Tribunal decisions

The decision

IN THE UPPER TRIBUNAL
IMMIGRATION AND ASYLUM CHAMBER Case No: UI-2025-002082
First-tier Tribunal No: HU/01719/2022

THE IMMIGRATION ACTS

Decision & Reasons Issued:

On 25th of March 2026

Before

UPPER TRIBUNAL JUDGE KAMARA

Between

AS
(ANONYMITY ORDER MADE)
Appellant
and

Secretary of State for the Home Department
Respondent
Representation:
For the Appellant: In person
For the Respondent: Ms S Rushforth, Senior Home Office Presenting Officer

Heard at Cardiff Civil Justice Centre on 18 March 2026

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
Introduction
1. In a decision issued on 8 January 2026 following an error of law hearing, the Upper Tribunal set aside the decision of the First-tier Tribunal issued on 13 January 2025, allowing the appellant’s appeal against a decision of the Secretary of State dated 1 April 2022 refusing his human rights claim.
2. None of the First-tier Tribunal’s findings of fact were preserved, and the appeal was retained in the Upper Tribunal for remaking.
Anonymity
3. I have continued the anonymity order made by the First-Tier Tribunal. I have considered the public interest in open justice but conclude that it is outweighed by the importance of protecting sensitive information relating to the appellant’s former partner and children.
Factual Background
4. The appellant is a national of Spain now aged 60, who accompanied his parents to the United Kingdom in 1966, when he was aged less than two weeks old. He has lived here ever since.
5. The appellant has acquired a range of convictions, starting from criminal damage and failing to surrender to bail in 1983 to offences of drunk driving, being uninsured and a failure to stop. Most of his more serious convictions concern possessing controlled drugs with intent to supply.
6. The Home Office first decided to deport the appellant by way of a decision dated 15 October 2015. The appellant’s appeal against that decision was successful, with the judge finding that he had resided in the United Kingdom since he was a small infant, that he had been exercising Treaty rights by working and was entitled to the highest level of protection from deportation. The judge’s conclusion was that there was insufficient evidence that the appellant represented a genuine, present and sufficiently serious threat to public security. That decision was made on 26 January 2016.
7. As indicated above, the appellant continued to offend after his appeal was allowed. In October 2020 and January 2021, the appellant was convicted of several counts of possession of class A drugs with intent to supply. He was subsequently sentenced to concurrent terms of seven years’ imprisonment.
8. On 24 November 2021, the Home Office wrote to the appellant enclosing a Notice of a Decision to make a Deportation Order. The said letter invited the appellant to provide reasons why he should not be deported. There was no response to this communication.
9. The appellant made an application under the EU Settlement Scheme on DDATE. That application was rejected as invalid by way of a letter dated 26 March 2024. The reason for that conclusion was that the appellant had not provided proof of his identify and nationality with his application.
10. On 1 April 2022, a Deportation Order was made by virtue of section 32(5) of the UK Borders Act 2007 and on the same date a decision was made to refuse a human rights claim. This is the decision under challenge.
11. In the decision of 1 April 2022, the respondent concluded that the Immigration (European Economic Area Regulations) 2016 did not apply to the appellant because there was no evidence that he was lawfully resident in the UK immediately prior to 2300 GMT on 31 December 2020 by virtue of the said Regulations, nor that he had an outstanding application under the EU Settlement Scheme. His deportation was, therefore, pursued solely under the Immigration Act 1971 and UK Borders Act 2007. As the appellant had not taken up the opportunity to make representations, the respondent gleaned information from the First-tier Tribunal decision allowing the appellant’s appeal and took the earlier findings as a starting point.
12. Given the length of the appellant’s most recent prison sentence, considered with his earlier extensive offending, the respondent considered that his deportation was conducive to the public good, that the Exceptions to deportation did not apply and that there were no very compelling circumstances which outweighed the public interest in his deportation.
13. The appellant made a second application under the EU Settlement Scheme, which the respondent refused on 12 December 2024. The appellant did not appeal that decision.
The remaking hearing
