Tribunal decisions

The decision

IN THE UPPER TRIBUNAL
IMMIGRATION AND ASYLUM CHAMBER Case No: UI-2025-003183
First-tier Tribunal No: HU/01650/2024

THE IMMIGRATION ACTS

Decision & Reasons Issued:

9th August 2026

Before

UPPER TRIBUNAL JUDGE HOFFMAN

Between

UMA PRITHEAV RAJAN
(NO ANONYMITY ORDER MADE)
Appellant
and

SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: Mr C Bishop of Counsel, instructed by Latitude Law
For the Respondent: Mr M Pugh, Senior Home Office Presenting Officer

Heard at the Royal Courts of Justice on 2 March 2026 and Field House on 16 July 2026

DECISION AND REASONS
1. The appellant appeals against the respondent’s decision dated 29 August 2024 refusing his human rights claim in the context of a decision to deport him to Sri Lanka as a foreign national offender.
2. The appellant’s appeal was initially allowed by the First-tier Tribunal in a decision promulgated on 3 April 2025. However, by a decision dated 3 December 2025, I set aside that determination on the basis that it was vitiated by a material error of law, whilst preserving certain findings. A copy of the error of law decision is annexed to this determination. The appeal subsequently came before me for remaking on 2 March 2026. Unfortunately, owing to an unacceptable delay by the Prison Service in producing the appellant to the hearing, together with a technical issue that prevented the appellant’s partner from giving evidence remotely, the hearing was adjourned part-heard. The matter resumed on 16 July 2026, by which time the appellant had been released from custody.
3. For the reasons given below, I dismiss the appellant’s appeal.
Background
4. The appellant was born in Sri Lanka in 1992. He entered the United Kingdom with his family in 2006, at the age of 13. On 11 September 2008, he was granted indefinite leave to remain.
5. In October 2021, the appellant entered into a religious marriage with his partner, Shivanuja Pathmanathan, a German national whose parents emigrated to Germany from Sri Lanka. The couple have two children: S, born in May 2021, and P, born in October 2023. It is common ground that both children are dual British and German nationals and do not hold Sri Lankan citizenship.
6. On 29 April 2022, the appellant was convicted at Leicester and Rutland Magistrates’ Court of driving a motor vehicle with the proportion of a controlled drug in his body exceeding the specified limit. He was disqualified from driving for 14 months and fined £200.
7. On 11 January 2024, the appellant was sentenced at Southampton Crown Court following his conviction for two counts of possession of a Class A controlled drug with intent to supply and one count of possession of a Class B controlled drug. On the same date, he was also sentenced at Leicester Crown Court following his conviction for one count of possession of a Class A controlled drug with intent to supply and one count of possession of a Class B controlled drug with intent to supply. Across both sets of proceedings, the appellant received a total sentence of 70 months’ imprisonment.
8. As a consequence of the appellant’s conviction for drugs offences, on 29 January 2024, the respondent served him with a Stage 1 deportation decision notifying the appellant that she was minded to deport him to Sri Lanka. In response, the appellant submitted human rights representations to the respondent explaining why he should not be deported. However, in the Stage 2 decision dated 29 August 2024, the respondent refused the appellant’s human rights claim.
9. In summary, the respondent accepted that the appellant enjoyed private and family life in the United Kingdom, including a genuine and subsisting relationship with his partner and children, and that he had been lawfully resident and socially and culturally integrated in the UK for most of his life. Nevertheless, the respondent concluded that the seriousness of the appellant’s offending gave rise to a very strong public interest in his deportation. It was not accepted that there would be very significant obstacles to the appellant’s reintegration in Sri Lanka, nor that deportation would be unduly harsh for his partner or children, whether they remained in the United Kingdom or accompanied him to Sri Lanka. The respondent further concluded that there were no very compelling circumstances sufficient to outweigh the public interest in deportation.
The hearing
10. As explained above, the remaking hearing took place across two days in March and July 2026. I heard evidence from the appellant and his partner, which is set out in their written statements and the record of proceedings, and is not therefore rehearsed here except where necessary to do so.
11. I had the following materials before me:
a. the bundle prepared for the error of law hearing, which included both parties’ evidence before the First-tier Tribunal;

