Tribunal decisions

The decision

IN THE UPPER TRIBUNAL
IMMIGRATION AND ASYLUM CHAMBER Case No: UI-2025-002816
First-tier Tribunal No: HU/50016/2024
LH/03120/2024

THE IMMIGRATION ACTS

Decision & Reasons Issued:
On 17 July 2026

Before

UPPER TRIBUNAL JUDGE NEVILLE

Between

Secretary of State for the Home Department
Appellant
and

Faisal Zenuwah
Respondent

Representation:
For the Appellant: Mr M Pugh, Senior Presenting Officer
For the Respondent: Ms C Nicholas, counsel instructed directly

Heard at Field House on 3 July 2026

DECISION AND REASONS
1. The Secretary of State appeals against the decision of the First-tier Tribunal (“FtT”) on 24 March 2025 to allow Mr Zenuwah’s appeal against the refusal of his human rights claim on 18 December 2023. The Secretary of State’s grounds of appeal all relate to the FtT’s decision that the effect of deporting Mr Zenuwah would be unduly harsh on his qualifying children. They overlap considerably, and can instead be approached as different limbs of the same challenge: that the FtT did not apply the correct test as to what the test of ‘unduly harsh’ requires or, if it did, inadequate reasons were given for why it was met on the ‘go’ scenario.
2. Two additional pleaded grounds fell away by the time of the hearing. The first is that the FtT gave inadequate reasons for finding that the effect of the ‘stay’ scenario, being that Mr Zenuwah is deported and his partner and children remain in the UK, would be unduly harsh. As acknowledged by Mr Pugh at the hearing, and implicitly within the written grounds themselves, even if that error were established it could not be material to the outcome. The stay scenario argued as not unduly harsh would rely on the children’s mother remaining in the UK, but she is also subject to deportation action; part of the challenge to the FtT’s findings on the go scenario is that the FtT failed to appreciate that fact. Plainly it is not open to the respondent to argue that the children’s mother will stay in the UK or that the children should do so without a primary carer, and nor does she seek to do so.
3. Second, the Secretary of State had alleged that Mr Zenuwah misled the FtT by giving evidence that two of his children’s applications for British citizenship were still pending when in fact they had been refused. As since established when the Home Office upheld a complain by Mr Zenuwah, those refusal decisions had not been sent so he could not have known about them.
Consideration
4. In my view the remaining grounds overlap, as the FtT’s understanding and application of the relevant test may be informed by its conclusions and the reasoning in support. The respondent’s overarching submission is that the FtT lost sight of the “elevated standard” required when deciding if the effect of deportation is unduly harsh.
5. The need for elevated standard to be met is made clear in HA (Iraq) v Secretary of State for the Home Department [2022] UKSC 22:
41. […] I consider that the best approach is to follow the guidance which was stated to be “authoritative” in KO (Nigeria), namely the MK self-direction:
“… ‘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.”
42. This direction has been cited and applied in many tribunal decisions. It recognises that the level of harshness which is “acceptable” or “justifiable” in the context of the public interest in the deportation of foreign criminals involves an “elevated” threshold or standard. It further recognises that “unduly” raises that elevated standard “still higher” - ie it involves a highly elevated threshold or standard. As Underhill LJ observed at para 52, it is nevertheless not as high as that set by the “very compelling circumstances” test in section 117C(6).
43. Whilst it may be said that the self-direction involves the use of synonyms rather than the statutory language, it is apparent that the statutory language has caused real difficulties for courts and tribunals, as borne out by the fact that this is the second case before this court relating to that language within four years. In these circumstances I consider that it is appropriate for the MK self-direction to be adopted and applied, in accordance with the approval given to it in KO (Nigeria) itself.
44. Having given that self-direction, and recognised that it involves an appropriately elevated standard, it is for the tribunal to make an informed assessment of the effect of deportation on the qualifying child or partner and to make an evaluative judgment as to whether that elevated standard has been met on the facts and circumstances of the case before it.
6. The FtT did not directly cite HA (Iraq), so I turn to the reasons it did give. The FtT began by explaining why it was appropriate to depart from the conclusions reached in a previous appeal:
15. I find that since that decision was made there has been a significant passage of time (eight years), during which the children’s ties to the UK will, as a matter of common sense, have deepened, as well as their alienation from Ghana. In addition the appellant’s older children, now aged sixteen and fourteen, have applied for British Citizenship and his youngest child, aged eleven and born in the UK, is now British.