14. The matter comes before the Upper Tribunal to determine whether the appellant’s case should be considered under the 2016 Regulations, applying the conclusions in Abdullah and Ors (EEA; deportation appeals; procedure) [2024] UKUT 00066, or alternatively whether there are very compelling circumstances over and above the Exceptions to deportation which render his deportation disproportionate.
15. Correspondence and documents have been sent to the Upper Tribunal at various times, by the appellant, his former partner and his probation officer. 156 pages of loose documents were scanned and placed on the Upper Tribunal’s database on 11 February 2026 which I will summarise here. Enclosed were strongly supportive very recent references from the appellant’s adult children (C1 & C2), his minor child (C3) and his former partner (FP). FP referred to receiving a 2020 diagnosis of a rare neuromuscular condition for which she needs regular blood transfusions and requires her to sleep with a ventilator. Confirmation of this diagnosis was provided by her consultant who also refers to FP having declining mobility, receiving counselling and being prescribed antidepressants. There is further confirmation of the state of the former partner’s mental health in the form of a recent letter from a counselling service which she has used for many years, and which also describes a series of challenges she has experienced. C3 is a carer for FP and there is supporting evidence from the school as well as their support worker recognising C3 as a young carer.
16. Enclosed in the aforementioned documents is a supportive reference from a Civil Engineer who met the appellant when the latter was in prison and worked with him on a project when the appellant was released on Temporary Licence between 2023 and 2024. There are many other positive testimonies from people who have worked with the appellant in recent years.
17. It seems from the documents and descriptions of the appellant that an attempt was made to remove him to Madrid in January 2024. The appellant states that he seeks damages for his detention and being prevented from working. Those are not matters within the jurisdiction of this tribunal. Otherwise, the appellant has produced his bank statements which are unremarkable other than that they show that his brother is providing him with financial support.
18. The Tribunal has also considered the error of law bundle provided by the respondent which contains, inter alia, the core documents in the appeal before the First-tier Tribunal, including the appellant’s and respondent’s bundles of evidence. The Tribunal was also assisted by a skeleton argument from the respondent.
19. The hearing was attended by the appellant, FP and their eldest daughter C1. Their son, C2 was unable to attend the hearing as he was abroad however, the Tribunal had the benefit of viewing a 5-minute video which he recorded. C3 was, as could be expected given her age, attending school at the time of the hearing.
20. I heard evidence from the appellant and FP as well as submissions from Ms Rushforth. On the 2016 Regulations point, Ms Rushforth relied upon her skeleton argument. As for the domestic deportation regime, Ms Rushforth accepted that the appellant satisfied the first part of Exception 1 in that he had been lawfully present in the United Kingdom for more than half of his life. In addition, while not conceding the point, Ms Rushforth did not seek to an advance the argument that the appellant was not socially and culturally integrated in the United Kingdom. Nor did Ms Rushforth submit that it would not be unduly harsh for C3 to accompany the appellant to Spain. Therefore, the issues which remained in dispute were whether there were very significant obstacles to the appellant’s integration in Spain, whether it would be unduly harsh for C3 to remain in the United Kingdom without the appellant and whether there were very compelling circumstances. The appellant and FP took the opportunity to reply to Ms Rushforth’s submissions.
21. At the end of the hearing, I reserved my decision.
Discussion
The legal framework
22. The first issue identified by the respondent in her skeleton argument was whether the appellant’s appeal should be dealt with under the domestic regime or the 2016 Regulations as saved owing to his pre-specified date conduct. The second, related, issue is whether even if the appellant’s appeal came under the Regulations, he should be permitted to pursue it.
23. The appellant’s offences were carried out prior to the relevant date of 31 December 2020 and as such the following extract from the headnote in Abdullah & Ors is relevant to the appellant’s circumstances :
(C) In respect of conduct carried out prior to 31 December 2020, the EEA Regulations only apply directly to an individual (and thus gave rise to an appeal under those regulations) if:

