Tribunal decisions

The decision

IN THE UPPER TRIBUNAL
IMMIGRATION AND ASYLUM CHAMBER
Case No: UI-2025-002599

First-tier Tribunal No: HU/01428/2024

THE IMMIGRATION ACTS

Decision & Reasons Issued:
On 10 September 2025

Before

UPPER TRIBUNAL JUDGE MAHMOOD

Between

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Appellant
and

AHMAD BARRY
NO ANONYMITY ORDER MADE
Respondent

Representation:
For the Appellant: Ms Z Young, Senior Home Office Presenting Officer
For the Respondent: Mr J Dingley of Counsel, instructed by CB Solicitors

Heard at Bradford on 13 August 2025

DECISION AND REASONS
1. This is my oral decision which I have delivered at the hearing today. Mr J Dingley of Counsel instructed by CB Solicitors appears on behalf of Mr Ahmad Barry and Ms Z Young, Senior Home Office Presenting Officer appears on behalf of the Secretary of State.
Introduction
2. Although this is an appeal brought by the Secretary of State, to ease following this decision, I shall continue to refer to the parties as they were at the First-tier Tribunal.
3. The decision under appeal in this case is that of First-tier Tribunal Judge Turner (“the Judge”) who by way of a decision dated 3 March 2025, following an oral hearing, had allowed the Appellant’s human rights appeal based on Article 8 of the Human Rights Convention in relation to deportation matters.
4. Grounds of appeal were submitted by the Secretary of State and permission was granted by First-tier Tribunal Judge Horton by way of a decision dated 2 June 2025. The learned First-tier Tribunal Judge said as follows when granting permission to appeal:
“The IAFT-4 ‘Reasons for appealing’ makes varied submissions under one unhelpfully wide Ground. The respondent disagrees with the decision when this appellant had gone on to seriously re-offend even after a previous successful appeal following an earlier deportation decision. The appellant’s record of criminality is serious and repeated”.
5. I am therefore considering whether or not there is a material error of law in the Judge’s decision. It is only if I conclude that there is a material error of law in the Judge’s decision that I will then need to consider whether or not to remake the decision or to remit the matter to the First-tier Tribunal.
The Hearing Before Me
6. I have to say the Secretary of State’s grounds of appeal are difficult to follow and have been unhelpfully pleaded. The grounds should have been set out in a clear way. In my judgment, the Secretary of State ought to be setting a good example for claimants so that they too present properly pleaded grounds of appeal. In the recent decision of Rai and DAM (grounds of Appeal-Limited Grant of Permission) [2025 UKUT 00150 (IAC) Upper Tribunal Judges Mandalia and Landes made clear in their judicial headnote that,
“3. Each point of law, where there is more than one, must be clearly and succinctly identified as a numbered ground of appeal with sufficient detail so that the Tribunal and the parties are able to identify the essential issue raised by that ground. The grounds of appeal will rarely need to be lengthy. Each ground of appeal should identify succinctly, in clearly numbered paragraphs or (sub paragraphs):
a. The relevant passage(s) in the decision of the FtT.
b. Any relevant primary or secondary legislation only to the extent necessary to do so.
c. Any authority binding upon the judge that is capable of supporting the ground.
d. Brief submissions proving a short explanation to support the ground.”
7. I do urge the Secretary of State to ensure that when grounds of appeal are submitted that the overriding objective is followed so that the Judge dealing with the matter should be able to understand and follow the grounds of appeal, as should the other party to the proceedings. These are important matters for all parties at the Upper Tribunal.
8. Having said all of that that Ms Young, who appears today on behalf of the Secretary of State, has sought to take me through those grounds in a clear and comprehensive way. I am grateful to her.
9. In this case Ms Young has taken me through the grounds of appeal and as I say she helpfully cross-referred me to the various pages within the 657 paged bundle.
10. I also heard from Mr Dingley who very helpfully sub-grouped the various subparagraphs to the grounds. He said, in essence that ultimately what was being said here by the Secretary of State amounted to mere disagreement with the Judge’s decision. Mr Dingley said that this was a very complex matter and the Judge had dealt with the complex matters with great care. He said that the grounds were not clear and in any event some of the matters now being raised had not been raised during the hearing. Nor he said had those matters been raised in the Reasons for Refusal Letter or in the Respondent’s Review. Mr Dingley said that a lot of the challenges were not legal challenges, they were factual and, in any event, the starting point was the decision of First-tier Tribunal Judge Moxon which the Judge had correctly referred to at paragraph 21 of her decision.