16. I am satisfied that the passage of time is a fact on which I can rely in order to depart from the previous judge’s decision. I find that the situation before me is factually very different to that before the previous judge.
7. The FtT then began its own assessment:
s.117C (5) Nationality, Immigration and Asylum Act 2002
16. It is not a matter of dispute that the appellant’s children are qualifying children and that he has a genuine and subsisting relationship with them. The question for me therefore is whether the effect of the appellant’s deportation would be unduly harsh on them.
Best Interests
17. A primary consideration for me in this assessment is what is in the children’s best interests. Although I find that there have been periods of time when the older two children lived separately from the appellant (when they lived in Ghana with their mother) I find that since 2011, aside from the time when their parents were in prison the family have lived together as a unit and continue to do so. I am therefore satisfied that as a matter of common sense it is in the children’s best interests for this arrangement to continue.
8. Pausing for a moment, I do not consider that initial assessment of the children’s best interests to be incompatible with the self-contained nature of Exception 2 as contained at section 117C(5): see HA (Iraq) at [18(v)], [98]. One reason given by the Supreme Court for rejecting the Secretary of State’s suggested construction of section 177C(5) was that it would hamper “a clear idea of a child’s circumstances and of what is in a child's best interests” and the carrying out of “a careful examination of all relevant factors when the interests of a child are involved”: [37].
9. That provides the context for the next part of the FtT’s analysis:
18. As to where the family unit should be located I have no hesitation in concluding that it is in the children’s best interests for this to be in the UK. The two older children have now lived in the UK for over half of their lives, and the youngest child has never lived elsewhere. In accordance with Azimi-Moayed and others (decisions affecting children; onward appeals) [2013] UKUT 197(IAC) I remind myself in particular that:
“iii) Lengthy residence in a country other than the state of origin can lead to development of social cultural and educational ties that it would be inappropriate to disrupt, in the absence of compelling reason to the contrary. What amounts to lengthy residence is not clear cut but past and present policies have identified seven years as a relevant period.
iv) Apart from the terms of published policies and rules, the Tribunal notes that seven years from age four is likely to be more significant to a child that the first seven years of life. Very young children are focussed on their parents rather than their peers and are adaptable.”
19. The two older children have lived in the UK fourteen years and the youngest for eleven years, far in excess, I find, of the recognised seven years. I find that the three children have completed all of their education in the UK and have built the entirety of their social, cultural and educational ties in this country. Whilst I accept that they may have cultural links to Ghana through their parents and extended family members I am satisfied that their primary cultural link will be to the UK.
20. Although the best interests of the children are not decisive in my consideration of undue harshness I find that it does inform my assessment of this issue. I also remind myself that undue harshness is a matter to be evaluated only with reference to the child (the “sins of the father” do not fall on the child).
10. It then addressed the ‘go’ scenario:
Unduly Harsh – Go
21. Mr. Ali submitted that it would not be unduly harsh for the children to move to Ghana because it is a country to which people go on holiday. However, in considering this issue I must take into account more than the country circumstances, albeit that they are relevant. Whilst I accept that there are no intrinsic problems in Ghana it is the impact on the three children that I must assess, two of whom have lived for the majority of their lives in the UK, and one of whom was born here, has never lived elsewhere and is a British citizen.
22. Although the children have relatives in Ghana there is no evidence before me that they have any particular contact with them. Further, even if I am persuaded, as Mr. Ali would have me find, that the appellant would be able to access accommodation and employment, and the children schooling, it is the impact to the children of being required to leave the UK, the disruption of their schooling and the severing of their social and cultural ties to the UK that I find are the weightier issues.
23. I find that the length of the children’s residence in the UK is very significant. As I have set out above they have lived in the UK for a period far in excess of the seven years identified by the Upper Tribunal as being significant, and these years have also been completed both before and after four years of age. I find that the second appellant was barely a year old when she travelled to the UK and I find it more probable than not that she does not have any memories of Ghana, and that her older brother’s memories from the age of three years would be hazy at most. The appellant’s youngest son has never been to Ghana and is a British Citizen, with all of the advantages to which this status entitles him.
