Tribunal decisions

The decision

IN THE UPPER TRIBUNAL
IMMIGRATION AND ASYLUM CHAMBER Case No: UI-2025-002552
UI-2025-002553
First-tier Tribunal No: HU/00299/2024
EA/03858/2023

THE IMMIGRATION ACTS

Decision & Reasons Issued:
On 3 August 2026

Before

UPPER TRIBUNAL JUDGE CANAVAN

Between

KINGA RYBACKA
(NO ANONYMITY ORDER MADE)
Appellant
and

SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: Ms H. Lynes, instructed by Turpin Miller LLP
For the Respondent: Ms A. Ahmed, Senior Home Office Presenting Officer

Heard at Field House on 5 May 2026

DECISION AND REASONS
Summary
1. This is a decision of the Upper Tribunal (Immigration and Asylum Chamber) (‘the Upper Tribunal’). The Upper Tribunal is an independent decision-making body with powers given to it by an Act of Parliament. This decision is made in the context of the Upper Tribunal’s role in considering statutory appeals from decisions made by the First-tier Tribunal (Immigration and Asylum Chamber) (‘the First-tier Tribunal’).
2. The appellant appealed a decision of the respondent to refuse a human rights claim in the context of deportation proceedings. The appellant lodged an appeal to the First-tier Tribunal under section 82 of the Nationality, Immigration and Asylum Act 2002 (‘NIAA 2002’). The appeal could be brought on the ground that removal would be unlawful under section 6 of the Human Rights Act 1998 (‘HRA 1998’). As an EU citizen who had pre-settled status in the UK under the EU Settlement Scheme (EUSS), the appellant also appealed under The Immigration (Citizens’ Rights Appeals) (EU Exit) Regulations 2020 (‘CRA Regulations 2020’) against a Stage 1 deportation decision.
3. The First-tier Tribunal dismissed her appeal. The First-tier Tribunal found that the appellant did not meet any of the exceptions to deportation contained in section 117C NIAA 2002 and concluded that the appellant had failed to show that there were very compelling circumstances to outweigh the public interest in deportation.
4. The losing party in an appeal before the First-tier Tribunal can apply for permission to appeal to the Upper Tribunal. If permission is granted, the Upper Tribunal will consider the legal arguments put forward by both sides in the appeal. The Upper Tribunal only has power to set aside a decision of the First-tier Tribunal if it concludes that the arguments put forward by the party that applied to appeal show that the decision involved the making of an error of law: see section 12 of the Tribunals, Courts and Enforcement Act 2007 (‘TCEA 2007’).
5. If the Upper Tribunal finds that a decision of the First-tier Tribunal did not involve the making of an error of law, the First-tier Tribunal decision will stand. If a decision of the First-tier Tribunal is found to involve the making of an error of law the Upper Tribunal has power to set aside the decision. The Upper Tribunal will then decide whether it will remake the decision or whether the appeal might need to be reheard in the First-tier Tribunal.
6. In this decision, the Upper Tribunal is only deciding whether the First-tier Tribunal decision involved the making of an error of law. The Upper Tribunal has concluded that the First-tier Tribunal decision did not involve the making of an error of law.
Decision and reasons
Procedural issue
7. It is necessary to note a procedural issue before deciding whether the First-tier Tribunal decision involved the making of an error of law.
8. The decision of the First-tier Tribunal considered the linked appeals of the appellant and her partner, Michael Lada (HU/00506/2024, EA/03858/2023 and UI-2025-004407). Although the appeals were heard together they were represented separately at the hearing before the First-tier Tribunal. The applications for permission to appeal to the Upper Tribunal were not co-ordinated. It is reasonable to infer that the appellant is still likely to be in a relationship with Mr Lada because he attended the hearing in the Upper Tribunal to support her. It is unclear why they did not continue the appeal together. Mr Lada made an out of time application for permission to appeal to the Upper Tribunal on 16 September 2025. In an order made by Upper Tribunal Judge Grey on 13 November 2025 the application for permission was stayed pending the outcome of the decision in this appeal. In relation to Mr Lada’s out of time application for permission to appeal, Judge Grey directed that:
(i) Mr Lada shall provide written notice to the Upper Tribunal and to the respondent indicating whether he wishes to pursue the application for permission to appeal no later than 14 days after the Upper Tribunal’s decision in this appeal (UI-2025-002552) is sent.
(ii) If Mr Lada wishes to pursue the application for permission to appeal he must make an application for an extension of time in accordance with rule 21(6) of The Tribunal Procedure (Upper Tribunal) Rules 2008, which must be supported by valid grounds of appeal and an explanation as to why he was unable to raise these prior to the resolution of his partner’s appeal.
First-tier Tribunal decision