b. the appellant’s updated bundle of evidence dated 9 February 2026;

c. the appellant’s skeleton argument dated 16 February 2026;

d. the appellant’s addendum bundle of evidence filed on 9 July 2026; and

e. a copy of the German Nationality Act of 22 July 1913 (last amended by Article 1 of the Act of 22 March 2024) relied upon by the respondent.
The application to rely on new evidence
12. As the appellant’s addendum bundle was filed in breach of the direction requiring any updated evidence to be served by 9 February 2026, I considered at the second hearing the appellant’s application for an extension of time to rely upon that material. Mr Pugh did not oppose the application.
13. I granted the application for the following reasons. Although the failure to comply with the direction was both serious and significant, I was satisfied that an adequate explanation had been provided for the delay. In particular, following the hearing on 2 March 2026, the appellant had been released from custody and sought to place before the Tribunal updated evidence concerning his current circumstances. Taking account of all the circumstances, including the importance of compliance with the Tribunal’s directions and the Procedure Rules, the absence of any objection from the respondent, and the need for the Tribunal to have the benefit of up-to-date evidence when determining the appeal, I concluded that it was in the interests of justice to extend time and admit the additional evidence.
The appellant’s submissions
14. On behalf of the appellant, Mr Bishop submitted that the preserved findings meant that the “stay” scenario had already been resolved in the appellant’s favour and that the remaining issue was whether it would be unduly harsh for the family to relocate to Sri Lanka. He argued that S’s extensive special educational needs, as reflected in his EHCP and the expert evidence, made stability and continuity of support critically important. Relocation to Sri Lanka would involve a profound disruption to S’s routine, support network and educational provision, with a significant risk of regression and lasting harm. Mr Bishop submitted that the respondent had not challenged the evidence concerning the likely impact of such disruption and that the consequences for S comfortably exceeded the elevated threshold required by the unduly harsh test.
15. Mr Bishop further submitted that the respondent’s case in relation to Sri Lankan citizenship was speculative. The children were not Sri Lankan citizens and there was no evidential basis for concluding that they would be able to acquire such citizenship or that it would be reasonable to require them to relinquish their German nationality. He argued that, without Sri Lankan citizenship, access to suitable education and support would be significantly restricted and, in any event, the available provision fell materially short of that currently available to S in the United Kingdom. Finally, relying upon the preserved findings regarding the appellant’s long lawful residence, integration, rehabilitation, family life and the impact of deportation on his children, Mr Bishop submitted that, even if Exception 2 were not met, the cumulative effect of those factors amounted to very compelling circumstances outweighing the public interest in deportation.
The respondent’s submissions
16. On behalf of the respondent, Mr Pugh submitted that the central issue was whether the consequences for the appellant’s son, S, of relocating to Sri Lanka would be unduly harsh. He accepted that the expert evidence had largely addressed concerns previously expressed about educational provision in Sri Lanka and accepted the evidence concerning S’s current needs. However, he argued that, if the children were able to obtain Sri Lankan citizenship, adequate educational provision for children with special educational needs would be available, whether through the state system or private education. He submitted that the appellant had not demonstrated that the children would be unable to acquire Sri Lankan citizenship, that any requirement to relinquish German citizenship would not itself be unduly harsh, and that the evidence relating to educational costs and the family’s financial circumstances was insufficient to establish that suitable provision would be unaffordable.
17. Mr Pugh further submitted that the disruption caused by relocation, whilst undoubtedly difficult for S, would be temporary and fell short of the elevated threshold required by the unduly harsh test. He argued that the family had potential financial resources, including equity in their property and possible support from relatives, and that the appellant had not established that suitable educational and support arrangements could not be secured in Sri Lanka. Accordingly, he submitted that neither Exception 2 nor the test of very compelling circumstances was met and that the appeal should be dismissed.
18. At the end of the hearing, I reserved my decision.
Issues
19. In the error of law decision dated 3 December 2025, I preserved the findings made by the First-tier Tribunal that: (a) the appellant did not meet the requirements of the private life exception to deportation under s.117C(4) of the Nationality Immigration and Asylum Act 2002 (“the 2002 Act”); and (b), for the purposes of the family life exception under s.117C(5), it would be unduly harsh for the appellant’s children to remain in the United Kingdom without their father.
20. Therefore, the parties agreed that the issues left for me to determine were:
a. Whether it would be unduly harsh for the appellant’s family to relocate to Sri Lanka with him; and