(1) The decision was taken under the EEA Regulations prior to 31 December 2020 or in connection with an application pending under the regulations; or,
(2) The individual was an EEA citizen (or a family member of such a person) lawfully resident under the EEA Regs (including those who had acquired permanent residence under reg 3. the EEA Regulations) and either:
(i) The decision was taken by 30 June 2021; or
(ii) Was taken after that date but when a valid application under the EUSS had been made before 30 June 2021 and was still pending (but not if they had been granted leave under the EUSS); or
(3) Is a person who falls within the scope of the CRRE Regulations
24. Having been guided by Abdullah and Ors, I conclude that, despite the appellant’s last offences being committed in 2019 and October 2020, the appellant’s case does not fall under the Regulations because the decision was not taken under the Regulations prior to 31 December 2020, nor was it taken by 30 June 2021 and nor had the appellant made a valid application before 30 June 2021. Furthermore, the deportation decision was made after 30 June 2021 and as the appellant only made a valid application for leave to remain under the EUSS on 22 April 2024, no in-time application for leave to remain under the EUSS was made.
25. Addressing the second issue even if the Citizens’ Rights (Restrictions of Rights of Entry and Residence) (EU Exit) Regulations were directly applicable, the appellant did not appeal the decision refusing EUSS leave. I should add that the appellant did not disagree with the respondent’s view when asked to address the scope of the appeal during the remaking hearing. I therefore conclude that the domestic regime applies to this case.
26. Section 117C sets out the particular considerations in cases involving foreign criminals (and these considerations have been incorporated into the Immigration Rules in Part 13).
27. The considerations are:
(1) The deportation of foreign criminals is in the public interest.
(2) The more serious the offence committed by a foreign criminal, the greater is the public interest in deportation of the criminal.
(3) In the case of a foreign criminal (“C”) who has not been sentenced to a period of imprisonment of four years or more, the public interest requires C’s deportation unless Exception 1 or Exception 2 applies.
(4) Exception 1 applies where—
(a) C has been lawfully resident in the United Kingdom for most of C’s life,
(b) C is socially and culturally integrated in the United Kingdom, and
(c) there would be very significant obstacles to C’s integration into the country to which C is proposed to be deported.
(5) Exception 2 applies where C has a genuine and subsisting relationship with a qualifying partner, or a genuine and subsisting parental relationship with a qualifying child, and the effect of C’s deportation on the partner or child would be unduly harsh.
(6) In the case of a foreign criminal who has been sentenced to a period of imprisonment of at least four years, the public interest requires deportation unless there are very compelling circumstances, over and above those described in Exceptions 1 and 2.
(7) The considerations in subsections (1) to (6) are to be taken into account where a court or tribunal is considering a decision to deport a foreign criminal only to the extent that the reason for the decision was the offence or offences for which the criminal has been convicted.
28. The appellant was sentenced to more than four years’ imprisonment, and as such falls within s.117C(6) NIAA 2002 and must demonstrate not just that he meets Exception 1 and/or that the effect of his deportation on his minor child is ‘unduly harsh’, as in Exception 2, but that there are ‘very compelling circumstances, over and above’ such effects.
29. Section 117C (6) requires a balancing assessment weighing the interference with the article 8 rights of the appellant and his family against the public interest in his deportation. The test under Section 117C (6) involves an appropriately high threshold, 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.
30. In NA (Pakistan) [2016] EWCA Civ 662 at [33], it was held that there is no exceptionality test but considered that the cases in which circumstances are sufficiently compelling to outweigh the high public interest in deportation will be ‘rare.’
31. Relevant to the appellant’s case is what was said at [30] of NA:
In the case of a serious offender who could point to circumstances in his own case which could be said to correspond to the circumstances described in Exceptions 1 and 2, but where he could only just succeed in such an argument, it would not be possible to describe his situation as involving very compelling circumstances, over and above those described in Exceptions 1 and 2. One might describe that as a bare case of the kind described in Exceptions 1 or 2. On the other hand, if he could point to factors identified in the descriptions of Exceptions 1 and 2 of an especially compelling kind in support of an Article 8 claim, going well beyond what would be necessary to make out a bare case of the kind described in Exceptions 1 and 2, they could in principle constitute "very compelling circumstances, over and above those described in Exceptions 1 and 2", whether taken by themselves or in conjunction with other factors relevant to application of Article 8.
32. In HA (Iraq) [2022] UKSC 22, it was emphasised that all the relevant circumstances of the case must be considered and weighed against the very strong public interest in deportation. In relation to rehabilitation, the Court said at [58]:
‘(i)n a case where the only evidence of rehabilitation is the fact that no further offences have been committed then, in general, that is likely to be of little or no material weight in the proportionality balance.’
