge did not make such a recommendation. He submitted in his skeleton argument that the Respondent must act consistently and fairly and because of this error, the decision “was legally untenable and abuse of process”. Mr Maqsood also submitted that this was a relevant consideration as to the factors that weighed in favour of the Appellant when assessing ‘very compelling circumstances’.
75. Ms Clewley accepted that the sentencing judge had not recommended that the Appellant be deported from the UK when sentencing on 9th December 2005. I have considered the sentencing remarks for myself as well and this is correct – [TB 313-316]. In response, Ms Clewley relied on the fact that the decision also refers to the power under s.3(5) which refers to the Secretary of State’s power to deem a person’s deportation conducive to the public good.
76. Since the Appellant’s offence included a period of imprisonment of more than 12 months, there is no suggestion that the Appellant is not liable to deportation on the basis that he comes within the definition of ‘foreign criminal’ contained in s.117D and in s.32(1) of the UK Borders Act 2007 (‘the 2007 Act’). Section 32(4) of the 2007 Act makes clear that for the purpose of s.3(5)(a) of the 1971 Act, the deportation of a ‘foreign criminal’ is conducive to the public good.
77. Ms Clewley rightly submitted therefore that the Respondent had also referred to her power under s.3(5) and so I am not of the view that the reference to s.3(6), whilst mistaken, gives rise to concern as to the legality of the Respondent’s 18th May 2023 decision. In addition, as I have already referred to above at para 13, the Respondent’s decision of 18th May 2023 is not one that attracts a statutory right of appeal to the tribunals and it is not one therefore that I have any jurisdiction over. I had indicated at the hearing that it may be a relevant factor to consider when assessing whether the ‘very compelling circumstances’ threshold is met but I do not consider, for the reasons that I have set out here, that this takes the issues any further.
78. The ‘very compelling circumstances’ threshold is undoubtedly stringent and I have at the forefront of my mind the public interest considerations which apply. Taking cumulatively the above-listed factors in favour of the Appellant remaining in the UK, which are particularly compelling considering the very unusual procedural history in this matter, together with my findings reached in respect of the Appellant’s youngest child in particular, I am satisfied that this threshold is met. In the alternative therefore, pursuant to s.117C(6), the Appellant’s appeal stands to be allowed on that basis under Article 8 ECHR, again through operation of statute.
Notice of Decision
79. The decision of the FtT dated 24th January 2025 did involve the making of material error(s) of law and has been set aside, pursuant to the earlier decision of mine and DUTJ Webb dated 31st July 2025, hereby annexed.
80. I re-make the decision by allowing SM’s appeal against the Secretary of State’s decision of 15th February 2024 on Article 8 ECHR grounds with the Appellant meeting the statutory exceptions contained in s.117C(5) and in the alternative, s.117C(6) of the Nationality, Immigration and Asylum Act 2002 (as amended).


Sarah Pinder

Judge of the Upper Tribunal
Immigration and Asylum Chamber


12.01.2026


IN THE UPPER TRIBUNAL
IMMIGRATION AND ASYLUM CHAMBER
Case No: UI-2025-002048

First-tier Tribunal No: HU/52428/2024

THE IMMIGRATION ACTS

Decision & Reasons Issued:

31/07/2025

Before

UPPER TRIBUNAL JUDGE PINDER
DEPUTY UPPER TRIBUNAL JUDGE WEBB

Between

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Appellant in the UT / Respondent in the FtT
and

S M
(ANONYMITY ORDER MADE)
Respondent in the UT / Appellant in the FtT

Representation:
For the Appellant: Ms H Gilmour, Senior Presenting Officer.
For the Respondent: Mr A Maqsood, Counsel instructed through public/direct access.

Heard at Field House on 4 July 2025

Order Regarding Anonymity

Pursuant to rule 14 of the Tribunal Procedure (Upper Tribunal) Rules 2008, the Appellant is granted anonymity.

No-one shall publish or reveal any information, including the name or address of the Appellant, likely to lead members of the public to identify the Appellant. Failure to comply with this order could amount to a contempt of court.