9. First-tier Tribunal Judge Cartin (‘the judge’) dismissed the appeal in a decision sent on 9 April 2025. The judge accepted that the appellant had established a private and family life in the UK and was socially and culturally integrated here, but found that she could successfully reintegrate in Poland. The judge relied on the evidence that she had lived in Poland until the age of 17, spoke Polish fluently, had returned there several times since moving to the UK, retained contact with her sister in Poland, had previously undertaken an apprenticeship there, and would return with her partner and daughter. The judge also found there was no evidence she would be homeless, unable to work, unable to access welfare support or mental health services. The judge concluded that there were no ‘very significant obstacles’ to her integration [41]-[48].
10. In relation to family life, the judge found that there was insufficient evidence to show that deportation would have ‘unduly harsh’ consequences. The evidence showed that both appellants were Polish nationals facing deportation and could relocate together with their infant daughter, ‘L’. The judge relied on the findings of a family assessment centre and social services which showed that the appellants had made progress as parents, were caring adequately for L, and no longer required statutory intervention. The judge found that the child’s relocation to Poland would not be unduly harsh because she was only one year old, her primary relationship was with her parents, and relationships with extended family in the UK could be maintained through visits and remote contact [56]-[63].
11. The judge turned to consider the appellant’s relationship with her oldest child from an earlier relationship, N. His detailed findings relating to this issue formed the largest portion of the decision [64]-[94]. The judge regarded this as the most difficult aspect of the appeal because the appellant's submissions relied heavily on the argument that the child’s best interests required her continued presence in the UK. He accepted that N lived with the appellant for the first seven and a half years of his life and that the relationship had been disrupted when N went to live with his father in January 2022. I note that was around the time the appellant was likely to have been arrested for the index offence, which took place in the same month. The judge observed that N had only resumed contact with his mother relatively recently and that, at the date of hearing, his settled home remained with his father.
12. The judge examined the evidence from the Independent Social Worker (‘ISW’), Ms Orr. Her report set out views from N's social worker, school safeguarding lead, and school psychologist. He noted that there was evidence to indicate that N’s position had improved since his mother re-entered his life, that she was an important and positive influence, and that professionals considered her significant to his welfare and development. He also noted that N was said to be the subject of a Child Protection Plan and that concerns had been expressed about his father [67]-[69].
13. The judge also considered adverse material contained in the OASys and assessment centre reports. He referred to allegations attributed to N that he had been physically disciplined by the appellant and Mr Lada, although he recognised that these allegations were disputed. He recorded that N had experienced childhood trauma, had emotional and behavioural difficulties, and was displaying concerning behaviours at school. Nevertheless, he was not prepared to make findings about the historic relationship between the appellant and N's father, or about allegations of abuse by the father, because he considered he had only one side of the story and insufficient evidence to resolve those disputes [71]-[80].
14. Having assessed the evidence as a whole, the judge accepted that N benefited from contact with his mother and that she was an important person in his life. He accepted that separation through deportation would have a negative effect upon him. However, he considered it significant that N would remain in the UK with his father, continue attending the same school, retain professional support, and preserve the stability of his existing living arrangements. He also found that the appellant could continue to maintain a relationship through telephone calls, messaging and visits. In his view, while the loss of regular physical contact would be difficult, it would not reach the elevated threshold of being ‘unduly harsh’ [81]-[87].
15. The judge went on to consider the alternative theoretical scenario of N relocating to Poland with his mother. He accepted that removal would disrupt N's established life in the UK, but concluded that, if such a course ever became possible, N was still young enough to adapt, would have the support of his mother and younger sister, and could access education and services in Poland. He therefore found, both on the basis of N remaining in the UK without the appellant (the ‘stay scenario’) and on the alternative basis of relocation to Poland (the ‘go scenario’), that the consequences for N did not meet the statutory test of undue harshness [88]-[94].