33. The case-law of the European Court of Human Rights continues to be relevant to the factors which must be considered, with reference to the cases of Unuane v United Kingdom (2021) 72 EHRR 24, Boultif v Switzerland (2001) 33 EHRR 50 and Üner v The Netherlands.
34. The relevant factors are as follows:
(a)Nature and seriousness of the offence(s) committed by the intended deportee.
(b)Length of time that the intended deportee has remained in the UK.
(c)Time elapsed since the offending and conduct in that period.
(d)Nationalities of those affected by the decision.
(e)The family circumstances of the intended deportee.
(f) Whether a spousal relationship was formed at a time when the spouse was aware of the offending.
(g)Whether there are children of the marriage and their ages.
(h) Seriousness of the difficulties faced by the intended deportee in the country to which he/she would be expelled.
(i) Best interests and well-being of the children, in particular the seriousness of the difficulties which they would face in the country to which the intended deportee would be expelled.
(j) Extent of the intended deportee’s social, cultural and family ties with the host country and country of destination.
35. I am guided by the principles in Zoumbas [2013] UKSC 74, including the need to consider firstly the best interests of the child affected by the outcome in this case, the need to clearly evaluate the child’s circumstances before deciding that they are outweighed, that emotional as well as physical harm is relevant and that the children must not be blamed for the conduct of the appellant.
36. In considering Exception 1, the term ‘very significant obstacles’ is defined as being ‘enough of an insider’ to form a meaningful private life there, applying Kamara [2016] EWCA Civ 813. The issue of whether there are very significant obstacles to the appellant’s reintegration in Spain, as a European country, must be considered in light of the judgment in Ackom [2025] EWCA Civ 537.
37. When considering the meaning of unduly harsh, I am further guided by what is said in MK (Sierra Leone) [2015] INLR 563, cited with approval in HA 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.
38. In relation to the term ‘very compelling circumstances,’ at [28] of Garzon [2018] EWCA Civ 1225, it was said that ‘very’ imports a very high threshold and ‘compelling’ means circumstances which have a ‘powerful, irresistible and convincing effect.’
39. In NA (Pakistan) [2016] EWCA Civ 662 the very compelling circumstances was described as an extremely demanding test requiring a wide-ranging exercise so as to ensure a result compatible with Article 8. An holistic evaluation of all relevant factors is required including those which might have already been assessed in the context of the Exceptions to deportation and must include an application of the principles in the Strasbourg authorities.
40. In Kapikanya [2025] EWCA Civ 987 at [42] the following observation is made:
I have already noted that NA (Pakistan) makes it clear that it is possible for very compelling circumstances to be found notwithstanding that the Appellant cannot satisfy either Exception 1 or Exception 2. But that does not give the FTT a general licence to bypass Exception 1 and Exception 2 and go straight to considering very compelling circumstances. To do so would be to undermine the clear parliamentary intent and to deprive the phrase "over and above" those described in Exceptions 1 and 2 of much if not all of its meaning. Particularly in the case of a serious offender, the circumstances of a case where Exceptions 1 and 2 can simply be bypassed must in my view be wholly exceptional…
Analysis
41. Applying Devaseelan* [2002] UKIAT 00702, the starting point for the consideration of this appeal is the decision of the First-tier Tribunal promulgated on 29 January 2016 in which the appellant’s appeal against the decision to deport him was allowed after consideration of his rights as a European national. At [22] of that decision the judge found the appellant to have only a ‘casual relationship with the truth.’ The judge rejected the appellant’s account of his relationship with his former partner and children and did not accept that the appellant was without family or support in Spain.
42. Notwithstanding those findings, the previous judge found, based on the documentary evidence adduced, that the appellant had resided in the United Kingdom for his ‘entire life’, specifically since 1966 and was entitled to the maximum level of protection against deportation, which led to the appeal being allowed.
43. In reaching this decision, I have taken into consideration sections 117B and 117C of the 2002 Act, as amended as well as all the jurisprudence, the evidence and submissions, both oral and written, even where not expressly mentioned.
44. Having had the benefit of hearing the appellant give evidence, I have concerns as to the truthfulness of some of his claims. For instance, he quickly volunteered that he had never left the United Kingdom. When pressed on this by me, in view of his years of working on a cruise ship, the appellant readily accepted that he had indeed left the United Kingdom. It was a similar story when it came to his account of his visits to Spain. He initially denied having done so. During cross-examination, when reminded of the findings of the previous judge, the appellant accepted that he had taken at least one holiday in Spain. When FP gave evidence she indicated that she recalled at least two family holidays to Spain. The appellant suggested that the inconsistent evidence and gaps in his memory were owing to substance abuse. I note that there is no medical evidence relating to the appellant. Owing to the manner in which the appellant gave evidence, I am only prepared to accept aspects of his account which are supported by a reliable source.