DECISION AND REASONS
1. For ease of reference, we will refer to the parties as they appeared at first instance, namely the Secretary of State as the Respondent in the FtT and SM as the Appellant in the FtT.
2. The Respondent appeals the decision of the First-tier Tribunal (‘the FtT’). On 24th February 2025, the FtT allowed the Appellant’s appeal against the Respondent’s decision of 15th February 2024 refusing the Appellant’s human rights claim. The Respondent had issued a decision to make a deportation order on 24th October 2006 to deport the Appellant from the UK.
3. We have decided to maintain the Anonymity Order in favour of the Appellant SM. We have determined that the specific facts of this appeal justify derogation from the principle of open justice. In particular, the Appellant has two children, one of whom is still a minor, and there are real and justified concerns that identifying the Appellant in any publication or reporting of this decision is likely to be accessed by the Appellant’s children and those close to the family, thereby likely to cause harm to the Appellant’s younger child.
Factual background and procedural history
4. The Appellant is a national of Pakistan, who entered the UK on a spousal visa on 8th November 2001. On 9th January 2003, the Appellant was granted Indefinite Leave to Remain (‘ILR’). In so far as is relevant to this appeal, the Appellant was convicted, of false imprisonment on 21st October 2005. For this offence, the Appellant was sentenced to 1 year and 9 months’ imprisonment and following this offence, the Respondent issued the decision to make a deportation order on 24th October 2006 (‘the Respondent’s 2006 decision’).
5. Following the Appellant’s appeal against the Respondent’s 2006 decision, the FtT upheld the Respondent’s decision and the Appellant’s appeal was dismissed on 19th February 2007. Thereafter, the Appellant agreed to return to Pakistan and he left the UK through the voluntary returns procedure on 26th June 2007. The Respondent decided on 19th June 2007 not to issue a deportation order against the Appellant.
6. On 7th October 2007, the Appellant returned to the UK via Heathrow airport and the Appellant was permitted entry by the Immigration Officer, who endorsed the Appellant’s passport with an entry stamp displaying the date of entry of 7th October 2007. No restrictions on the Appellant’s entry were imposed on that date.
7. On 24th February 2015, the Appellant applied for his passport to be endorsed with a ‘no time limit’ stamp and following this application and enquiries made by the Respondent, the Respondent considered that the Appellant’s Indefinite Leave to Remain status had been “nullified” as a result of his departure from the UK. On 15th January 2019, the Appellant submitted a human rights claim based on his family and private life established in the UK. Following this application, the Respondent issued the Appellant with a notice informing him of the Respondent’s intention to deport the Appellant and the Appellant submitted written representations in response. On 15th February 2024, the Respondent refused those representations and also confirmed that this decision disposed of the Appellant’s 2019 application. This is the decision that the Appellant appealed to the FtT and which the FtT deemed amounted to a disproportionate interference with the Appellant’s human rights in their decision of 24th February 2025.
The decision of the First-tier Tribunal
8. At [11] and [17], the Judge recorded that the issues to be determined concerned the statutory exceptions to deportation, contained in s.117C(5) of the Nationality, Immigration and Asylum Act 2002 (‘the 2002 Act’) and specifically whether the Appellant’s deportation would be unduly harsh on his children, with whom the Respondent accepted that the Appellant has a genuine parental relationship. The Judge also identified that they would need to determine whether there were ‘very compelling circumstances’ over and above those statutory exceptions so as to render the Appellant’s deportation disproportionate under Article 8 ECHR.
9. The Judge went onto consider at [24]-[26] the first appeal decision in the Appellant’s case that arose in 2007. The Judge found that this acted as their starting point in the proceedings but that they were able to depart from those findings since a period of 15 years had elapsed since. In addition, a number of events had ensued which justified re-visiting the Appellant’s human rights claim. These included the fact that the Respondent had, following the Appellant’s voluntary return to Pakistan, decided not to issue the deportation order against him and had permitted the Appellant re-entry in October 2007. It was also relevant that the Appellant had had a second child born in the UK since his re-entry.
10. At [27]-[39], the Judge considered the parties’ submissions and evidence concerning the Appellant’s voluntary return to Pakistan, the Respondent’s decision-making surrounding this and his re-entry to the UK in 2007. The Judge found that contrary to the Respondent’s assertions, the Appellant was not informed on entry in 2007 that he no longer held lawful status in the UK. The Judge concluded at [35] that there was no evidence to support this submission. At [37], the Judge considered the Respondent’s submission that the Respondent had issued an exclusion order against the Appellant but noted that this order had not been disclosed by the Respondent nor was there any other documentary evidence of this order being made. The Judge also noted that on the Respondent’s case, this order was also made at a time after the Appellant had already been permitted to re-enter and there was therefore no evidence or authority as to its effect on the Appellant.
