Tribunal decisions

The decision

IN THE UPPER TRIBUNAL
IMMIGRATION AND ASYLUM CHAMBER
Case No: UI-2025-003150

First-tier Tribunal No: HU/50439/2024
LH/00745/2025

THE IMMIGRATION ACTS

Decision & Reasons Issued:
On 12th of November 2025

Before
UPPER TRIBUNAL JUDGE NORTON-TAYLOR

Between
SECRETARY OF STATE FOR THE HOME DEPARTMENT
Appellant
and

DEQUANE ANTHONY COLE
(ANONYMITY DIRECTION NOT MADE)
Respondent

Representation:
For the appellant: Mr N Wain, Senior Presenting Officer
For the respondent: Mr J Wilson, Solicitor from Refugee and Migrant Centre

Heard remotely on CVP from Field House on 3 November 2025

DECISION AND REASONS
Introduction
1. I shall refer to the parties as they were before the First-tier Tribunal. Therefore, the Secretary of State is once more “the respondent” and Mr Cole is “the appellant”.

2. The respondent appeals with permission against the decision of First-tier Tribunal Judge JP Howard (“the judge”), promulgated on 15 June 2025, by which he allowed the appellant’s appeal against the respondent’s refusal of his human rights claim. That claim had three aspects to it: first, the appellant contended that he could succeed under Appendix FM to the Immigration Rules (“the Rules”) as he was in a genuine relationship with a person with settled status (“the partner”) and the couple had a son, born in 2022; second, that he could succeed under Appendix Private Life; third, that he could succeed in respect of a more general Article 8 proportionality assessment.

3. The respondent rejected all of those contentions. Amongst other matters, she relied on suitability grounds for rejecting the appellant’s claim under the Rules: the appellant had been convicted of offences whilst still a minor, but had failed to disclose all relevant information when making his application for leave to remain. The fact of the convictions, together with the non-disclosure, led the respondent to conclude that suitability grounds precluded success in respect of Appendix FM and Appendix Private Life. The respondent also concluded that removal would not be disproportionate.

The judge’s decision
4. The judge’s decision is in very many respects a model of clarity and careful consideration of the relevant issues. I intend no disrespect by not setting out in any real detail the relevant aspects of the decision, as the parties will be well-aware of what has been said.

5. In summary, the judge concluded as follows:
(a) The appellant had a genuine and subsisting relationship with his partner (a Jamaican national with ILR) and their child (a Jamaican national): [58] and [59];

(b) As the couple’s child was neither British nor had resided in this country for seven years, EX.1(a) could not be met: [59];

(c) In respect of Appendix FM, there would be very significant difficulties for the appellant and his partner to continue family life in Jamaica and those difficulties would entail “very serious hardship” for the couple. That conclusion was based on: the lengthy residence of the appellant and his partner in this country (both had arrived independently in 2002, the appellant aged 8 and his partner aged 6); they had no remaining family in Jamaica; had friends and family in this country; neither had a home to living in Jamaica. EX.1(b) was satisfied in principle: [60]-[63];

(d) However, the appellant could not succeed under Appendix FM on suitability grounds, specifically S-LTR.2.2: [56]-[57] and [64];

(e) In respect of Appendix Private Life, the appellant had not resided continuously in this country for 20 years or more, but there would be very significant obstacles to the appellant return to Jamaica: [67]-[72];

(f) However, as with Appendix FM, the appellant could not succeed under Appendix Private life because of the same suitability grounds: [65] and [73];

(g) Under Article 8(2) and having adopted a balance sheet approach, the appellant’s removal would be disproportionate. Essentially, this was on the basis of: factors relevant to the assessment under the Rules; the best interests of the couple’s child, which rested in him being with both parents and in the United Kingdom; and the presence of the appellant’s family members in this country. These considerations outweighed the public interest; [79]-[88].

6. Accordingly, the appeal was allowed.

The grounds of appeal
7. The grounds of appeal have been put forward under the rubric of a reasons challenge (this was confirmed by Mr Wain at the outset of the hearing). Certain passages within the grounds read as not very much more than re-assertions of submissions which might have been made to the judge. The core points put forward are that the judge erred by: first, failing to explain whether or not the couple had retained a “cultural nexus” to Jamaica; second, failing to explain whether the appellant and/or his partner could work in Jamaica in order to provide for themselves; third, failing to explain whether or not the couple could maintain links with their family in United Kingdom by way of modern communication methods.