b. If not, whether there were any very compelling circumstances to the appellant’s case capable of outweighing the public interest in his deportation under s.117C(6).
The legal framework
21. The deportation of foreign national offenders is governed by the UK Borders Act 2007 Act (“the 2007 Act”). Section 32 provides for the automatic deportation of foreign criminals sentenced to at least 12 months' imprisonment. Section 33 sets out the exceptions to automatic deportation. For the purposes of the present appeal, this includes where the person’s deportation would breach their rights under the ECHR: see s.33(2)(a).
22. Section 117C of the 2002 Act sets out considerations that a court or tribunal must take into account when considering the Article 8 ECHR rights of a foreign criminal appealing against a decision to deport them from the UK:
117C Article 8: additional considerations in cases involving foreign criminals

(1) The deportation of foreign criminals is in the public interest.

(2) The more serious the offence committed by a foreign criminal, the greater is the public interest in deportation of the criminal.

(3) In the case of a foreign criminal (“C”) who has not been sentenced to a period of imprisonment of four years or more, the public interest requires C's deportation unless Exception 1 or Exception 2 applies.

(4)  Exception 1 applies where—
(a)  C has been lawfully resident in the United Kingdom for most of C's life,
(b)  C is socially and culturally integrated in the United Kingdom, and
(c)  there would be very significant obstacles to C's integration into the country to which C is proposed to be deported.

(5)  Exception 2 applies where C 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 C's deportation on the partner or child would be unduly harsh.

(6)  In the case of a foreign criminal who has been sentenced to a period of imprisonment of at least four years, the public interest requires deportation unless there are very compelling circumstances, over and above those described in Exceptions 1 and 2.