45. I found FP to be a witness of truth. Her evidence was measured but brutally honest and gave some insight into the appellant’s character, current conduct and involvement with the family. FP was also able to assist in areas of the evidence where the appellant’s account contained inconsistencies. I would add that there was no criticism of FP’s evidence on behalf of the respondent. Nor was there any criticism by Ms Rushforth of the content of the video evidence from C2. Some of C2’s video addressed issues which were irrelevant to these proceedings, but what he had to say about the appellant’s involvement in his life and that of his family was detailed and there is no reason to cast doubt upon it.
Exception 1
46. In view of the respondent’s submissions, I will focus on the third criterion under Exception 1, that is whether there are very significant obstacles to the appellant’s integration in Spain. I would only add that there is no reason to depart from the findings of the previous judge as to the appellant’s residence in the United Kingdom since 1966. I heard no submissions from the respondent in relation to integration. In any event, notwithstanding the appellant’s offending, I accept that he is socially and culturally integrated in the United Kingdom. The appellant gave a credible account of his education and work in the United Kingdom over six decades, his family life with FP and his three children and there are, in addition, numerous supporting letters attesting to his hard work, particularly of late.
47. I find that the appellant speaks a level of Spanish and that he has visited Spain for holidays with his family. I am prepared to accept that the appellant may not be fluent in Spanish given that he has never lived there since arriving in the United Kingdom 60 years ago. I also accept that his parents are deceased, that he has no living relatives in Spain and that he speaks English with his children. I understand that the appellant has one sibling who resides in the United Kingdom.
48. To be fair to the appellant, he did not criticise the health or welfare system in Spain or suggest that he would experience serious human rights abuses there. Instead, his case concerns his ability to obtain work at his age. Given that the appellant’s employment in the United Kingdom has mainly consisted of working as a labourer on building sites, I accept that it is likely that he will struggle to obtain manual work aged 60 and with less than fluent Spanish. Other than experiencing addiction to alcohol and drugs, the appellant reports being in good health. Indeed, it was apparent from his oral evidence that his efforts to become fit and health were a source of pride for him.
49. I accept that the absence of current familial links to Spain and poor prospects of employment will amount to obstacles to the appellant’s integration. I am not , however, persuaded that these obstacles are very significant such that the appellant would not be able to overcome them, applying Kamara. I also bear in mind that removal would be to a European country with cultural similarities with the United Kingdom, following Ackom. The appellant therefore does not meet the requirements of Exception 1 to deportation.
Exception 2
50. The next question to be considered, given the focus of this appeal, is whether the effect of deportation would be unduly harsh upon the appellant’s minor daughter C3 as required by Exception 2. As indicated above, it is not contended by the respondent that it would not be unduly harsh for C3 to accompany the appellant to Spain.
51. In HA (Iraq) [2022] UKSC 22 and KO (Nigeria) the Supreme Court endorsed what the Upper Tribunal said in MK (section 55 – Tribunal options)[2015] UKUT 223 (IAC) [at 46] 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.’
52. The Supreme Court also endorsed the finding of the Court of Appeal in HA that undue harshness should not be evaluated with reference to the distress that ‘any child’ might face when their parent is deported as to apply such a notional comparator would be contrary to s55 of the Borders, Citizenship and Immigration Act 2009.
53. The focus of the appellant’s case is the additional burden upon C3 if the appellant were deported as well as the emotional impact on C3 owing to the appellant’s role in her life.
54. While I heard oral evidence from the appellant and FP as to his role in C3’s life, I will begin my assessment with the evidence in the form of an email dated 4 February 2026 from C3 herself. In that communication, C3 states that the appellant has been ‘nothing but the dad I have always wanted,’ since his release from prison two years ago. C3 speaks of the time he spends with her every week including taking her out, time similarly spent with her brother and the assistance he provides to her mother. That assistance includes helping the family financially, doing the gardening and household jobs which C3’s mother is unable to do owing to her disability. C3 expresses her pride in the appellant and her view that he has ‘truly turned a corner.’
55. As summarised above, FP’s medical condition is well-documented in the correspondence from her clinicians. In addition, I observed FP’s struggles with mobility during the hearing in that she required two crutches to walk.
56. During her evidence, FP explained that her mobility was worsening and expressed her gratitude for the practical support provided by the appellant. FP explained that she had been diagnosed with Pompe’s Disease in 2021 and that it was a degenerative condition. There were a lot of things she could not do including using stairs and bending over. FP told the Tribunal that the appellant spent a lot of time at her home, staying over 3 or 4 days a week, so that he could help her get around and undertake tasks. In addition, he was encouraging her not to give up and ensuring that she took a daily walk round the park. FP also referred to her mental health which includes depression owing to her physical health as well as PTSD in relation to childhood trauma which she had experienced. The appellant’s financial assistance had been invaluable because FP is unable to work owing to her health.