8. Permission was granted on all grounds by the First-tier Tribunal.

Rule 24/skeleton argument
9. Mr Wilson provided a rule 24/skeleton argument in advance of the hearing. This asserts that the judge made no material errors of law and that the respondent’s challenge amounts to nothing more than a disagreement with sustainable findings.

10. There is no contention from the appellant that the judge was wrong in respect of the suitability findings as regards Appendix FM and Appendix Private Life.

The hearing
11. Mr Wain relied on the grounds and made the following submissions. Referring to [36] of Lal v SSHD [2019] EWCA Civ 1925, he contended that the assessment of whether insurmountable obstacles/very significant difficulties/unjustifiably harsh consequences existed involved a consideration of subjective and objective factors. An individual relying on Article 8 needed to demonstrate that there were no realistic means by which such difficulties, if found, could be mitigated. In the present case, Mr Wain submitted that the judge had failed to provide any reasons in respect of two objective factors: the ability of the appellant and/or his partner to find work in Jamaica and their ability to maintain contact with family members in United Kingdom by way of modern communications. This failure of reasoning related not simply to the consideration under the Rules, but also to the wider proportionality assessment.

12. Mr Wilson relied on his rule 24/skeleton argument. The thrust of his submissions was that, on the facts of this case, the judge had found in the appellant’s favour based on “emotional” and/or “psychological” factors, not so much practical considerations such the possibility of finding employment. In any event, the judge had not stated in terms that the couple could not live in Jamaica simply because of a lack of work or accommodation and it could be implied that he accepted that employment might be possible. The judge’s approach was implicit in what he had stated on the face of the decision. That approach was, it was submitted, open to the judge. To expect the judge to have addressed the issues of work and/or family contact in express terms was to seek a “counsel of perfection”.

13. In reply, Mr Wain referred me to [37] of Lal in which it was sufficiently clear that objective factors are relevant and that the possibility of obtaining employment was such a factor. If it had been properly considered and reasoned, it might have constituted a mitigating factor and therefore might have affected the overall outcome of the appeal.

14. At the end of the hearing, I reserved my decision.

Conclusions
15. My starting point is the need for appropriate restraint before interfering with a decision of the First-tier Tribunal, in line with numerous pronouncements from the higher courts.

16. I remind myself that a generous decision does not necessarily equate to an erroneous decision. The respondent’s challenge is put forward on a reasons basis only. Mr Wain confirmed that there was no perversity challenge in play and that much is clear from the unamended grounds.

17. As mentioned earlier, the judge’s decision is well-structured and adopts a clear and logical approach to the issues. The judge made clear findings on numerous matters relevant to the proportionality assessment in the context of the high threshold imposed by the exceptional circumstances/unjustifiably harsh consequences test. There is no doubt that the judge was cognisant of the significance of the appellant not being able to meet the Rules. The adoption of the balance sheet approach was appropriate. The judge clearly applied the relevant considerations under section 117B NIAA 2002.

18. In my judgment, the core issue for me to determine is whether the judge provided legally adequate reasons for his ultimate conclusion that the couple would face unjustifiably harsh consequences if required to continue family life together in Jamaica. The three specific matters relied on by the respondent in her grounds which are said to disclose an inadequacy of reasons are: first, the absence of finding on whether the couple “retained a cultural nexus to Jamaica”; second, the absence of a finding that the appellant and/or his partner could not work in Jamaica; and third, a failure to consider whether contact with family in United Kingdom could not be maintained through “modern means of communication and visits.”

19. As to the first matter, it is unclear to me what was meant by the phrase “retained a cultural nexus”. Mr Wain said nothing about it at the hearing and it seems to me to amount to not much more than a generalised assertion with possible undertones of stereotyping. Without referring to any evidence on the point which the judge is said to have overlooked, this aspect of the grounds is speculative and without merit.

20. The question of potential employment in Jamaica has more to it. The judge did not expressly refer to the ability of the appellant and/or his partner to obtain employment in Jamaica. I cannot say for sure whether point was emphasised in submissions before the judge, but I note that it did appear in the reasons for refusal letter and the respondent’s pre-hearing review.

21. Having regard to [36] and [37] of Lal, I accept that in principle an assessment of whether the couple’s relocation to Jamaica would entail unjustifiably harsh consequences involves both subjective and objective considerations. Although Lal was concerned with EX.1 and EX.2 and the insurmountable obstacles test, the point made in the relevant passages must surely have more general application.