(7)  The considerations in subsections (1) to (6) are to be taken into account where a court or tribunal is considering a decision to deport a foreign criminal only to the extent that the reason for the decision was the offence or offences for which the criminal has been convicted.
23. The burden of proof is on the appellant to prove the facts of his case applying the civil standard of balance of probabilities. The relevant date is the date of the hearing.
Findings
24. There is no dispute that the appellant meets the definition of a “foreign criminal” under s.32 of the 2007 Act: he is not a British citizen; he has been convicted in the UK of an offence; and he was sentenced to a period of imprisonment exceeding 12 months. Under s.32 of the 2007 Act and s.117C(1) of the 2002 Act, Parliament has made it clear that the deportation of a foreign criminal is conducive to the public good and in the public interest. Furthermore, under s.117C(2), the more serious the offence committed, the greater the public interest is in their deportation.
25. Under s.117C(3), in the case of a foreign criminal who has not been sentenced to a period of imprisonment of four years or more, the public interest requires their deportation unless they can demonstrate that they meet Exception 1 (private life) or Exception 2 (family life with a qualifying partner or child). If the person cannot meet either exception, their Article 8 appeal can only succeed if there are any very compelling circumstances to the case pursuant to subsection (6).
26. Although the appellant received an aggregate sentence of 70 months’ imprisonment, none of the individual sentences imposed exceeded four years. Accordingly, this is not a case in which the appellant can succeed only by demonstrating very compelling circumstances over and above Exceptions 1 and 2: see s.117D(4)(b) of the 2002 Act.
Exception 2: The “Go” scenario
27. In making my findings in relation to Exception 2 and the undue harshness test, I remind myself of the self-direction at [46] in the case of MK (section 55 – Tribunal options) Sierra Leone [2015] UKUT 00223 (IAC):
“By way of self-direction, we are mindful 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.”
The appellant’s children
28. The appellant’s case under the “Go” scenario in Exception 2 rests principally upon the circumstances and needs of his eldest child, S. At the date of the hearing, S was five years old. According to an Educational Psychology Advice Report obtained by Leicestershire SEND and dated 23 January 2025, S’s receptive and expressive language skills are significantly delayed and he does not use words for communicative purposes. He displays difficulties with shared attention and concentration, struggles to follow adult instructions, has a short attention span and is easily distracted, and has limited reciprocal and social communication skills. Although he plays alongside other children, he does not generally engage in play with them. The report further records that he had “recently started struggling with transitions at home and nursery” and that he becomes upset, crying or having tantrums in response to changes in routine.
29. The same report also records a number of strengths. S’s gross and fine motor skills are developing appropriately, there are no concerns regarding his health, vision or hearing, and he is able to manage meals independently, albeit with some fussiness. He had recently begun using the toilet at nursery, although he continued to require support with the various steps involved and with hygiene routines.
30. The Educational Psychology Advice Report states that S “requires a higher than usual level of adult support” and that his needs are “likely long term in nature”. It recommends a paediatric assessment in light of concerns regarding his social communication and interaction skills and concludes that he would benefit from a curriculum tailored to his level of attainment and pace of learning, with a particular focus on developing shared attention, language and communication skills.
31. A Leicestershire SEND Education, Health and Care Plan (“EHCP”) dated February 2025 largely echoes the findings of the Educational Psychology Advice Report. It records that S has no identified health diagnosis but sets out extensive special educational provision required to meet his needs. This includes a structured curriculum focused on engagement, shared attention, concentration and basic communication skills, supported by targeted interventions. The strategies identified include the delivery of instructions on a one-to-one basis, teaching in a quiet environment or small group setting, modelling of all tasks, and structured support during transitions. The EHCP further provides for adult-supported story time, individual phonics sessions, mathematics and literacy teaching in small groups with a high level of direct adult support, “Attention Autism” or a similar intervention aimed at developing listening and attention skills, and adult assistance during carpet sessions and other group activities, with one-to-one support where necessary to maintain S’s focus.
32. In a letter dated 6 February 2026, Hollie Lennon, a SEN Case Manager with Leicestershire SEND, confirmed that S had been offered a place at an enhanced provision unit attached to a mainstream school chosen by his parents. However, the family declined that placement because they wished him to remain at his existing school, where he was familiar with the environment, staff, routines and support arrangements already in place.
33. A letter from S’s GP dated 1 April 2026 records that no underlying medical cause had been identified for episodes of daytime wetting that S had recently begun experiencing. The GP noted that S had started school in September 2025 and had initially adjusted well, with only minor difficulties, but that there had subsequently been some reluctance to attend school and distress associated with school attendance. The GP invited the parents to provide information regarding any changes, challenges or observations that might assist in supporting him.
34. In a joint witness statement dated 7 May 2026, the appellant and his partner explain that S’s sleep, which had always been poor, had deteriorated significantly. They state that he now resists attending school in the mornings and has begun to experience daytime wetting when dysregulated, leading his mother to believe that he is regressing rather than progressing developmentally. They also describe a sensory aversion to touch, particularly around his head, which resulted in S not having a haircut for approximately two years while the appellant was in prison. Since the appellant’s release, however, S has been able to tolerate weekly haircuts administered by his father. The statement further records that morning routines and school drop-offs have become easier because the appellant is now able to take S to school, although S remains highly dependent on routines. By way of example, the parents note that he refuses to wear his PE kit and insists on attending PE lessons in his normal uniform.
35. Their evidence is also that, now the appellant is out of prison, they have reconsidered and accepted the offer to send S to an enhanced provision unit attached to a mainstream school.
