Tribunal decisions

The decision

IN THE UPPER TRIBUNAL
IMMIGRATION AND ASYLUM CHAMBER
Case No: UI-2025-002376
First-tier Tribunal No: HU/01917/2024

THE IMMIGRATION ACTS

Decision & Reasons Issued:
On 17th November 2025

Before

UPPER TRIBUNAL JUDGE BRUCE
DEPUTY UPPER TRIBUNAL JUDGE BUTLER

Between

MA (PAKISTAN)
Appellant
AND

SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:

For the Appellant: Ms Hashmi, Mamoon Solicitors
For the Respondent: Dr Ibisi, Senior Home Office Presenting Officer

Heard at Manchester Civil Justice Centre on 10 October 2025

Anonymity

Unless and until a tribunal or court directs otherwise, the Appellant is granted anonymity. No report of these proceedings shall directly or indirectly identify him, any of his witnesses or any member of his family. This direction applies to, amongst others, both the Appellant and the Respondent. Failure to comply with this direction could lead to contempt of court proceedings

DECISION AND REASONS

1. The Appellant is a national of Pakistan born in 1987. He appeals with permission against the decision of the First-tier Tribunal to dismiss his human rights appeal.

2. The Appellant has lived in the United Kingdom since 2019 when he was granted leave to enter as a spouse. It is not in issue that his was a genuine marriage, and that he is now the father of two British children born to him and his then wife. He was, throughout much of this period, living in the UK with leave to remain.

3. The Appellant is now however facing ‘automatic’ deportation. That is because on the 23 November 2022 the Appellant was involved in a serious incident in the course of his self-employment as a taxi driver. Whilst working one evening, he hit and seriously injured an elderly woman who was crossing the road on a marked pedestrian crossing. The Appellant was driving too fast; he drove through a red light; he did not see her. He also drove away from the scene. The Appellant was convicted, on a guilty plea, of dangerous driving on 24 May 2024 and sentenced to 20 months imprisonment. He is therefore a ‘foreign criminal’ as defined by s32(1) UK Borders Act 2007. In accordance with the relevant statutory provisions, the Secretary of State notified the Appellant on 11 June 2024 of her intention to deport him.

4. The Appellant appealed to the First-tier Tribunal. His case was that his deportation would amount to a disproportionate interference with his Article 8 right to family life with his two British children, a test to be evaluated in line with the statutory guidance set out in s117C(5) Nationality Immigration and Asylum Act 2002, which provides for an ‘exception’ to the automatic deportation procedure:

“(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”.

5. In the alternative the Appellant argued that there were in his case ‘very compelling circumstances’ such that the appeal fell to be allowed under the provision at s117C(6) Nationality Immigration and Asylum Act 2002.

6. The Appellant was still in custody at the date of the First-tier Tribunal hearing. He attended the hearing and explained to the judge that his wife had left him. She had been pregnant at the date of the offence and she has not permitted him to see his elder daughter, born in 2020, or the new baby since he was sent to jail. She has blocked all his telephone calls and started divorce proceedings. She has not even told him what she named the baby. The Appellant averred that up until this estrangement he had played a full and active role in his daughter’s life. The Appellant believes that his ex-wife would not ever permit the children to come to Pakistan to see him. In an effort to establish contact with his daughters the Appellant has sought the intervention of the Family Court.

7. The proceedings in the Family Court were the subject of an application made on the day of the First-tier Tribunal hearing by Ms Hashmi. Ms Hashmi had not been able to obtain any documents from the Family Court, but asked that the Tribunal adjourn in order to give time to comply with the relevant protocols. She submitted that the Appellant’s relationship with his children was at the heart of his appeal, and it would be in the best interests of the children, and in the interests of justice, to adjourn the immigration proceedings in order to see what the Family Court might say.

8. The First-tier Tribunal refused to adjourn. In its written decision of 3 March 2025 it explains why. The matter had not been raised at a Case Management Hearing which had taken place on 14 January 2025: Ms Hashmi had then indicated that she was ready to proceed. It was “unusual” that the Appellant had gone straight to court without first seeking to resolve his dispute with his wife informally: “it would be thought that those representing the appellant would at least have written to [the Appellant’s ex-wife] to ask if she agreed to contact”. His ex-wife could also have been asked for her views on the potential impact on the children of their father’s deportation, or whether she would allow them to travel to Pakistan to see him in the even that his removal proceeded as planned. Having considered all these matters, the Tribunal directed itself to consider the guidance in RS (immigration and family court proceedings) India [2012] UKUT 00218 and in particular whether the outcome of the contemplated family proceedings would be “likely to be material to the immigration decision” [at §32]. Its answer to that question was as follows:

“33. I do not find that it would be. It is argued that the family proceedings, or other documents, would be necessary to show that the appellant has a genuine and subsisting parental relationship with the children. That was the purpose of the adjournment sought on his behalf.