22. It is clear to me that the judge provided more than adequate reasons for his finding that the couple would face very serious difficulties if they relocated to Jamaica with their young son. I accept that, in principle, an ability to obtain employment in the country of destination would be an objective factor which could potentially mitigate those difficulties.

23. There are, however, five difficulties with this aspect of the respondent’s challenge. First, on reflection it is difficult to see how the argument fits within a reasons challenge. The grounds have not been framed in terms of an alleged failure to take account of a relevant consideration. A reasons challenge involves consideration of the judge’s reasoning as a whole. Leaving aside the narrow issue of possible employment in Jamaica, the judge’s reasoning is more than adequate.

24. Second, at [50] the judge confirmed that he had taken account of all of the evidence and submissions made, “even where something is not expressly referred to in my decision.” Given the detailed nature of that decision, I am not persuaded that he simply ignored the respondent’s submission (albeit, only appearing in writing) on the work issue. Further, it is well-established that the judge need not provide specific reasons on each and every aspect of a party’s case provided that the overall reasoning is logical and sufficiently clear, as it is in this case.

25. Third, as Mr Wilson pointed out, there is in any event nothing in the judge’s decision to indicate that he was basing his conclusions on an assumption that the appellant and/or his partner could not obtain employment in Jamaica. Put another way, it is possible to reasonably infer that the judge operated from the assumption that some form of employment could be obtained, but he nonetheless concluded that in light of all relevant circumstances the unjustifiably harsh consequences test was met.

26. Fourth, reading the judge’s decision sensibly it would be wrong to categorise his approach as having focused entirely on subjective factors. He was not simply relying on the feelings of the appellant and/or his partner, albeit that they were relevant to the overall assessment. Rather, he set out a number of objectively-centred factors, including: the time spent away from Jamaica (the judge being cognisant of the fact that the appellant had not established continuous residence in this country since 2002); their ages when they left; the lack of assets or familial and social ties there; the child’s best interests; and the presence of family in the United Kingdom.

27. Fifth, the underlying evidence in respect of the employment prospects of the appellant and/or his partner was thin. The appellant has never formally worked and has relatively limited educational attainment. His partner appears to have been in work, although I cannot see much by way of detail. There was nothing clear and obvious in the evidence which indicated strong prospects of being able to obtain reasonable employment, particularly in light of the couple’s time away from Jamaica and lack of familial and social ties with the country.

28. Stepping back and returning to the need for appropriate respect for the judge’s decision, read sensibly and holistically, I conclude that he did not commit any errors of law.

29. Even if I was satisfied that the failure to expressly address the work issue did constitute an error of law, it was not material to the outcome. Having regard to the entirety of the judge’s assessment and accompanying reasons, it is inevitable that he would have reached the same ultimate conclusion even if he had stated in terms that the appellant and/or his partner could potentially obtain employment in Jamaica.

30. As for the third matter referred to at [18] above, the judge was not required to deal with each and every aspect of the evidence and submissions made. I am satisfied that he had in mind the possibility of maintaining contact with family members in the United Kingdom by way of modern means of communication. Reading the judge’s decision holistically, it is implicit that he regarded this particular point as peripheral. It was obvious that a relocation would entail physical separation of the couple from their friends and family members in this country and social media communications would have provided only minimal mitigation.

31. For the avoidance of any doubt, even though there is no perversity challenge before me, I conclude that the judge’s decision was rational.

32. I add the following observation, although my reasons for upholding the judge’s decision do not depend on it. If I had decided that an error had been committed and that it was material, I would have set the judge’s decision aside only on the narrowest of bases, namely the failure to have specifically addressed the work issue. I would have preserved all other findings. There had been no application by either party to reduce further evidence. The appeal would not have been remitted to the First-tier Tribunal and I would have proceeded to re-make the decision. In light of the preserved findings, the evidence as a whole, and having full regard to what is said in Lal, I would have come to precisely the same conclusion as that reached by the judge.

Anonymity
33. An anonymity direction is not appropriate in this case.

Notice of Decision
The making of the decision of the First-tier Tribunal did not involve the making of an error on a point of law.

The Secretary of State’s appeal to the Upper Tribunal is dismissed and the decision of the First-tier Tribunal stands.

H Norton-Taylor
Judge of the Upper Tribunal
Immigration and Asylum Chamber
Dated: 4 November 2025