36. In paragraph 37 of the refusal decision dated 29 August 2024, the respondent referred to material contained within the Country Policy and Information Note, Sri Lanka: Medical Treatment and Healthcare (July 2020). That material was said to demonstrate the availability in Sri Lanka of services for children with developmental needs, including speech and language therapy and occupational therapy at the Lady Ridgeway Hospital in Colombo and the Sirimavo Bandaranaike Children’s Hospital in Peradeniya, together with a specialist centre for children affected by autism in Colombo. The respondent’s position is therefore that the family could relocate to Sri Lanka and that S’s developmental and educational needs could continue to be met there.
37. The appellant relies on a country report dated 9 February 2026 written by Dr Gilberto Algar-Faria supplemented by an addendum report dated 8 July 2026. Dr Algar-Faria describes himself as a consultant and country of origin information expert with expertise of human rights, conflict prevention and peacebuilding, including the post-war situation in Sri Lanka. Mr Pugh did not seek to call into question Dr Algar-Faria’s expertise.
38. Dr Algar-Faria’s opinion is that S, given his special educational needs, would face significant difficulties in accessing suitable education in Sri Lanka. He notes that although Sri Lanka has some special education provision within the state system, including special education units and a small number of specialist schools, eligibility for free state education is restricted to Sri Lankan citizens. On his assessment, the appellant’s children are not Sri Lankan citizens and cannot become such (because Sri Lanka does not permit people to hold more than two nationalities), with the consequence that they would not be entitled to free or subsidised state education. He further states that specialist provision of the type S requires is predominantly available through privately run institutions and international schools at considerable cost. In his view, paid places for non-Sri Lankan children are generally available only in international schools, and if the Tribunal accepts that S is not a Sri Lankan citizen, then the state-run specialist schools referred to in his earlier report would not be available to him. Dr Algar-Faria therefore concludes that the family would face substantial obstacles in securing and affording appropriate educational provision for S in Sri Lanka, particularly against the background of the country’s continuing economic difficulties.
39. The question of whether S would be able to access specialist educational support in Sri Lanka therefore depends on two matters: first, whether he would be entitled to access state-funded provision; and secondly, if he would not, whether his parents could realistically afford private education capable of meeting his needs.
40. Dr Algar-Faria’s evidence is that private school fees in Sri Lanka range from approximately Rs. 200,000 to Rs. 2 million per annum (£448 to £4,477), whilst international schools charge average annual fees of around Rs. 1.3 million (£2,923), with some schools charging in excess of Rs. 10.7 million (£24,029) per year. In oral evidence, the appellant stated that he had undertaken his own research into specialist educational provision. He referred to one institution, which he believed to be the Overseas International College, where fees were approximately £14,000 per year. He also referred to another school, Tree House, which required a deposit of approximately US$25,000, annual fees of between US$12,000 and US$14,000, and had a waiting list of two years. The appellant further stated that, since his release from prison, he had secured employment in the United Kingdom as a business development manager for a manufacturing company. In cross-examination, he estimated that the average monthly wage in Sri Lanka was between £90 and £150. When asked what a business development manager might earn there, he suggested a salary equivalent to between £200 and £400 per month. He also maintained that family members in the United Kingdom would be unable to contribute towards school fees.
41. The appellant also confirmed in oral evidence that his partner owns the family home. When asked by Mr Pugh about the equity in the property, the appellant estimated it to be between £20,000 and £30,000. In re-examination, however, he explained that there were substantial outstanding liabilities, including approximately £7,200 owed to EDF and a further debt of around £5,000 owed by his partner to her mother. He estimated that, after repayment of all debts and sale-related costs, the family would be left with less than £10,000.
42. When Ms Pathmanathan was asked by Mr Pugh how much equity she would retain if the house were sold, she said that she did not know. In closing submissions, Mr Pugh submitted that it was surprising that she could not provide such an estimate. I accept that observation. However, Mr Pugh did not challenge the appellant’s evidence regarding the likely net proceeds of any sale, nor did he cross-examine either witness concerning the existence or extent of the debts relied upon. When I drew this to his attention, Mr Pugh explained that he did not generally cross-examine witnesses on matters unsupported by documentary evidence and noted that no financial documentation had been produced by the family. He further relied upon Ras Al Khaimah Investment Authority v Azima [2021] EWCA Civ 349, particularly at [85]-[97], in support of the proposition that there is no obligation to put every disputed matter in cross-examination where a witness knows it to be in issue. The difficulty with that submission, however, is that neither the respondent’s decision nor the subsequent review identified the family’s equity position as a matter in dispute. In those circumstances, I accept, at its highest, the appellant’s evidence that the family would have approximately £10,000 available following the sale of the property and the discharge of outstanding debts.
43. Even assuming that both the appellant and Ms Pathmanathan were able to secure employment in Sri Lanka, and that the appellant could earn as much as £400 per month, I am satisfied on the balance of probabilities that it would be extremely difficult for the family to fund private education for two children whilst simultaneously meeting ordinary living expenses, including accommodation, food, utilities and transport. In my judgment, the capital potentially available from the sale of the family home would provide only short-term assistance and would not materially alter that assessment.
44. The next question is whether the children could access state education. As already noted, it is common ground that both children hold British and German nationality but are not Sri Lankan citizens. It is also not disputed that access to free state education is contingent upon Sri Lankan citizenship. Dr Algar-Faria’s evidence is that non-Sri Lankan children are not entitled to free or subsidised state education and that state-run specialist provision would therefore not be available to S unless he became a Sri Lankan citizen.
45. The appellant contends that his children are not entitled to Sri Lankan citizenship. He relies upon s.5(2) of the Ceylon Citizenship Act 1948 (“the 1948 Act”), which provides:
“5. Citizenship by descent in the case of persons born or after the appointed date

