Tribunal decisions

The decision

IN THE UPPER TRIBUNAL
IMMIGRATION AND ASYLUM CHAMBER
Case No: UI-2025-003084
UI-2025-003093

First-tier Tribunal No:
HU/50454/2024
EA/02825/2023

THE IMMIGRATION ACTS

Decision & Reasons Issued:
On 9th January 2026

Before

UPPER TRIBUNAL JUDGE KAMARA

Between

MR TOMASZ BONISLAWSKI
(NO ANONYMITY ORDER MADE)
Appellant
and

Secretary of State for the Home Department
Respondent

Representation:

For the Appellant: In person
For the Respondent: Ms S McKenzie, Senior Home Office Presenting Officer

Heard at Field House on 17 December 2025

DECISION AND REASONS
Introduction
1. Following an error of law hearing which took place on 10 September 2025 the First-tier Tribunal decision allowing the appellant’s appeal was set aside, albeit the First-tier Tribunal’s findings in respect of the appellant’s relationship with his partner and her children from a previous relationship were preserved.
2. Following the said error of law hearing, the appeal was retained in the Upper Tribunal for remaking on a future date to enable the appellant to have time to provide documentary evidence in support of his case.
Anonymity
3. No anonymity direction was made previously, and there is no reason for one now.
Factual Background
4. The appellant is a national of Poland now aged forty-five who arrived in the United Kingdom during 2013. He came to the attention of the United Kingdom authorities in 2018 when he was arrested for an offence. In January 2019 the appellant pleaded guilty to an offence of drink driving, was fined and disqualified from driving for 23 months.
5. On 7 June 2021 the appellant pleaded guilty to a further drink driving offence, was fined and disqualified from driving for 40 months.
6. The respondent granted him indefinite leave to remain under the EU Settlement Scheme on 8 June 2021.
7. On 31 March 2023, the appellant was convicted of dangerous driving and causing serious injury by dangerous driving and sentenced to one year of imprisonment. The 2021 drink-driving conviction relates to the same set of circumstances. The sentencing judge remarks that only six months had passed since the first period of disqualification from driving and that on this occasion, the appellant was caught with alcohol levels more than twice in excess of the legal limit. The judge also noted that the appellant was driving at over 45 mph on a residential road and that he must have known that the braking system on his vehicle was defective owing to the warning light on the dashboard. The sentencing remarks also list the injuries suffered by the victim and the adverse effect the incident has had on her quality of life.
8. A stage 1 deportation decision was made on 12 July 2023, following which the appellant’s submissions were considered. That consideration resulted in a further decision dated 13 September 2023 to refuse his human rights claim. The appellant appealed both decisions.
9. The First-tier Tribunal judge accepted that the appellant had a genuine and subsisting relationship with his partner as well as with her three children from a previous relationship. Only those findings are preserved.
10. In advance of the hearing, the appellant served two documents relating to two (hereinafter referred to as C1 and C2) of his partner’s three children on the respondent which were subsequently provided to the Upper Tribunal. Those documents were a 26-page assessment by a clinical psychologist in relation to C1 and a letter dated 11 November 2025 regarding C2.
11. In addition, the respondent filed the European Agency for Special Needs and Inclusive Education report on Poland, dating from 2023.
The remaking hearing
12. The hearing was attended, remotely, by the appellant and his partner ‘P,’ both of whom were given the opportunity to give their evidence in support of their case. That case was that it would be unduly harsh on P’s children (in particular, C1) for them to accompany the appellant to Poland or to remain in the United Kingdom without him.
13. Ms McKenzie cross-examined the appellant and P. I then heard submissions on behalf of the respondent. The appellant and P were given the opportunity to respond to Ms McKenzie’s submissions and make any further remarks. At the end of the hearing, the decision was reserved. The conclusions below reflect the evidence and submissions where necessary.
Discussion
14. This appeal turns on the application of Section 117C of the Nationality, Immigration and Asylum Act 2002, which sets out the legal test applicable where a foreign criminal who faces deportation maintains that his deportation would violate article 8 ECHR.
15. The said Section provides, in summary, that the deportation of foreign criminals is in the public interest and that the more serious the offence committed by a foreign criminal, the greater is the public interest in deportation of the criminal. In the case of a foreign criminal, like the appellant in this case, who has not been sentenced to a period of imprisonment of four years or more, the public interest requires deportation unless Exception 1 or Exception 2 applies. Only exception 2 was relied upon by the appellant.
16. Exception 2 applies where a foreign national offender 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 their deportation on the partner or child would be unduly harsh. In the appellant’s case, reliance was placed on his relationships with his partner’s children.
17. The appellant can properly be considered a medium offender because he was sentenced to twelve months imprisonment for the offences summarised above, at [7]. In this case, although the sentence is at the lower end of the spectrum, there is a significant public interest in deporting the appellant from the United Kingdom.