57. The relevance of FP’s condition to the consideration of C3, is that the evidence before me was that the appellant’s practical assistance had reduced the pressure on C3. FP’s evidence was that C3 felt relieved when the appellant was at home because she does not have to worry about FP. FP expressed that she felt that she was a burden on C3. C3 was avoiding staying over with friends if she thought her mother would be alone and the appellant’s involvement took the strain off her. FP told me that C3’s efforts as her carer had been recognised with an award of a scholarship to a boarding school, as a weekly boarder, for her sixth form studies. FP was relieved at this development as she had been made aware that young carers have little opportunity to go to university.
58. During cross-examination, FP was asked if she could obtain assistance from the local authority in the absence of the appellant. In reply she explained that owing to her childhood trauma she had trust issues and was unable to accept care from a stranger. There was no challenge to this evidence. As I indicated above I found FP to be a wholly honest witness. By way of demonstrating that honesty, FP volunteered the fact that C1 had recently been assigned by the local authority to assist her with 9 hours of paid care a week despite being a family member. That evidence indicates that FP will have additional support from C1, in addition to C3. The evidence was that C2 is currently studying abroad. The evidence of the appellant with which FP agreed was that he was able to anticipate when FP might fall and to intervene before it occurred. Given that, as well as the evidence that the appellant assists with tasks involving strength, I do not consider that either of his daughters would be able to easily take his place. I therefore accept that the appellant’s assistance relieves the burden of being a carer on C3, particularly.
59. Taking C3’s interests as a primary consideration, I am satisfied that it is in her best interests for the appellant to remain in the United Kingdom to both assist FP and take the burden off C3 as well as to enable their relationship to continue to develop. C3’s email refers to the appellant becoming the father she has always wanted. A theme throughout the evidence was the lost years owing to the appellant’s offending and substance abuse.
60. In addition, the loss of C3’s childhood owing to caring responsibilities, the further harm envisaged is of an emotional nature. This is no less significant than other forms of harm, applying MI (Pakistan) [2021] EWCA Civ 1711 at [159]. Furthermore at 49 of MI the court rejects the notion that evidence of psychological injury would be required:
There is no requirement for such harm to amount to recognised psychiatric injury before it can be considered relevant to meeting the “unduly harsh” test.
61. I have carefully considered whether the appellant will be able to continue to enjoy family life with C3 by remote methods of communication. I find that although this could assist with the emotional aspects of his relationship with C3, but it does not address the positive difference the appellant’s help makes to lessen the extent of C3’s caring responsibilities.
62. I have further considered whether C3 could visit the appellant in Spain. I accept that this is not a likely prospect currently or in the near future given the impecuniosity of her mother who has been forced to rely on benefits owing to her poor health. In addition, C3 is a minor without funds of her own. Indeed, FP’s unchallenged oral evidence was that she could not afford to fund travel to Spain for C3 to see the appellant. I do not accept that remote methods of communication would enable the father and daughter relationship to continue to build or to mitigate the interference in family life in this case.
63. In the particular circumstances of this case, I attach very significant weight to the emotional and educational harm likely to be caused to C3 were the appellant to be deported given the help he provides to FP. It is important to C3 that she is able to take up the scholarship she has been offered which involves being a weekly boarder. In addition C3’s regular in person contact with the appellant would come to an end. I find that these factors render the effect of the deportation of the appellant upon C3 to be unduly harsh.
Very Compelling Circumstances
64. That the appellant can meet the requirements of Exception 2 is insufficient for him to succeed in this appeal owing to the length of his prison sentence. He must demonstrate that there are very compelling circumstances over and above the Exceptions to deportation, albeit the ability to meet the Exceptions must be considered in conjunction with other factors, applying NA (Pakistan) [2016] EWCA Civ 662 at [32].
65. It is trite law that it will be only be rare cases where a foreign national offender will be able to show the existence of very compelling circumstances and that the public interest in deporting offenders will almost always outweigh considerations of private or family life in such a case, applying Hesham Ali (Iraq) [2016] UKSC 60 at [46].
66. The weight to be attached to the public interest must be approached flexibly, applying Akinyemi [2019] EWCA Civ 2098, at [39]
The correct approach to be taken to the 'public interest' in the balance to be undertaken by a tribunal is to recognise that the public interest in the deportation of foreign criminals has a moveable rather than fixed quality. It is necessary to approach the public interest flexibly, recognising that there will be cases where the person's circumstances in the individual case reduce the legitimate and strong public interest in removal. The number of these cases will necessarily be very few i.e. they will be exceptional having regard to the legislation and the Rules.