(1) […]

(2) Subject to the other provisions of this Part, a person born outside Ceylon on or after the appointed date shall have the status of a citizen of Ceylon by descent if at the time of his birth his father is a citizen of Ceylon and if, within one year from the date of birth, or within such further period as the Minister may for good cause allow, the birth is registered in the prescribed manner –

(A) at the oﬃce of a consular oﬃcer of Ceylon in the country of birth, or

(B) at the oﬃce of the Minister in Ceylon.
46. The appellant's case is that he has never applied to register the births of his children within one year in accordance with s.5(2).
47. The appellant also relies on s.20 of the 1948 Act, which concerns restrictions on dual citizenship of persons who are citizens by descent. Of particular relevance is subsection (2):
“(2) Where a person is a citizen of Ceylon by descent and that person, by operation of law, is at the time if his birth or becomes thereafter, also a citizen of any other country, that person shall –

(A) on the 31st day of December, 1952, or

(B) on the day immediately succeeding the date of the expiration of a period of twelve months from the date on which he so becomes a citizen of that other country, or

(C) on the day on which he attains the age of twenty-two years, whichever day is in the case the latest, cease to be a citizen of Ceylon, unless before that day he renounces citizenship of that other country in accordance with the law therein in force in that behalf and notiﬁes such renunciation to a prescribed oﬃcer.”
48. However, s.19(3) of the 1948 Act, which concerns renunciation of citizenship and special provisions relating to dual citizenship, also provides:
“(3) Any citizen of Sri Lanka may, at any time prior to his ceasing, under … section 20…, to be a citizen of Sri Lanka, make application to the Minister for a declaration that such person retains the status of a citizen of Sri Lanka from and after a date to be speciﬁed in such declaration, notwithstanding the fact that he is, and continues to be from and after that date a citizen of any other country; and the Minister may make the declaration for which application is made, if he is satisﬁed that the making of such declaration, would, in all the circumstances of the case, be of beneﬁt to Sri Lanka.”
49. My reading of these provisions of the 1948 Act is that the appellant may still apply for the late registration of his children as Sri Lankan citizens by descent pursuant to s.5(2). If such applications were granted, the effect of s.20(2) would appear to be that the children could retain Sri Lankan citizenship, together with at least one other nationality, until they attained the age of 22, at which point they would be required to elect which citizenship they wished to retain. Furthermore, s.19 provides a mechanism by which a person who would otherwise lose Sri Lankan citizenship by reason of holding another nationality may apply to retain that status notwithstanding their possession of foreign citizenship. On the face of the legislation, therefore, there appears to be a potential route by which the children could continue to enjoy Sri Lankan citizenship up to, and perhaps beyond, the age of 22, subject to the exercise of the relevant ministerial discretion.
50. However, Dr Algar-Faria expresses the opinion that, because the appellant’s children are already citizens of both the United Kingdom and Germany, and because Sri Lanka does not permit multiple citizenships, they are not eligible to become Sri Lankan citizens. I have some reservations about the weight that can be properly attached to that opinion. Dr Algar-Faria is an expert on Sri Lankan society, politics and country conditions rather than on Sri Lankan nationality law. His conclusion appears to derive, at least in part, from information obtained from a Sri Lankan High Commission in Canberra website which states:
“Special Note – Individuals holding citizenship in two or more countries are not eligible to apply for dual citizenship with Sri Lanka. Dual citizenship is only available to those who hold citizenship or permanent residency in a single other country.”
51. However, the appellant's own addendum bundle contains a screenshot of a page from the website of the Sri Lankan High Commission in the United Kingdom which contains no equivalent statement. Nor is there any further evidence before me, whether in the form of legislation, case law, official policy or authoritative governmental guidance, establishing that a child who already possesses more than one foreign nationality is legally precluded from acquiring Sri Lankan citizenship by descent. Equally, there is no evidence that the Sri Lankan authorities would refuse to register the children as citizens by descent in circumstances where s.20 expressly contemplates the continued possession of Sri Lankan citizenship until the age of 22, at which point a choice as to nationality must be made or an application submitted under s.19(3). These are matters that would more appropriately have been addressed by expert evidence from a suitably qualified specialist in Sri Lankan nationality law. Nevertheless, giving the expression "dual citizenship" its ordinary meaning, I proceed on the basis most favourable to the appellant, namely that Sri Lankan law does not permit the simultaneous holding of Sri Lankan citizenship and more than one other foreign nationality. For the purposes of this appeal, I therefore proceed on the assumption that the children would be unable to retain British, German and Sri Lankan citizenship simultaneously, while recognising that the evidence before me does not satisfactorily resolve whether they could nonetheless obtain Sri Lankan citizenship by descent and retain all three nationalities at least until the age of 22.