34. These are children born in a marriage. The appellant has full parental responsibility. He has the same rights and responsibilities as Mrs Fatima has with the children.

35. The fact that he was sent to prison for 10 months does not remove those rights or responsibilities. There will be many situations where due to divorce or other reasons children may be separated from a parent. They may live in different towns or countries. They may not see each other often. It does not end the parental relationship.

36. In this case the separation does not alter the fact that the appellant has a genuine and subsisting relationship with his older daughter. I find that he does. He has not seen his younger daughter. He knows little about her. However I find that he does have a genuine and subsisting parental relationship with her as well.

37. It is not necessary for the appellant to obtain further documents to show that. It is not necessary for him to obtain a family court order to show that.

9. Having refused the adjournment in these terms, the Tribunal went on to dismiss the appeal on the grounds that there was not sufficient evidence before it to show that it would be “unduly harsh” for the Appellant’s children if he were to be deported, that being the proportionality litmus test built into the statutory framework and the Rules.

10. The Appellant now appeals that decision on the grounds that it was unfair or otherwise unlawful for the Tribunal to have refused the adjournment.

11. Before us Dr Ibisi for the Secretary of State resisted the appeal. She emphasised that the Appellant’s representatives had said that they were ready to proceed at the CMR, and that in the absence of any indication about how long it might take to secure information, much less a decision, from the Family Court, the overriding objective impelled the Tribunal to proceed. Consequently, she submitted, there can have been no unfairness in refusing the adjournment and dismissing the appeal for lack of evidence.

Error of Law: Discussion and Findings

12. The power to adjourn proceedings in the First-tier Tribunal is found in paragraph 4(3)(h) of the Tribunal Procedure (First-tier Tribunal) (Immigration and Asylum Chamber) Rules 2014. That general case management power is subject to the overriding objective set out in paragraph 2, which is to enable the Tribunal to deal with cases fairly and justly. Dealing with a case fairly and justly includes avoiding delay, so far as compatible with proper consideration of the issues, and dealing with the case in ways proportionate to the importance of the case and the complexity of the issues. These considerations can prompt the Tribunal to have regard to a wide range of factors, but as the Upper Tribunal held in Nwaigwe (adjournment: fairness) [2014] UKUT 00418 (IAC) the ultimate question is whether or not the appeal can be justly determined without the appeal being adjourned.

13. Here the central issue in the appeal was whether or not it would be unduly harsh for these British children if their father were to be deported. As matters stood before the Tribunal, it could not be satisfied that this elevated test was made out, since it simply did not have sufficient evidence to justify a finding to that effect. It noted in particular the absence of any evidence from the children’s mother about how they might be impacted. This, submits Ms Hashmi, is the essence of the unfairness here. This lack of evidence was, she submits, no fault of the Appellant, and it was what she hoped to remedy with her adjournment application.

14. As set out above, the First-tier Tribunal directed itself to consider, pursuant to the guidance in RS (India), whether the outcome of the contemplated family proceedings would be “likely to be material to the immigration decision” [at its §32]. In answering that question, the Tribunal focused on one matter: whether the Appellant had a “genuine and subsisting parental relationship” with his daughters. Finding that he did, the Tribunal saw no unfairness in not waiting to see what the family courts said. This, we find, was an error in approach. Section 117C(5) NIAA 2002 [at our §4 above] poses two questions, but the First-tier Tribunal only considered the first. The second question was whether it would be “unduly harsh” for these children if their father were to be deported. A specialist consideration of the relationships the Appellant has with his children, of the sort conducted by the Family Court, would plainly also be relevant to that matter, the very question at the heart of the appeal. We are satisfied that the failure to consider that matter, in the context of the adjournment application, was a material omission. We would also note that there could have been no prejudice to the Respondent had the appeal been adjourned, since her own long standing policy in these circumstances is not to enforce deportation until such proceedings in the Family Court have been resolved: see most recently CJ (family proceedings and deportation) South Africa [2022] UKUT 00336 (IAC).

15. We are satisfied that the appeal before the First-tier Tribunal could not have been justly determined without granting the adjournment to enable the Appellant to produce evidence relating to the Family Court proceedings. It follows that the decision must be set aside.

16. We direct that the matter be heard afresh by a differently constituted First-tier Tribunal, and that prior to listing for a substantive hearing, a case management hearing be convened in order to give effect to the Protocol Between Judges of the Family Court and the Immigration and Asylum Chambers of the First-tier Tribunal and Upper Tribunal.

Decisions

17. The decision of the First-tier Tribunal is set aside.

18. The decision having been set aside on fairness grounds, we consider it appropriate to remit the matter for a de novo hearing in the First-tier Tribunal

19. We have made an order for anonymity in order to protect the identities of the Appellant’s British children.

Upper Tribunal Judge Bruce
Immigration and Asylum Chamber
11 November 2025