Tribunal decisions

The decision

IN THE UPPER TRIBUNAL
IMMIGRATION AND ASYLUM CHAMBER
Case No: UI-2025-002054

First-tier Tribunal Nos: HU/01072/2022

THE IMMIGRATION ACTS

Decision & Reasons Issued:
On the 11 August 2025

Before

UPPER TRIBUNAL JUDGE LOUGHRAN

Between

Ervi Sanxhaku
(NO ANONYMITY ORDER MADE)
Appellant
and

The Secretary of State for the Home Department
Respondent

Representation:
For the Appellant: Mr P Georget of Counsel, instructed by Malik & Malik Solicitors
For the Respondent: Mr E Terrell, Home Office Presenting Officer

Heard at Field House on 8 July 2025

DECISION AND REASONS
1. The appellant appeals with the permission of First-tier Tribunal Judge Bulpitt, as then was, against the decision of First-tier Tribunal Judge Rodger (‘the judge’) dated 15 November 2023.
Background
2. The appellant is an Albanian national. He entered the UK illegally in the back of a lorry in May 2019. On 6 October 2020 he was encountered by the authorities and served with illegal entry notices.
3. On 1 February 2021 at Chester Crown Court, the appellant was convicted of possessing a controlled drug with intent to supply-Class A cocaine and driving a motor vehicle otherwise than in accordance with a licence and without insurance. He was sentenced to 40 months imprisonment.
4. On 25 March 2021 at Cheshire Magistrates Court, he was convicted of two counts of possession, control of false/improperly obtained identity document and was sentenced to six months imprisonment to run concurrently with his 40 months imprisonment.
5. On 11 August 2021 the appellant’s representative submitted representations asking that the appellant be granted leave to remain as the father of a child with indefinite leave to remain in the UK. On 8 September 2021 the appellant was served with a Stage 1 letter dated 25 July 2021 notifying him of a decision to deport him pursuant to the Immigration Act 1971 and the UK Borders Act 2017.
6. On 5 October 2021 the appellant’s representatives submitted representations addressing why he should not be deported.
7. On 19 June 2022 a deportation order was made in respect of the appellant and the respondent refused his human rights claim. The respondent considered that his deportation would not breach the UK’s obligations under Article 8 of the ECHR because the public interest in his deportation outweighed his right to a private and family life.
The Appeal Before the First-tier Tribunal
8. The appellant appealed against the refusal of his human rights claim and the appeal came before the judge on 2 November 2023. The appellant attended the hearing with three members of his family and gave evidence. The appellant was represented by Mr Georget of Counsel and the respondent was represented by Mr Banham, a Home Office Presenting Officer.
9. In a decision dated 9 November 2023 the judge dismissed the appellant’s appeal. The judge recorded that it was common ground that the appellant is a foreign criminal who had been sentenced to a period of 40 months imprisonment, that it was therefore accepted that he could not meet Exceptions 1 and 2 of Section 117C of the 2002 Act and that she was therefore required to consider whether his deportation was disproportionate.
10. The judge correctly proceeded on the basis that in order to assess deportation was disproportionate and/or whether there were very compelling circumstances, she was first required to consider the whether the appellant could meet the requirements of the exceptions. The judge recorded that Mr Georget accepted that the appellant could not meet the requirements of Exception 1 and found that this was an appropriate concession, giving clear reasons why she considered the appellant could not meet the requirements of Exception 1.
11. The judge made more detailed findings in respect of whether the appellant met the requirements of Exception 2 on the basis of his relationship with his daughter (‘A’), an Albanian national. The judge found the appellant to be credible and honest in his evidence as to his relationship with (‘A’) and found that he was in a genuine and subsisting parental relationship with her. The judge noted that A’s mother married a Romanian national on 11 October 2019 and she and A came to the UK on 13 October 2019. On 11 May 2021 A was granted indefinite leave to remain in the UK under the EU Settlement Scheme and her mother was granted pre-settled status on 19 January 2021. The judge recorded at the time of her decision A was 5 years old and attended school in the UK, lived with her mother, her mother’s husband and their son, A’s brother. Having considered the evidence before her, the judge concluded that it would not be unduly harsh for A to leave the UK and relocate to Albania and that it would not be unduly harsh for A to remain in the UK if the appellant was deported to Albania. The judge therefore considered that the requirements of Exception 2 had not been made out.
12. The judge went on to consider whether there are very compelling circumstances in the appellant’s case. She considered the public interest in the appellant’s deportation and noted that it was significant. In respect of whether there were very compelling circumstances, the judge considered that she was not able to find that the relationship and the effect of the separation on the appellant or A was capable of amounting, either individually or cumulatively with all the other circumstances relied on, to very compelling circumstances.
13. In conclusion, the judge considered her findings that Exceptions 1 and 2 did not apply and that there were no very compelling circumstances and concluded that therefore the respondent’s decision being maintained was a proportionate interference with the appellant’s right to respect for his family and private life.
The Appeal to the Upper Tribunal
14. The appellant lodged an appeal against the judge’s decision relying on one ground, that the judge erred in law in considering whether the impact on the appellant’s child would be unduly harsh. The appellant submitted that the approach adopted by the judge was to compare the circumstances of the child in this appeal to a notional comparator. Such an approach was said to run contrary to the guidance given in HA (Iraq) v the Secretary of State for the Home Department [2022] UKSC 22.
15. Permission to appeal was granted by the First-tier Tribunal on 8 January 2024 in the following terms:
“2. It is arguable that the two passages from [31] and [34] of the Judge’s decision identified in the grounds of appeal do, as asserted, indicate that the Judge adopted the ‘notional comparator’ test expressly disapproved by the Supreme Court in HA (Iraq) when considering whether the appellant’s deportation would be unduly harsh on his child notwithstanding the conscientious assessment undertaken by the Judge.