52. The respondent’s position is that the children could obtain Sri Lankan citizenship by first renouncing their German nationality. Reliance is placed upon s.26 of the German Nationality Act, which permits German citizens who hold multiple nationalities to renounce their German citizenship by written declaration.
53. Section 26(2) provides that such renunciation is subject to approval by the competent German authority and identifies circumstances in which approval must be withheld. None of those circumstances appears applicable on the facts of this case.
54. Section 26(4) further provides:
“…Renunciation by a minor German can only be declared by his or her legal representative and only with the approval of the German family court. If the minor has legal capacity as defined in section 34 sentence 1, the declaration of renunciation requires his or her consent.”
55. Section 34 of the same Act provides that a person acquires the relevant legal capacity at the age of 16. Accordingly, because S and P are both below that age, any application for renunciation would need to be made on their behalf by their parents and would require judicial approval.
56. The respondent therefore submits that the children’s parents could apply for the renunciation of the children’s German citizenship and thereafter seek registration of the children as Sri Lankan citizens by descent pursuant to s.5(2) of the 1948 Act.
57. Mr Bishop submitted in response that there is no guarantee either that the German authorities would approve such an application or that the Sri Lankan Minister would exercise the discretion afforded by s.5(2) to permit late registration. I accept that those outcomes cannot be guaranteed. Equally, however, I am unable to speculate as to how either authority would exercise its powers. Had the appellant wished to establish that approval was unlikely to be granted by either the German or Sri Lankan authorities, evidence addressing those matters ought to have been produced. The burden rests on the appellant to establish, on the balance of probabilities, that Sri Lankan citizenship would not be available to the children. Whilst the appellant may be correct that the issue is not free from doubt, I am not satisfied on the evidence before me that he has discharged that burden. In the absence of such evidence, I am able to conclude only that mechanisms exist by which the children could renounce their German citizenship and seek late registration as Sri Lankan citizens by descent. On the evidence before me, I am not satisfied that either application is, on balance, likely to fail.
58. Mr Bishop further submitted that, even if the children could in principle renounce their German citizenship, it would be unduly harsh to expect them to do so. He argued that such a course would not only deprive them of the rights attaching to German nationality, but also of the rights and opportunities associated with citizenship of a Member State of the European Union. At present, however, the children derive no practical benefit from either their German or EU citizenship. Germany, like Sri Lanka, is a country in which they have never lived. In her oral evidence, their mother suggested that, in the future, they might wish to study, work or reside elsewhere within the EU. I accept that German citizenship carries potential advantages that the children may wish to take advantage of when they are older. Equally, however, Sri Lankan citizenship would itself confer significant benefits, including access to free state education and, in S’s case, eligibility for state-funded educational support and services directed towards his developmental needs.
59. I remind myself that the intrinsic importance of citizenship should not be understated: see ZH (Tanzania) v Secretary of State for the Home Department [2011] UKSC 4 at [32], where Lady Hale emphasised the significance of citizenship as an aspect of a child’s identity and belonging. Nevertheless, while the children remain minors, it is ultimately for their parents to determine which of the competing advantages associated with their respective nationalities are of greater importance. As matters presently stand, the children derive no tangible benefit from their German or EU citizenship and any future decision to exercise rights arising from that status, whether for education, employment or residence within the EU, remains speculative. It is also material that, even if the children were to renounce their German citizenship in order to acquire Sri Lankan citizenship, they would retain their British citizenship. They would