16. The judge concluded that there were no ‘very compelling circumstances’ outweighing the strong public interest in deportation. Particular weight was placed on the seriousness of the offending. The judge relied on the sentencing remarks and OASys assessments, noted that both appellants continued to deny responsibility and therefore lacked insight and genuine remorse. This strengthened the public interest in deportation. Although the judge accepted evidence of rehabilitation, stable parenting, family support in the UK, low risk of reoffending and positive relationships with relatives, these factors were not considered sufficiently powerful to overcome the public interest in deportation [95]-[122].
17. In relation to the appeal brought under the CRA Regulations 2020 against the Stage 1 deportation decision dated 6 November 2023, the judge noted that the both appellants’ representatives ‘acknowledged the limited of any argument they could advance in light of the Upper Tribunal’s decision in Vargova (EU national, post 31 December 2020 offending, deportation) [2024] UKUT 00336 (IAC)’ but wished to preserve their clients’ position. The judge recorded that both counsel did not formally concede the issue, but no submissions were made in relation to that aspect of the appeal.
Appeal to the Upper Tribunal
18. The appellant applied for permission to appeal to the Upper Tribunal on the following grounds:
(i) The First-tier Tribunal failed to give adequate consideration to the fact that the appellant’s oldest child (N) was the subject of a Child Protection Plan and was said to be at risk in his father’s care.
(ii) The First-tier Tribunal failed to give adequate weight or adequate reasons relating to the opinions of professionals including the ISW, N’s social worker, and his school’s safeguarding lead and clinical psychologist.
(iii) The First-tier Tribunal erred in failing to make findings of fact relating to the appellant’s account of domestic abuse by her ex-partner (N’s father).
(iv) The First-tier Tribunal erred in finding that it would be sufficient for the appellant to continue to keep in contact with N through visits and modern communication.
(v) Alternatively, the First-tier Tribunal erred in finding that it would not be unduly harsh to expect N to continue family life with the appellant in Poland.
(vi) The last ground accepted that the Upper Tribunal’s decision in Vargova was binding on the First-tier Tribunal. The Court of Appeal had since granted permission to appeal. It is unclear what error of law was being argued, but the last ground submitted that Vargova was wrongly decided and that ‘the appellant relies upon this ground now also’.
19. I have considered the First-tier Tribunal decision, the documentation that was before the First-tier Tribunal, the grounds of appeal, and the submissions made at the hearing, before coming to a decision in this appeal. It is not necessary to summarise the oral submissions because they are a matter of record, but I will refer to any relevant arguments in the decision.
20. I bear in mind that judicial caution and restraint is required when considering whether to set aside a decision of a specialist tribunal. In particular, judges of a specialist tribunal are best placed to make factual findings: see HA (Iraq) v SSHD [2022] UKSC 22; [2022] INLR 425. The court should not characterise as an error of law what, in truth, is no more than a disagreement with the tribunal’s assessment of the facts. Where a relevant point is not expressly mentioned by the tribunal, the court should be slow to infer that it has not been taken into account: see MA (Somalia) v SSHD [2010] UKSC 49; [2011] 2 All ER 65. When it comes to the reasons given by the tribunal, the court should exercise judicial restraint and should not assume that the tribunal misdirected itself just because not every step in its reasoning is fully set out: see Jones v FTT & Anor (Rev 1) [2013] UKSC 19; [2013] RTR 28. Appellate courts should not rush to find misdirections simply because they might have reached a different conclusion on the facts or expressed themselves differently: see SSHD v AH (Sudan) [2007] UKHL 49; [2007] 3 WLR 932, MM (Lebanon) v SSHD [2017] UKSC 10; [2017] 1 WLR 771 and KM v SSHD [2021] EWCA Civ 693; [2021] Imm AR 1361.
21. Having considered the grounds in the context of the judge’s detailed findings, I find that the points are no more than generalised submissions on the evidence amounting to disagreements with the outcome.
22. In relation to the first and second grounds, it is not arguable that the judge failed to consider the information contained in the ISW report adequately. It is clear from the face of the decision that he had considered the opinions expressed within that report. He also expressly considered the opinions of school staff [75]. He considered the evidence of the positive impact that the appellant’s resumed contact with her son had, but it was also open to him to take into account other evidence, which showed that there had been concerns about the appellant’s own care of the child. It was within a range of reasonable responses to the evidence for the judge to observe that there was no direct evidence in the form of a copy of the Child Protection Plan or any direct evidence from N’s allocated social worker to understand why the Child Protection Plan had been made [69]. Nor was it clear whether the ISW had sight of the Child Protection Plan. It was not among the documents listed at paragraph 1.8 of her report, which only referred to a letter from the local authority ‘regarding the Child Protection Plan dated 29.10.2024’.
