Tribunal decisions

The decision

IN THE UPPER TRIBUNAL
IMMIGRATION AND ASYLUM CHAMBER
Case No: UI-2025-002411

First-tier Tribunal Nos: HU/53058/2024
LH/08114/2024

THE IMMIGRATION ACTS

Decision & Reasons Issued:

On 17th of September 2025

Before

UPPER TRIBUNAL JUDGE MAHMOOD

Between

Klajdi Gasa
(Aka Tomasz Kuba)
Appellant
and

The Secretary of State for the Home Department
Respondent

Representation:
For the Appellant: No attendance by or on behalf of the Appellant.
For the Respondent: Mr E Terrell, Senior Home Office Presenting Officer.

Heard at the Royal Courts of Justice on 18 August 2025

DECISION AND REASONS

1. This is my oral decision which I delivered at the hearing today.
Background
2. The Appellant, a citizen of Albania, has been granted permission to appeal against the decision of First-tier Tribunal Judge Juss (“the Judge”) dated 26 January 2025, who had dismissed his appeal on human rights grounds (the protection claim not having been pursued before the Judge). Permission to appeal was sought by the Appellant when he was legally represented by solicitors and counsel. Permission to appeal was granted by First-tier Tribunal Judge Mulready by way of a decision dated 3 June 2025.
3. I am deciding whether or not there was a material error of law in the Judge’s decision.
Non-Attendance of the Appellant
4. I deal firstly with the Appellant’s non-attendance at the hearing before me today. Because the Appellant latterly became a litigant in person, it was necessary for appropriate applications to be made for the Appellant, a serving prisoner, to attend the hearing at this secure court today. Including production orders. I waited some time for the Appellant’s arrival, but it transpired that despite all of those production orders and others forms and applications, alongside other requests, that the Appellant has refused to leave his cell at HMP Maidstone.
5. I have been provided today with documentation supplied after my request via the Upper Tribunal’s clerk, from HMP Maidstone in which the Appellant has signed a letter headed “Refusal to Attend Court”. It relates to this hearing, today 18 August 2025.
6. I was further concerned initially because that “Refusal to Attend Court” document has the name of Tomasz Kuba. The Appellant’s name in these proceedings is Klajdi Gasa. I note that the Judge’s decision at paragraph 10 also refers to the alias or additional name in the following terms:
“… he also provided a Polish identity card with the identity of Tomasz Kuba (dob. 16/04/1993). Even though this does not go against his leave decision, it is important to note that he had previously lied about his identity in the U.K. and it is arguable that these behaviours are indicative of the person who the Appellant genuinely is.”
7. I am quite satisfied that the Appellant is well aware of today’s hearing. I provided a short ex tempore decision earlier this morning concluding that the hearing will proceed. I was satisfied that extensive efforts were made to secure the Appellant’s attendance today. He is aware of today’s hearing and has voluntarily absented himself. It is in the interests of justice to proceed with the hearing today.
8. Mr Terrell has informed me that the Appellant was recently the subject of a sentence of imprisonment by a Crown Court judge for a period of 32 months for an offence of Possession with Intent to Supply Class A drugs. Mr Terrell said that his internal Home Office notes suggested that the Appellant has voluntarily agreed to deportation. Because I am dealing with the grounds of appeal only and matters prior to this new sentencing, I separate the new details provided to me from the procedural route which applies to the Appellant’s appeal before me today.