11. Mr Dingley took me to various paragraphs of the skeleton argument on behalf of the Appellant including the subheading of ‘Expert Report’ at pages 18 to 21 of the decision. It was said in relation to each of the points which was being made that the Judge had turned her attention to such matters. Ultimately said Mr Dingley this was a case in which the Appellant was at risk of exploitation and that is something that had continued. He said that the Appellant is still a vulnerable person and therefore it is highly relevant for the Judge’s assessment that the Upper Tribunal should be well aware that the grounds ultimately lean heavily on saying there was insufficient weight which had been placed by the Judge on certain matters. This was a case in which the Judge had heard from the Appellant at the hearing. Mr Dingley explained that his lay client was not present today. The Appellant’s solicitors are aware of the Appellant’s whereabouts but there has been no contact from him since March 2025.
Consideration and Analysis
12. I remind myself that there has to be appropriate judicial restraint in relation the assessment of an appeal from the specialist First-tier Tribunal. I note too that the authorities date back to Baroness Hale’s clear judgment in AH Sudan v Secretary of State for the Home Department [2007] UKHL 49; ]2009] 1 AC 678 in respect of that expertise.
13. In the Court of Appeal’s recent decision in MH (Bangladesh) v the Secretary of State for the Home Department [2025] EWCA Civ 688 (9 June 2025) Arnold LJ, with whom Singh and King LJJ agreed has recently stressed this again.
14. I give great weight to the fact that it was the Judge who heard the evidence and thereby had the benefit of seeing and hearing from the Appellant and also from the Appellant’s advocate at the hearing.
15. I turn to the grounds of appeal and also to the background of the case which is referred to within the Secretary of State’s grounds:
“The Appellant entered the UK on the 16th July 2013. He was granted leave as a dependent of his mother who made an application to remain as the wife of a British Citizen. His leave to remain was valid to 06 May 2018. The Appellant was arrested in 2017 in connection with drug supply and a referral was made to the NRM [National Referral Mechanism]. A reasonable and conclusive grounds decision followed. The Appellant was convicted before the Sheffield Crown Court on the 14th May 2018 of offences of false representation, robbery and attempt robbery and was sentenced to 40 months imprisonment. A decision to deport was made, and the subsequent appeal was allowed by the First-tier Tribunal in a decision dated 16 March 2020. The Appellant was then convicted on the 9th December 2021 for the supply of Class A drugs offences (committed February – March 2021) and possession of bladed article in public (committed December 2021) and was sentenced to 48 months imprisonment”.
16. I go immediately to one aspect of the grounds, where at paragraph 27 the Judge said:
“The report states that risk will reduce if the Appellant completes work on offending behaviour and consequential thinking. Whilst the Appellant was asked in cross examination only about substance abuse programmes, I note that the Appellant has not been the subject of any breach proceedings relating to his licence. This indicates that he is compliant with any requirements set for him by the Probation service which would include any activities and courses relating to the above”.
17. Ms Young says if one actually looks to the report at page 501 in the bundle, the Judge got this wrong. The OASys Report at page 501 in the bundle states in part as follows:
“Mr Barry’s compliance with the terms of his licence for the Robbery conviction are described as showing a lack of engagement although not serious enough to warrant a recall to custody. The drugs related offences were committed whilst he was subject to licence conditions which ceased in July 2021 but he was not arrested until December of that year”.
18. Ms Young says when one considers paragraphs 27 of the Judge’s decision and when comparing it with the actual OASys Report at page 501, at best the Judge was speculating in relation to whether or not the Appellant had been compliant with any requirements set for him by the Probation Service in terms of activities and courses. Ms Young submits that the Judge got it wrong when she said that the Appellant had been positively compliant with his licence. That is because when looking at page 501 the actual position is that there were further drugs related offences committed whilst the Appellant was on licence. That licence period had ceased in July 2021 but the Appellant was not arrested until December of 2021. Ms Young submits that it is clear that therefore the Judge was wrong to conclude as she did when assessing the ‘very compelling circumstances’ assessment. The Judge should not have said that that this was a neutral or a positive factor in relation to the Appellant.