23. It is reasonable to infer from the chronology that it is possible that N went to live with his father following the appellant’s arrest for the index offence, which took place in January 2022. However, it was open to the judge to consider the evidence contained in the assessment centre report and the OASys assessment, which indicated that there had been some child protection concerns relating to the appellant’s care of N, even before that. The fact that the appellant and Mr Lada were required to attend an assessment centre with their child L, and the appellant was still assessed to be a risk to a named child N, even though the offence did not relate to children, testified to those concerns.
24. It is clear from the decision that the judge was concerned that so little evidence had been produced directly from the relevant authorities that were charged with N’s welfare. In the circumstances, it was open to him to be circumspect about the appellant’s evidence. It was open to the judge to take into account the fact that the appellant had only recently resumed tentative contact with her son and that it had not been deemed appropriate, at that stage, to return him to her care. The fact that there were also deemed to be sufficient concerns relating to the father’s care of the child to justify a Child Protection Plan being in place did not detract from this fact.
25. It was also open to the judge to observe that if there were allegations of domestic abuse that might be relevant to a determination of where the best interests of the child lay in terms of residence with a parent, that was a matter better suited for the Family Court. It is not arguable that it was necessary for the judge to make any specific findings in relation to the appellant’s allegation of past domestic abuse. It was open to the judge to find that there was in general an absence of evidence to support this aspect of the appellant’s account [77].
26. The fourth ground is argued as an error in ‘finding that indirect contact from Poland would suffice’. It is unclear whether this is argued as a rationality challenge. In any event, I conclude that it amounts to no more than a disagreement. It is clear that the judge considered all the relevant circumstances. He directed himself to the correct legal test. It was open to him to take into account the fact that there had been a period of time in which the appellant did not have contact with her son. He was clearly aware of the fact that contact was resuming and that some professionals considered the appellant’s influence to be a positive factor for N. The judge acknowledged that deportation was likely to have a negative effect on N. However, it was within a range of reasonable responses to the limited evidence before him for the judge to conclude that there was insufficient evidence to show that the ‘stay scenario’ would reach the stringent threshold of undue harshness.
27. Similarly, the fifth ground makes generalised submissions on the evidence without identifying any material error of law in the judge’s findings relating to the ‘go scenario’. Given that the child was living with his father at the date of the hearing, and was the subject of a Child Protection Plan, the judge had no other option but to consider a hypothetical future scenario where the appellant might have custody of the child. If the judge’s findings relating to the ‘stay scenario’ are sustainable, it is difficult to see how any error could be found in relation to the ‘go scenario’, which was not a realistic option at the date of the hearing given that the child was not in the care of the appellant. Nor does it seem that this aspect of the case was developed in detail before the First-tier Tribunal [93].
28. I bear in mind that the Supreme Court has granted permission to appeal in Vargova. However, if the first five substantive grounds of appeal disclose no error of law in the First-tier Tribunal decision, the last ground is not capable of doing so when it is unparticularised and seems to have only been argued to preserve the appellant’s position in relation to the CRA Regulations 2020 appeal. It was an argument that was not pursued, albeit not withdrawn, before the First-tier Tribunal. The last ground seems to have been included with the same intent of preserving the appellant’s position, but cannot do so once there has been disposal of the substantive grounds.
29. For the reasons given above, I conclude that the First-tier Tribunal decision did not involve the making of a material error of law. The decision shall stand.
30. I was told that the position at the date of the hearing in the Upper Tribunal had changed. N is now living with the appellant. This is not capable of making a difference to the outcome of this decision because it is a change in circumstance that has occurred since the First-tier Tribunal’s decision. Any fresh evidence relating to changed circumstances should be raised by way of further submissions to the respondent.
Notice of Decision
The First-tier Tribunal decision did not involve the making of an error on a point of law.
The decision shall stand.

M. Canavan
Judge of the Upper Tribunal
Immigration and Asylum Chamber

3 August 2026