3. Whether such an arguable error if established would amount to a material error of law is far from obvious given that the appellant could not benefit from Exception 2 to deportation in any event. The Judge has undertaken with obvious care a comprehensive evaluation of the competing interests when undertaking her overarching proportionality assessment of the respondent’s decision. However, since at [46] the Judge explicitly incorporates her finding that deportation would not be unduly harsh on the appellant’s child into that evaluation. I am persuaded that it is arguable that any error in that unduly harsh assessment is material.”
16. Despite permission to appeal being granted on 8 January 2024 the decision was not communicated to the parties with directions until some time later. The respondent filed and served a response under rule 24 of the Tribunal Procedure (Upper Tribunal) Rules 2008 on 19 May 2025 (‘Rule 24 response’) opposing the appellant’s appeal.
17. At the hearing I heard submissions from Mr Georget on behalf of the appellant and Mr Terrell on behalf of the respondent. They are a matter of record so they are not repeated here. I have fully taken them into account.
Discussion
18. In HA (Iraq) the court rejected the argument that the unduly harsh test sets out a notional baseline comparator of any child or any child in that child’s circumstances and the consequences required to meet the test must go beyond the usual consequences for that baseline comparator child. The court’s reasons are set out in detail at paragraphs 31 to 45. In summary the court found that the baseline comparator approach was unworkable because:
“In reality there is no satisfactory way to define what the relevant characteristics of a notional comparator child”.
19. In any event the court considered a test involving a notional comparator child is potentially inconsistent with the duty to have regard to the best interests of the child in question as a primary consideration, in accordance with Section 55 of the Borders, Citizenship and Immigration Act 2009. The court considered that what is required is having “a clear idea of a child’s circumstances and of what is in a child’s bests interests in carrying out a careful examination of all relevant factors when the interests of the child are involved.” Further, the court considered that the notional comparator approach gives rise to the risk that a Tribunal could apply an impermissibly high exceptionality threshold by searching for particular features which take the facts of an individual’s child’s case outside the ordinary run of cases. The court considered that the relevant Tribunal was required to recognise that the unduly harsh test involved an elevated threshold and must then make an informed assessment of the effect of deportation on their child and to make a judgment as to whether that elevated standard had been met on the facts and circumstances of the case before it. Having rejected the Secretary of State’s case the court considered that the best approach was to follow the guidance which was said to be authoritative in KO (Nigeria) v SSHD [2018] UKSC 53, which is namely the MK (Sierra Leone) [2015] UKUT 223 self-direction:
“…’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.”
20. The appellant relies on two different parts of the judges decision to demonstrate that the judge applied a notional comparator test:
“31…’“However, there is nothing in any of the evidence before me which causes me to conclude that the effect of the appellant being deported on A would be anything other than a normal reaction of a child separated from a parent due to deportation.”
And
34. [A] is not likely to lose the love, support and devotion of her father and given that there is no evidence that her reaction to being separated from him for nearly 2 years was anything other or more severe than one would expect for a child separated from a parent for an extended period, I am not able to find that it would be unduly harsh on A for her to remain in the UK in the care of her mother, her main carer.”
21. In her rule 24 response, the respondent noted that the “two sentences suggest the Judge had in mind a notional comparator”, the judge “could have expressed herself better” and “the decision has echoes of the notional comparator approach.” However, the respondent submitted that the sentences relate to A’s emotional reaction, they are not evidence that the judge failed to faithfully follow her self-direction and it was not the approach the judge actually applied to the unduly harsh test. I am not persuaded by those submissions.
22. I note that the judge identified the correct test and that she had been assisted in the meaning of ‘unduly harsh’ by the relevant authorities. However, I am satisfied that the passages make it sufficiently clear that the judge did not apply the test correctly and adopted a notional comparator test to the appellant’s appeal.
23. The respondent submits, in the alternative, that if the judge did err in applying the notional comparator test it is immaterial in light of the judge’s extensive findings as to the actual circumstances that would face A if the appellant were to be deported. The respondent refers in particular to paragraphs 31-33 of the decision. However, paragraph 31 contains one of the sentences I have found demonstrates that the judge used the notional comparator test. That passage is an assessment of the evidence. I am therefore satisfied that the judge’s application of a notional comparator test infected her assessment of the evidence before her and her examination of all the relevant factors. I am satisfied that the judge applied an impermissibly high exceptionality threshold by searching for particular features which would take the facts of A’s case outside the ordinary run of cases. Accordingly, I find that the error is material.
24. The judge’s consideration of whether the appellant met the requirements of Exception 1 is not infected by the error. However, her consideration of the requirements Exception 2 and whether there are very compelling circumstances are infected by the error.
Conclusion
25. Looked at as a whole, I am satisfied that the judge materially erred in law by applying the notional comparator test and that the decision should be set aside.
26. I am satisfied that that the judge’s findings that the appellant did not meet the requirements of Exception 1 can be preserved.
27. Applying the guidance in paragraph 7 of the Senior President’s Practice Statement and AEB v Secretary of State for the Home Department [2022] EWCA Civ 1512 and Begum (Remaking or remittal) [2023] UKUT 00046 (IAC), given the issues and the amount of fact-finding that will be required to do, I consider that the appeal should be remitted to the First-tier Tribunal.
Notice of Decision
(a) There is an error of law in the decision of the First-tier Tribunal. Accordingly the decision of the First-tier Tribunal is set aside.
(b) The decision will be remitted to the First tier Tribunal to be heard by a different judge.
(c) The finding that the appellant does not meet the requirements Exception 1 is preserved.

G. Loughran

Judge of the Upper Tribunal
Immigration and Asylum Chamber

1 August 2025