24. I am satisfied that the children have undertaken all of their education in this country and remain at important stages of their learning. Two of them have lived here for the majority of their lives and the youngest has never lived anywhere else. I find that their social, cultural and educational identities are bound to the UK. In these circumstances I am satisfied that to force the children to move to Ghana would leave them to face a situation that can be considered as bleak or severe, notwithstanding the parental support that they would have. I am therefore satisfied that it would be unduly harsh for the appellant’s children to have to move to Ghana.
11. The grounds as developed by Mr Pugh draw attention to three aspects of this reasoning as together showing that the FtT erred: first, the reference to the children being alienated from Ghana overstates the evidence, which instead showed continuing knowledge and cultural connection to that country; second, the similar finding that their memories will only be ‘hazy’; and third, the reliance on Azimi-Moayed, a case that did not concern deportation.
12. I remind myself that the FtT’s reasons must be read fairly and as a whole, without focusing merely on individual phrases or passages in isolation and without being hypercritical: DPP Law Ltd v Greenberg [2021] EWCA Civ 672 at [57], as cited in the Practice Direction: Reasons for decisions.
13. Adhering to those principles, it plain that the FtT was engaged overall in assessing the nature of the children’s life in the UK in order to assess the harshness of its cessation by relocation to Ghana. I reject that the FtT impermissibly found the children to be alienated from Ghana in an absolute sense, it simply used the word to describe a reduction in cultural and social connections. It was likewise unobjectionable for it to use the word ‘hazy’ to describe a teenager’s memories of being three years old. These observations are part of a larger whole and should not be picked out in isolation and presented as failing by themselves to justify the final conclusion.
14. I am likewise satisfied that, applying the benevolent approach cited in the Practice Direction, that the FtT did not purport to rely on Azimi-Moayed for its guidance on dealing with non-deportation cases, or because seven years’ residence was thought to carry dispositive rather than normative weight, but instead for its recital of the common-sense consequences that might be expected to flow from residence of that length. Its subsequent focus was on what the actual evidence revealed about these children’s connection to the UK. That assessment will have been made by reference to all the evidence, without the FtT being required to set it all out. Ms Nicholas referred me to the finding under the stay scenario as to the children being settled and doing well academically, and the evidence underlying it.
15. One child does have British citizenship, and a point made in the grounds is that the FtT mistakenly thought that his exclusion from the UK would be permanent rather than until he was an adult and could return. I cannot see that the FtT made that mistake, nor that its conclusions rested on the children’s relative long-term prospects in each country. This also meets the Secretary of State’s concern that the FtT ought to have attributed significance to the children’s mother being deported to Ghana herself; it was accepted that the family could support itself.
16. Against that background, I turn to the FtT’s reasoning. While the FtT did not directly refer to HA (Iraq), there are two reasons to think that it was aware of the authority. First, it is settled that judges in the FtT are to be taken as aware of the relevant authorities and to be seeking to apply them without needing to refer to them specifically, unless it is clear from their language that they have failed to do so: AA (Nigeria) v Secretary of State for the Home Department [2020] EWCA Civ 1296 and the Practice Direction. Second, it refers to consequences being considered ‘bleak or severe’, those words being taken from the correct test.
17. The FtT did omit any express reference to the test being elevated above those synonyms. It would no doubt have been better, and would have avoided the need for this appeal, if it had done so. On careful consideration however, I do not consider that this experienced Tribunal lost sight of the ‘unduly’ half of the two word test. The Secretary of State disavows any claim that the outcome is one that no reasonable decision-maker could reach, simply arguing that it lacks adequate reasoning on this occasion. I have rejected the specific criticisms of the FtT’s reasoning. I decline to treat this particular type of appeal as exceptionally imposing a hard-edged and freestanding requirement on Courts and Tribunals to expressly set out every element of the relevant test, contrary to AA (Nigeria) and the Practice Direction. There is no error of law in the FtT’s decision.
Notice of Decision
(i) The Secretary of State’s appeal is dismissed.
(ii) The decision of the First-tier Tribunal to allow Faisal Zenuwah’s appeal stands.

UTJ Neville

Judge of the Upper Tribunal
Immigration and Asylum Chamber

6 July 2026