18. The best interests of the children affected by this decision are a primary consideration. It is accepted, in the absence of any contrary evidence, that their best interests is likely to be accommodated by maintaining the status quo and avoiding change to their family circumstances.
19. The relevant legal principles are set out in HA (Iraq) [2022] UKSC 22 and KO (Nigeria) in which the Supreme Court endorsed the Upper Tribunal’s decision in MK (section 55 – Tribunal options) [2015] UKUT 223 (IAC), holding [at 46] that 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.’
20. The focus of the appellant’s argument under Exception 2 to deportation was whether the effect of his deportation would be unduly harsh on C1, in particular. As noted above, the parties agreed that the appellant has a genuine and subsisting relationship with C1 and that C1 is a British citizen and is therefore a ‘qualifying child’ for the purposes of section 117D(1)(a) of the 2002 Act.
21. The findings of the First-tier Tribunal as to the genuine nature of the appellant’s relationship with his stepchildren are preserved and have been taken into consideration. I set out the judge’s reasoning here.
13. My reasons for my conclusion about the genuine subsisting parental relationships are as follows:
(a) the sentencing judge’s remarks refer to [P’s] reference setting out what a good stepparent the appellant has been;
(b) the children’s biological father lives a long way away in {REDACTED]. I accept the appellant’s evidence that the biological father visits approximately three times a year but the children have never been to stay with him;
(c) the appellant had detailed knowledge of the children which he gave in oral evidence. This included explaining what had happened at a parents evening the week before, details of one of the children’s illness (cancer) and the recent diagnosis of that same child with autism;
(d) the appellant detailed having lived with them since 2018 except the six months that he spent in prison. This is a substantial period of time in the life of quite young children who are 9 (in respect of the twins) and 11.
22. Ms McKenzie did not urge me to depart from the preserved findings.
23. The appellant’s case focuses on the needs of C1 and to a lesser extent, C2. The psychologist’s assessment of C1 states that a multi-disciplinary team confirmed that he has a diagnosis of Autism Spectrum Disorder (ASD); confirms his extensive physical health history and his developmental issues. There was no challenge as to the content of this detailed report on behalf of the respondent.
24. The NHS letter in respect of C2 confirms that he has recently been referred to a service offering emotional wellbeing and mental health support to children and young people.
25. For the respondent Ms McKenzie relied on the European Agency for Special Needs and Inclusive Education report on Poland. She drew the Tribunal’s attention to the provision made in Poland for children with special needs including for learning disabilities and autism. In relation to C2, she pointed to the limited nature of this evidence.
26. Having considered all the evidence both oral and written as well as the submissions made, I find, on balance that it would be unduly harsh to expect C1 to accompany the appellant to Poland for the following reasons. C1 is aged 10 and has experienced poor physical health including cancer, a congenital heart defect, hypertension, difficulties with speech, and sleep apnoea; the latter resulting in an operation to remove his tonsils. The current concerns which led to the ASD assessment arose from his poor progress at school, a learning age 3 years below his current age and difficulty in retaining information.
27. At the time of that assessment in early 2025, C1 also had a diagnosis of Wilms tumour.
28. Prior to the referral for a diagnosis, C1 had a statement of special educational needs, Speech and Language support since the age of 2 and an Occupational Therapist for his sensory needs. C1 also had a history of self-harming and P raised further concerns about his behaviour at home, including physical aggression towards her.
29. A number of recommendations were made in the report for C1’s schooling. I do not doubt that Poland has adequate facilities for diagnosing and treating developmental disorders. The presence of the appellant’s parents, sibling and child in Poland has also been considered. Nonetheless, as is apparent from the report, at his young age C1 has experienced a series of serious medical conditions including the Wilms tumour listed under his current medical conditions. The report confirms P’s evidence as to C1’s difficulty with learning as well as many concerns with his ability to communicate and be understood by others. Given that his development is so delayed despite the considerable support provided at his primary school over many years, it is likely that uprooting him to Poland where he would need to learn a new language would set back his development further.
30. In addition, while not mentioned in the report, the evidence before the Tribunal was that C1 along with his siblings has a relationship with his biological father, contact being regular but infrequent owing, principally, to geographical distance. Again, it is likely that requiring C1’s father to travel to another country would adversely affect C1’s ability to have in person contact with his father.