67. I have taken into consideration the very high threshold involved as well as that the term compelling was approved as meaning circumstances which have a ‘powerful, irresistible and convincing effect’ in Garzon [2018] EWCA Civ 1225.
68. In making an assessment of this demanding test, I have undertaken a wide-ranging holistic evaluation of all relevant factors including those assessed in the context of the Exceptions to deportation, including an application of the principles in the Strasbourg authorities.
69. I begin my consideration by reminding myself that the appellant can be considered a serious offender owing to the fact that he was sentenced to seven years’ imprisonment.
70. The sentencing judge’s remarks include the following summary of the appellant’s last period of offending
You are 54 years old. You have two relevant previous convictions for dealing Class A drugs in 2005 and in 2014. Sentencing Guidelines apply to the offences for which I must sentence you. I accept that your role for the purposes of the Sentencing Guidelines was a significant role. I am sure that you were motivated by financial advantage and I am sure that you had at least some awareness and understanding of the scale of the operation. And, indeed, it seems to me that your evidence is positively to that effect.
Having concluded that you had the drugs for the purposes of street dealing, that is dealing to members of the public at large, the applicable harm category is Category 3, irrespective of the quantity of the drugs. So far as the cocaine is concerned, that is irrelevant because you had more than 150 grams of cocaine, but it is relevant in relation to the MDMA because Category 3 is otherwise relevant only where somebody has 300 tablets and you had 43 tablets. Nonetheless, Category 3 applies to both offences because, in respect of both offences, I am sure that you were street dealing.
The category starting point for a significant role, Category 3 is 4 years 6 months in custody. I accept that this was at the more serious end of the street dealing category given that you had several different types of drugs, you had cocaine in significant quantities and you had MDMA in substantial quantities. So far as other aggravating factors are concerned, I must take into account your previous convictions, and I also take into account as an aggravating factor the high purity relatively speaking of the cocaine which you possessed with intention to supply it.
71. It is set out in statute that the more serious the offence committed, the greater the public interest in deportation. Clearly, given the seriousness of his offending, there is a significant public interest in deporting the appellant from the United Kingdom.
72. I have carefully considered the nature and seriousness of the index offence committed by the appellant and remind myself that the deportation of criminals is in the public interest not only for reasons of the protection of the public, the prevention of crime but also the wider policy considerations of deterrence as well as to mark the public’s revulsion at an offender’s conduct, applying Danso [2015] EWCA Civ 596 at [20].
73. I will now consider the factors which appear on the appellant’s side of the balance sheet. As indicated above, I have found that the appellant meets the requirements of Exception 2 to deportation as far as it relates to his minor child. The appellant has lived in the United Kingdom throughout his sixty years. The vast majority of that residence was lawful. Clearly, the position changed with the United Kingdom’s departure from the European Union as the appellant took no prompt steps to regularise his situation.
74. The index offences relate to the appellant’s conduct in 2019 and 2020 and therefore over 5 years have elapsed since then with no further offending. His probation service officer has confirmed that the appellant has been compliant with his license conditions and is seeking employment. In considering this issue, it is relevant to take account of the fact that the appellant was released from prison around two years ago, wears a tag and remains on licence. I have viewed the appellant’s lack of offending against this backdrop as well as with reference to the fact that the instant proceedings have been underway for the past 4 years.
75. More relevant in terms of the appellant’s conduct is the relationships he has rebuilt with his children and the support he has provided to his former partner. I accept his account that he has refrained from substance use, which appears to have been the main driver for his offending, according to FP’s evidence. The appellant also referred to the effect of bereavement on his conduct however his account was not sufficiently coherent for this connection to be made.
76. All the present indications are that, notwithstanding his considerable offending, the appellant is to a significant extent, rehabilitated. The appellant’s evidence was that he had completed abstinence programmes in prison and that he had been clean for 6 years. FP’s evidence was that she and the children were surprised at the appellant’s sobriety as they were not sure he could refrain from substance use. FP said that she had seen no interest in the appellant in drinking or drugs since his release and that he had avoided his previous associates. FP believed that the appellant had found a purpose in looking after her and being available to his children.
77. Nonetheless, rehabilitation cannot in itself constitute a very compelling circumstance and, applying Velasquez Taylor [2015] EWCA Civ 485 at [21], I note that a case is likely to be rare in which rehabilitation could make a significant contribution. Given the relatively modest period of time since the appellant has been released from custody, I cannot find there to be sustained evidence of positive rehabilitation in this case, such as would reduce the weight to be placed on the protection of the public from further offending.