11. Lastly with regards to the rather unusual immigration history in this case, the Judge considered at [39] the Appellant’s competing submission that the Respondent was in effect barred from issuing the further decision to instigate deportation action against the Appellant but the Judge did not agree and concluded that there was nothing before them to support the submission that the Respondent cannot now issue a deportation order based on the same criminal conviction of the Appellant’s from 2005.
12. Taking this forward, the Judge went on to consider the exception contained in s.117C(5) of the 2002 Act and whether the Appellant’s deportation would be unduly harsh on the Appellant’s second child, who is still a minor. The Judge found that this exception was met by the Appellant at [40]-[48].
13. The Judge then considered at [49]-[53] whether or not the Appellant met the exception contained in s.117C(4) of the 2002 Act, namely whether the Appellant has been lawfully resident in the United Kingdom for most of his life. If so, whether the Appellant is socially and culturally integrated in the United Kingdom, and there would be very significant obstacles to his integration in Pakistan upon being deported. The Judge found in favour of the Appellant on the first part of the first limb, namely that he had been lawfully resident in the UK but that this had not amounted to half of his life. The Judge found therefore that the Appellant could not meet this exception.
14. The Judge then went on to consider, in the alternative, whether the Appellant could demonstrate very compelling circumstances over and above the first two statutory exceptions to deportation (contained in s.117C(5)) such that maintaining the Respondent’s decision would be contrary to the Human Rights Act 1998 by reason of it being a disproportionate interference with rights protected by Article 8 of the ECHR, pursuant to s.117C(6) of the 2002 Act (‘the very compelling circumstances test’). The Judge set out their findings on this higher threshold at [54]-[55] also finding in favour of the Appellant. We will return to the Judge’s findings on the thresholds contained in s.117C(5) and (6) as part of our analysis of the Respondent’s grounds of appeal set out below.
The Appellant’s appeal to the Upper Tribunal
15. The Respondent raised three grounds of appeal, which can be summarised as follows:
(a) Ground 1 – the Judge materially misdirected themselves in law, reversing the burden of proof when considering whether the Appellant’s deportation would be unduly harsh on his minor child under s.117C(5) and applying the incorrect test when assessing whether or not there were very compelling circumstances under s.117C(6);
(b) Ground 2 - the Judge failed to provide adequate reasons, in support of their conclusion that the Appellant’s deportation would be unduly harsh on his child and similarly that there were very compelling circumstances;
(c) Ground 3 – the Judge has taken irrelevant matters into account or the Judge’s reasons are irrational. This relates to the Judge attaching weight to the fact that the Appellant’s second child was born after his re-entry into the UK and to the Respondent’s decision-making leading to the Appellant’s re-entry.
16. The Respondent secured permission to appeal from a different judge of the FtT in the following terms:
“There is an arguable error of law at [47] where it is stated that the respondent has failed to qualify on what basis it would not be unduly harsh for a British child to relocate to another country, suggest an incorrect burden of proof has been applied. It is arguable that the ‘elevated threshold’ has not been considered at this point. There is an arguable error of law as to the appellant’s lawful re-entry [55] being an error of law, in that there are inadequate reasons as to the relevance of this under section 117C and the subsequent consideration under Article 8 [59].”
17. In response, the Appellant filed and served a reply under Rule 24 of the Procedure Rules, together with a skeleton argument. However, this was not filed and served until 3rd July 2025, the day before the hearing. Ms Gilmore did not have any objections to this reply being admitted and confirmed that she had had sufficient time to consider the same. In those circumstance, we admitted the Appellant’s reply and skeleton argument.
18. At the hearing, both parties’ advocates made further oral submissions on each of the grounds of appeal pursued by the Respondent. Mr Maqsood, on behalf of the Appellant, defended the First-tier Tribunal’s decision and elaborated on his Rule 24 response. We have addressed the parties’ respective written pleadings and oral submissions in the section below when setting out our analysis and conclusions. At the end of the hearing we reserved our decision and provide this below with our reasons.
Analysis and conclusions
The Respondent’s first ground of appeal – the Judge’s unduly harsh and very compelling circumstances assessments
19. With regards to the submissions made by the Respondent on the Judge’s assessment of the ‘unduly harsh’ test, we agree with the Appellant that the sentence at [42] relied upon by the Respondent at para 6 of her grounds is only partly cited and the Judge summarised there the Respondent’s submissions on the issue. At [42], the Judge stated as follows:
“The respondent's position is that neither of the exceptions apply to the appellant, they accept he has a genuine and subsisting relationship with his two children and they do not dispute this relationship, but they say the test to be considered is whether separating him from his children would be unduly harsh. It is said that the evidence provided from the appellant is a statement from his which is undated and from his daughter there is a statement from September 2018, it is suggested that this is insufficient to establish that his children will face unduly harsh difficulties if the appellant is removed. The appellant is no longer in a relationship with their mother and they reside with her and have a large network in the UK. It is conceded that the appellant provides them with support but that this can continue whilst he resides in Pakistan”.
20. It is clear from the above that this is a summary of the Respondent’s submissions and the Judge’s findings on the issue do not start until [45] onwards. The criticism at para 6 that this is a cause for concern is not therefore made out.
21. We do agree however with the Respondent’s remaining submissions under this ground. The Respondent complains that the Judge reversed the burden of proof at [47] when stating that “(t)he respondent has failed to qualify on what basis they say it would not be unduly harsh for a British citizen child to relocate to another country.” We agree that this sentence, at the start of [47] in the Judge’s decision and embedded within her findings, raises a concern that the Judge misdirected herself. We are satisfied that this, together with an absence of consideration of the elevated threshold in issue at [47] and [48], amounts to a material error of law.
22. Whilst the Judge has made findings, which were open to them, on the Appellant’s child’s “significant maternal family network in the UK” and the relationship between the Appellant and his child, we do not consider that they have engaged with whether or not the elevated threshold that is embedded in the unduly harsh test is met by the Appellant. At [47], the Judge concluded that “(w)hen a child such as this has such a significant network in the UK and is at a particular juncture in his education I can only find that it would be unduly harsh for him to be expected to relocate and lose the educational benefits and significant family network he has as a British citizen”.
23. Similarly, when noting that the Appellant was permitted re-entry to the UK by the Respondent, which in turn indirectly permitted him to have his second child in the UK, the Judge makes findings in general terms and does not set out adequate reasoning as to why this would be unduly harsh for this child.
24. Concerning the Judge’s assessment of the very compelling circumstances and the Respondent’s submissions on this orally and at paras 10-11 of her grounds of appeal, we also agree that the Judge misdirected themselves when finding at [55] that “(g)iven my finding above that the appellant meets EX.2 of the exceptions to deportation I find that this factor alone is a very compelling circumstance”.
25. The authorities make it clear that the considerations under Exceptions 1 and 2 in ss.117C(4) and 117C(5) of the 2002 Act can be relevant to the ‘very compelling circumstances’ test. At [37] of NA (Pakistan), Jackson LJ concluded that:
“37. In relation to a serious offender, it will often be sensible first to see whether his case involves circumstances of the kind described in Exceptions 1 and 2, both because the circumstances so described set out particularly significant factors bearing upon respect for private life (Exception 1) and respect for family life (Exception 2) and because that may provide a helpful basis on which an assessment can be made whether there are “very compelling circumstances, over and above those described in Exceptions 1 and 2” as is required under section 117C(6). It will then be necessary to look to see whether any of the factors falling within Exceptions 1 and 2 are of such force, whether by themselves or taken in conjunction with any other relevant factors not covered by the circumstances described in Exceptions 1 and 2, as to satisfy the test in section 117C(6).”
26. The above cited guidance is also of course relevant to ‘medium offenders’, who have been sentenced to periods of imprisonment of less than four years and who seek to rely on s.117C(6) in the alternative, as was the case with this Appellant.
27. Thus, the Judge took a relevant matter into consideration when assessing the ‘very compelling circumstances’ test and taking their findings forward in relation to the ‘unduly harsh’ test contained in s.117C(5). However, it follows from our findings above on the Respondent’s first ground of appeal, that the Judge’s assessment under s.117C(6) will have been impacted by the errors made by the Judge when considering the unduly harsh test.
28. We also consider that the Judge at [55] did not go onto consider whether or not the Judge’s findings on the unduly harsh test were “of such force, whether by themselves or taken in conjunction with any other relevant factors not covered by the circumstances described in Exceptions 1 and 2, as to satisfy the test in section 117C(6)”, pursuant to Jackson LJ’s guidance cited above (emphasis added). The Judge’s consideration of the test contained in s.117C(6) is very brief at [54] and [55] and there is little analysis as to why the factors listed there met the undoubtedly high threshold of ‘very compelling circumstances’ – see Jackson LJ at [33] of NA (Pakistan) and Lord Reed at [38] in Hesham Ali v Secretary of State for the Home Department [2016] UKSC 60; [2016] 1 WLR 4799.