31. Lastly, P made reference to having a support network in the United Kingdom and in particular mentioned the assistance she receives from a sister. Those matters are relevant to how C1 would fare were he to live in Poland. In conclusion, the evidence before me shows that it would not just be harsh, but unduly harsh to expect C1 to accompany the appellant to Poland, along with the rest of his family.
32. In contrast to my finding above, I conclude that it would not be unduly harsh for C1 individually, P or all the children to remain in the United Kingdom without the appellant. There was an absence of evidence as to the likely effect of the appellant’s deportation on any of the children. Ms McKenzie correctly noted that in the report on C1, there is no mention of the appellant. This is despite the current family composition being summarised at page 8 of the report, following an interview of P. By contrast, throughout this lengthy report, P and C1’s siblings are frequently mentioned along with several references to the family pet and C1’s only schoolfriend.
33. In response to questions posed in cross-examination about the absence of mention of the appellant in the report, the appellant stated that he had been a part of the family unit since C1 was aged 4; that he had been busy working but had recently changed jobs and was now taking part in the school run. I have carefully considered P’s evidence that she believes that it would be “detrimental” to the children to remain in the United Kingdom without the appellant as he had been their father figure.
34. Consideration has been given to the report on C1 to see if any insight can be gleaned into his ability to cope with the absence of the appellant from the household. The Revised Child Anxiety and Depression Scale (RCADS) self-report questionnaire which addresses separation anxiety disorder, social phobia, generalized anxiety disorder, panic disorder, obsessive compulsive disorder, and low mood (major depressive disorder). Regarding these conditions, C1’s scores were ‘typical’ except for separation anxiety and social phobia which were described as ‘mildly elevated.’ Furthermore, on page 7 of the report it is said that C1 ‘does appear to cope well with change, except with material items such as clothing.’ There is, therefore, nothing in the professional assessment of C1 to indicate that the effect of the deportation of the appellant would be unduly harsh on him.
35. Similarly, while I accept that it is likely that the deportation of the appellant would have an adverse emotional effect on P and the children remaining behind which could be considered to be harsh, there is no evidence to support a finding of undue harshness. The appellant’s deportation and his separation from C1 does not render the effects of the appellant’s deportation on C1 to be unduly harsh.
36. For completeness, I note that the appellant did not claim that the effect of his deportation would be unduly harsh on P. Had he done so, that claim would have been rejected for the following reasons.
37. P indicated that she experienced poor mental health however, there was no supporting documentary evidence, and her oral evidence to the Tribunal was that she was not receiving any medical treatment and nor was she prescribed any medication.
38. The background country evidence relied upon by the respondent establishes the unsurprising position that medical treatment, including for mental health, is available in Poland. In conclusion, there is no evidence that it would be harsh on P, let alone unduly harsh to expect her to accompany the appellant to Poland.
39. Exception 2 of section 117C(5) of the 2002 Act is not, therefore, made out.
40. No additional factors were relied upon other than the effect of the appellant’s deportation on the children as discussed above. It follows that there are no very compelling circumstances over and above the Exceptions to deportation.
41. The deportation of the appellant would not be disproportionate and would not amount to a breach of Article 8 ECHR.
Notice of Decision
The appeal is dismissed.

T Kamara

Judge of the Upper Tribunal
Immigration and Asylum Chamber

2 January 2026

NOTIFICATION OF APPEAL RIGHTS

1. A person seeking permission to appeal against this decision must make a written application to the Upper Tribunal. Any such application must be received by the Upper Tribunal within the appropriate period after this decision was sent to the person making the application. The appropriate period varies, as follows, according to the location of the individual and the way in which the Upper Tribunal’s decision was sent:

2. Where the person who appealed to the First-tier Tribunal is in the United Kingdom at the time that the application for permission to appeal is made, and is not in detention under the Immigration Acts, the appropriate period is 12 working days (10 working days, if the notice of decision is sent electronically).

3. Where the person making the application is in detention under the Immigration Acts, the appropriate period is 7 working days (5 working days, if the notice of decision is sent electronically).

4. Where the person who appealed to the First-tier Tribunal is outside the United Kingdom at the time that the application for permission to appeal is made, the appropriate period is 38 days (10 working days, if the notice of decision is sent electronically).

5. A “working day” means any day except a Saturday or a Sunday, Christmas Day, Good Friday or a bank holiday.

6. The date when the decision is “sent’ is that appearing on the covering letter or covering email