78. The appellant is a Spanish national however his children are British citizens by birth. The current family circumstances are that the appellant remains separated from his partner who he has known, according to her evidence, for 30 years. FP’s evidence was that there was no prospect of rekindling her romantic relationship with the appellant. FP’s position could not be considered under Exception 2 as she is no longer in a relationship with the appellant. Nonetheless, his deportation will have an effect upon FP as well as C1 owing to the crucial role he occupies within the family.
79. Not only does the appellant do tasks that no other family member can do, in his evidence he describes himself as the “muscle” of the family, he also plays an important role in supporting FP in dealing with her deteriorating condition such as by encouraging FP to attempt to walk on a daily basis notwithstanding her diagnosis. FP is vulnerable both mentally and physically as was clear from her oral evidence as well as the reports before me. In her emailed letter, FP describes the appellant as becoming ‘the man of old.’ Also in her letter, FP says that her condition means that she has found it hard to feel positive about the future but that the appellant ‘being around has added some light into my life and given me a different perspective.’ FP’s mental health concerns are not minor, as shown in a letter from her consultant from 2022 which refers to her struggles which had at that time, become ‘suicidal.’
80. The appellant has only one minor child, C3. Her best interests, circumstances and views have been addressed elsewhere, under the consideration of Exception 2.
81. C2, the appellant’s son is aged 19 and had travelled abroad at the time of the hearing, hence his video message was played in place of attending the hearing. While C2 is now an adult, I take into account that FP’s evidence that C2 has a level of vulnerability owing to him being assessed as being “borderline autistic” to the extent that he required Special Educational Needs support while at school.
82. In his video message, C2 stated that he was sceptical when the appellant was released from prison as to whether the appellant could be a “new improved dad.” C2’s view was that the appellant had proved the doubters wrong and was “amazing.” He stated that the appellant spends much more time with all three children, helps their mother financially and practically. C2 felt proud of the appellant in contrast to his previous view that the appellant had not been a proper dad but had been a disappointment. C2 felt that the appellant had become a normal dad, referred to his patriotism and emphasised that the family as a whole needed him. I have taken into consideration that C2 was not available to be cross-examined however there was no challenge to his video evidence which struck me as honest, unscripted and heartfelt.
83. C1, the appellant’s eldest child who is aged 23 attended the hearing to support the appellant but became too upset to remain. C1 also provided supporting written evidence in which she referred to the difficult relationship she had with her father during her early years and contrasted that to the present time. C1 confirms what has been said by her siblings about the appellant’s improved conduct and support for the family as a whole. Favourable reference is made to the efforts made by the appellant to get his life in order since his release from prison, which C1 feels are significant and sustained. She describes the appellant being a positive presence and one who has also brought ‘fun, laughter and enjoyment’ to the family.
84. The difficulties likely to be faced by the appellant if deported to Spain were considered under Exception 1. In short, while I accept that the appellant would encounter difficulties they were insufficient for him to meet this requirement. I have nonetheless had regard, at this juncture, to the fact that he would be deported as a manual worker in early old age without familial support. A factor which I have taken into account is that the appellant was the victim of a serious blade attack when in prison and has been left with significant facial scarring and following which the appellant stated he experienced nightmares. While the appellant brushed off this incident in his evidence, FP was of the view that he has suffered some trauma from it.
85. The appellant’s social, cultural and family ties to the United Kingdom are deep and lifelong as can be expected from living, working and being educated here for six decades. Those ties are referenced in the written and oral evidence of his family as well as the various letters from others, including numerous employers. Furthermore, the appellant’s probation services officer confirms that the appellant has spent the two years since his release rebuilding his connection with his family.
86. I accept that despite his episodes of serious offending, the appellant has worked from an early age and paid into the system by way of tax and national insurance contributions. The position for the appellant in Spain is the polar opposite.
87. This was very finely balanced decision however, taking all the evidence into account before me, I find that there are additional factors which (just) elevate this case to one of very compelling circumstances. I conclude that section 117C(6) is met, in that this is a rare instance when the public interest in deporting the appellant is outweighed by the very compelling circumstances identified above.
88. It follows that to deport the appellant would be disproportionate and a breach of Article 8 ECHR.
Notice of Decision
The appeal is allowed.

T Kamara

Judge of the Upper Tribunal
Immigration and Asylum Chamber

20 March 2026