29. For the reasons above, we are satisfied therefore that the Judge has made material errors of law for the reasons set out by the Respondent at paras 7-12 of her grounds of appeal.
30. We note for completeness, as it is relevant to the Respondent’s arguments on burden of proof, that the section of the Judge’s decision containing the relevant legal framework appears to contain paragraphs that are not relevant to this appeal – see [18] with the wrong standard of proof detailed, [19] relating to para 353 of the Immigration Rules and fresh claims and [20] on the well-established authority of Tanveer Ahmed, which does not appear to have been relevant to the issues in dispute in these proceedings. Had the Judge directed themselves correctly on the relevant issues, these three paragraphs may not in themselves have been sufficient to raise concern but taken together with the matters that we have set out above, this further supports the Respondent’s position.
The Respondent’s second and third grounds of appeal
31. In light of our conclusions above, it is not necessary for us to address the Respondent’s remaining grounds in much detail. We have already noted at paras 22-23 and 28 that the Judge’s findings concerning the impact on the Appellant’s child of his deportation and how this also amounts to very compelling circumstances, were in general terms and did not stipulate how in the Judge’s view these factors met the elevated and high thresholds in issue. This is in our view sufficient to dispose of the Respondent’s second and third grounds of appeal.
32. We do not consider however that it was irrational of the Judge to take into consideration the circumstances surrounding the Appellant’s re-entry into the UK. This is clearly an unusual case and the factual background surrounding the Appellant’s departure from the UK, his subsequent re-entry and the Respondent’s decision-making in relation to the Appellant thereafter were clearly relevant matters to consider. For the reasons above however, the Judge’s findings on these issues are unsafe and we are satisfied that the Judge has materially erred in law accordingly.
33. The FtT’s decision to dismiss the appeal is therefore set aside pursuant to s.12(2)(a) of the Tribunals, Courts and Enforcement Act 2007.
34. The Judge’s findings on the Appellant’s previous appeal determination and the circumstances surrounding his departure from the UK and subsequent re-entry set out at [24]-[39] are preserved on the basis that the Respondent has not sought to challenge these findings. For the avoidance of doubt, the finding that the Appellant has a genuine parental relationship with his youngest child is also preserved since that was an issue accepted by the Respondent.
35. In light of the above and pursuant to the guidance in para 7 of the Senior President's Practice Statement as well as the guidance in AEB v Secretary of State for the Home Department [2022] EWCA Civ 1512 and Begum (Remaking or remittal) [2023] UKUT 46 (IAC), we consider it appropriate for the appeal to be retained in the Upper Tribunal for re-making.
Notice of Decision
36. The decision of the FtT dated 24th February 2025 contained material errors of law and is set aside. The FtT’s findings of fact referred to at para 34 above are preserved.
37. This matter is retained in the Upper Tribunal and the issues that remain to be determined by this Tribunal are:
(a) Whether the Appellant’s deportation from the UK would be unduly harsh on his youngest child, a British citizen;
(b) In the alternative, whether the Appellant has demonstrated very compelling circumstances over and above the first two statutory exceptions to deportation (contained in s.117C(5)) such that maintaining the Respondent’s decision would be contrary to the Human Rights Act 1998 by reason of it being a disproportionate interference with rights protected by Article 8 of the ECHR, pursuant to s.117C(6) of the 2002 Act.
38. Both parties are to carefully consider and respond to the following directions:
(a) Both parties (the Appellant and the Respondent) are to send to the Upper Tribunal and to the other side any updating evidence, upon which they each seek to rely, to include any applications under Rule 15(2A) of the Procedure Rules within 28 days of this decision being sent;
(b) If the Appellant does not intend to be legally represented at the next hearing and if the Appellant requires an interpreter in order to participate in the appeal hearing, he is to confirm his need for an interpreter and the language within 28 days of this decision being sent;
(c) If the Appellant will be legally represented at the next hearing and in the event that the Appellant is to give oral evidence, the Appellant is to make any requests that may flow from his planned attendance (e.g. for an interpreter) within 28 days of this decision being sent;
(d) Both parties (the Appellant and the Respondent) are to send to the Upper Tribunal and to the other side a skeleton argument, setting out in summary and in writing their legal and factual arguments in support of their respective positions no later than seven days before the next hearing;
(e) The appeal is to be re-listed for re-making, before UTJ Pinder and DUTJ Webb, with a time estimate of three hours, on the first available date after 6 weeks from the date of this decision.


Sarah Pinder

Judge of the Upper Tribunal
Immigration and Asylum Chamber


29.07.2025