The Appellant’s Grounds of Appeal and Consideration
9. Mr Terrell very helpfully took me through the grounds of appeal and it is my observation with which Mr Terrell appeared to agree, that the grounds of appeal are not easy to follow. The grant of permission perhaps sets out the grounds in a clearer manner but are not entirely reflective of the grounds of appeal.
10. Ground 1 contends that there was a lack of assessment of the best interests of the children and that there was an error in respect of the ‘unduly harsh’ test. I conclude that there is no error of law because the Judge had considered the best interests of the children. The Judge had said specifically that,
“I have made an assessment of the children’s best interests, whilst simultaneously evaluating the reality of the children’s life situation and circumstances. I have not let the Appellant’s immigration misconduct intrude into that assessment. Their best interests are an important component of the overall proportionality balancing exercise.”
The judge also noted further within the decision, that the best interests of the children are important components of the overall proportionality balancing exercise and that,
“Everything that the Appellant claims to be now doing was done by the children’s grandmother and their aunt. The Appellant’s misconduct taking the form of illegal entry, unlawful possession of drugs, and breaking the law is a factor which only legitimately enter the equation at a later stage of the overall proportionality balancing exercise. The reason for this is that this is clearly embraced by the public interest in the maintenance of immigration control. This is now statutory obligation on every decision-maker to heed.”
11. Effectively what Mr Terrell says and with which I conclude he is correct, the grounds of appeal seek to go behind the decision in an impermissible manner and merely seek to reargue the case.
12. Ground 2 contends that no formal assessment was made in respect of proportionality in relation to matters related to entry clearance. In my judgment, there is no material error because the Judge dealt fully and correctly with matters. He heard from the parties and set out the respective submissions in detail at paragraphs 18 and 19. Then the Judge concluded as follows at paragraph 25 onwards:
“Fourth, with wider family help being available, I do not find that the children’s welfare needs require the Appellant’s regular presence while he returns to Albania and makes a lawful application to re-enter. I have made an assessment of a children’s best interests, whilst simultaneously evaluating the reality of the children’s life situation and circumstances. I have not let the Appellant’s immigration misconduct intrude into that assessment. Their best interests are an important component of the overall proportionality balancing exercise. However, everything that the Appellant claims to be now doing was done by the children’s grandmother and their aunt. The Appellant’s misconduct taking the form of illegal entry, unlawful possession of drugs, and breaking the law is a factor which only legitimately enter the equation at a later stage of the overall proportionality balancing exercise. The reason for this is that this is clearly embraced by the public interest in the maintenance of immigration control. This is now statutory obligation on every decision-maker to heed.
26. I find, for the reasons I have given above that whatever the children’s best interests, these are on the facts of this case outweighed by the public interest. This follows from Part 5A of the 2002 Act. I find that any interference with private life, and more significantly with ‘family life’, here is proportionate in respect of that aim and the seriousness of the appellant’s offences. Ultimately, there is an Article 8(2) proportionality balancing exercise to be performed. Whilst it may have seemed that at the outset of the exercise, the scales are evenly balanced, the performance of the exercise by identifying all material facts and considerations and attributing appropriate and rational weight to each, means that it is perfectly reasonable and proportionate to expect the Appellant to return back to Albania and make a fresh application. It has been argued before me that his partner, being on benefits because of her medical condition, would not be 17 8 able to show the requisite £29,000 that is now required. However, this does not mean that it is not open for the Appellant to put in an application where any such matter can be considered.
27. In any event, it is open to the partner to either accompany the Appellant back to Albania for a short period of a few weeks, or to make periodic visits every now and then. I do not find that any one of these courses would be ‘unduly harsh’ In MM (Uganda) v SSHD [2016] EWCA Civ 450 the Court of Appeal decided that the application of the ‘ unduly harsh’" provision in Section 117C(5) of the 2002 Act involves a balancing of the wider public interests’ encompassing all the circumstances including in particular the immigration and criminal history of the parent concerned. In MA (Pakistan) [2016] EWCA Civ 705. a different constitution of the Court of Appeal held, with significant reservations, that the effect of being bound by MM (Uganda) was that the correct approach to Section 117B(6) should mirror the approved approach to Section 117C(5). Thus the Secretary of State's argument that Section 117B(6) does not focus exclusively on the best interests of an affected child but embraces also the public interests prevailed. If this can be said of the best interests of a child, it can be a fortiori also be said of the Appellant’s partner in a case such as the present. I do not find that there are any ‘insurmountable obstacles’ which would be faced in continuing their family life together outside the UK’ if needs be for a period of time. It is noteworthy that the Respondent’s Review stated (at §6) that no bespoke evidence, such as medico legal reports or country reports, was lodged with the Appellant’s appeal bundle or lodged with the Appellant’s Skeleton Argument.”
13. In my judgment these paragraphs show adequate reasoning and there was no material error of law.
14. Mr Terrell also took me to the grant of permission by the First-tier Tribunal Judge in this case and has said that ultimately the way in which permission was granted did not necessarily reflect the grounds of appeal. Again, I have to agree with Mr Terrell but nonetheless, even when one looks through the grant of permission and the way in it is set out, there is no material error of law.
15. In my judgment, and insofar as insurmountable obstacles were concerned, the Judge did refer to the House of Lords and Supreme Court’s leading authorities, including at paragraphs 29 and 30 of his decision. The Judge had also considered insurmountable obstacles. There was no necessity to consider that first. Insofar as unjustifiably harsh consequences were concerned here the Judge did consider these aspects and ultimately, in essence, it called for proportionality analysis. That is what the Judge had done.
Conclusion
16. I have taken time to go through the Appellant’s grounds of appeal and also the grant of permission to ensure there is complete fairness for the Appellant who has not attended the hearing today. Even when doing so and looking at the case in a wide way as possible, there is simply nothing to the grounds of appeal. I do not detect a material error of law in the Judge’s decision.
17. In the circumstances, the decision of the First-tier Tribunal Judge which had dismissed the Appellant’s appeal shall stand.
Notice of Decision
The decision of the First-tier Tribunal does not contain a material error of law.
The decision of the First-tier Tribunal which had dismissed the Appellant’s appeal shall therefore stand and the Appellant’s appeal based on all grounds remains dismissed.
No anonymity direction is made.

Abid Mahmood

Judge of the Upper Tribunal
Immigration and Asylum Chamber

18 August 2025