19. Mr Dingley observes that this and other aspects were matters which the Appellant was not specifically asked about during the evidence at the First-tier Tribunal, and he submits that many of the matters which are raised against the Appellant in the grounds of appeal were not matters raised in the Refusal Letter, in the Respondent’s Review or at the hearing. I hope this is not unfair criticism of Ms Leslie who appeared on behalf of the Secretary of State at the First-tier Tribunal hearing, but it is incumbent upon the Secretary of State to put the case clearly. Especially if there is seen to be, as in this case, extra importance placed on the public interest because the Tribunal is being asked to deal with a foreign offender, and in particular a foreign offender who had succeeded in his appeal the first time around but then went on to commit further very serious offences leading to long sentences of imprisonment.
20. Having said that, in my judgment this ground of appeal is made out. The Judge’s error relates to a very significant aspect of the case which unravels the whole of the Judge’s decision.
21. In my judgment the Judge did materially err in law in relation to the assessment of very compelling circumstances and in relation to the evidence which was before her. I take into account the clear and helpful submissions of Mr Dingley who has said and done all he can on behalf of the Appellant. I conclude though that this case did require the Judge to set out clearly and accurately why it was, despite the risks of exploitation, that an Appellant who had initially been successful in his appeal on the basis that there was minimal risk he would offend again due to his remorse and the support he would get, but whereby he had offended again very soon thereafter. The further offences the Appellant was convicted of were very serious offences.
22. Therefore, although Devaseelan applied and the Judge had to take First-tier Tribunal Judge Moxon’s decision which had allowed the earlier appeal against deportation as a starting point, the facts now before the Judge were significantly advanced compared to what was before First-tier Tribunal Judge Moxon. In my judgment the error of law is material and is manifest. Paragraph 27 of the Judge’s decision is wrong when looked at page 501 of the bundle which has the OASys report.
23. If it had been necessary to consider the other sub-grounds, in my judgment they too would have been made out because cumulatively they would have shown a material error of law. In my judgment, the Judge’s error relating to the licence and offending is of such significance and so fundamental that none of the Judge’s findings can stand.
Consideration and Analysis
24. The parties made submissions in respect of disposal and I am aware from an earlier case this morning that there is an attempt here at Bradford to ease the pressure on the First-tier Tribunal by retaining as many cases as possible in the Upper Tribunal. In this case however I do accept Mr Dingley’s submission that both parties’ appeal rights ought to be preserved and he submits that the matter be remitted to the First-tier Tribunal.
25. Applying AEB [2022] EWCA Civ 1512 and Begum (Remaking or remittal) Bangladesh [2023] UKUT 00046 (IAC), I carefully consider whether to retain the matter for remaking in the Upper Tribunal, in line with the general principle set out in statement 7 of the Senior President’s Practice Statement. I also take into consideration the history of this case, the nature and extent of the findings to be made as well as the fact that the nature of the errors of law in this case. I further consider that it would be unfair for either party to be unable to avail themselves of the two-tier decision-making process and I therefore remit the appeal to the First-tier Tribunal with no retained findings.
Notice of Decision
The decision of the First-tier Tribunal contains a material error of law.
The decision of the First-tier Tribunal is set aside and the matter is remitted to the First-tier Tribunal where there will be a complete rehearing on all issues.
There was a previous decision of First-tier Tribunal Judge Moxon, I am not interfering with that in any way whatsoever.
No anonymity order is made.

Abid Mahmood

Judge of the Upper Tribunal
Immigration and Asylum Chamber

13 August 2025