therefore continue to enjoy the right to enter and reside in the United Kingdom and would not be rendered stateless or deprived of the advantages associated with citizenship of a developed democratic state. I therefore accept that requiring the children to relinquish their German citizenship would be harsh, particularly given that they bear no responsibility for their father’s offending. However, I am not satisfied that the consequences of doing so would be so severe as to transcend the ordinary level of harshness inherent in deportation cases and attain the elevated threshold of undue harshness. In particular, I do not consider that the loss of a citizenship which presently confers no practical benefit, together with the possibility of future opportunities that may or may not be pursued, especially where British citizenship would be retained, would result in consequences going beyond those described in MK as “severe” or “bleak” so as to satisfy that demanding statutory test.
60. The third limb of Mr Bishop’s argument was that, even if S were able to access educational and developmental support in Sri Lanka, the level of provision available there would fall materially short of that which he currently receives in the United Kingdom. Further, he submitted that, given S’s well-documented difficulties with change and transitions, the disruption caused by relocation to Sri Lanka would have such a detrimental impact upon his development that the consequences would meet the unduly harsh threshold.
61. I accept that it is more likely than not that the level of specialist educational provision available to S in Sri Lanka would not be equivalent to that which he currently receives in the United Kingdom. However, I am not satisfied, on the evidence before me, that the support available in Sri Lanka would be inadequate to meet his needs. Nor am I satisfied that, if he were to acquire Sri Lankan citizenship, he would be unable to access the relevant services. In his addendum report, Dr Algar-Faria notes that, as of 2018, there were 48,784 children with special educational needs attending mainstream schools in Sri Lanka. He further records that, as of 2019, there were 704 special educational units operating within national and provincial schools, serving 7,513 pupils with special educational needs, in addition to 26 assisted special schools operated by non-governmental organisations and three specialist schools run by the Ministry of Education, collectively educating a further 2,467 students. While that evidence does not establish parity with the system operating in the United Kingdom, it does demonstrate the existence of a significant level of educational provision for children with special educational needs across Sri Lanka. I therefore do not accept that the evidence establishes that S would be left without meaningful support if relocated there.
62. I also accept that S experiences significant difficulties with transitions and changes in routine. However, it would be unrealistic to proceed on the basis that S can reasonably be expected to go through childhood without encountering significant transitions. Equally, as Mr Pugh submitted, the evidence does not demonstrate that any distress arising from such transitions is necessarily permanent or incapable of mitigation or resolution. Indeed, the evidence of Ms Pathmanathan is that the family is actively seeking to move S to a different school in the United Kingdom. Such a move would itself represent a major transition, involving separation from his current environment, routines, staff and support network. Whilst I readily accept that relocation to Sri Lanka would constitute a much more substantial change, it is important to recognise that S would continue to have the support of both parents during that process. As I have already explained, I am satisfied that there is a realistic prospect of his obtaining educational and developmental support in Sri Lanka if he acquires Sri Lankan citizenship, which would also help to mitigate the adverse effects of relocation.
63. Moreover, S remains a very young child. Whilst I accept that any relocation is likely initially to cause distress and disruption, I consider it reasonable to conclude that, over time, he would adapt to life in a new country, as many children do. There is insufficient evidence before me to show that any regression which he may experience would be enduring or irreversible. Nor is there sufficient evidence to establish the extent to which his non-verbal presentation would be adversely affected by relocating to a country where English is not the main language. The evidence before me simply does not permit findings of that nature to be made. Taking all matters in the round, I am not satisfied that the upheaval associated with relocation, whether considered alone or in conjunction with the likely differences in educational provision, would result in consequences for S going beyond those that are necessarily involved in deportation and reaching the elevated threshold of undue harshness.
64. Less reliance was placed upon the circumstances of P and I can therefore deal with her position more briefly. There was some evidence from her parents suggesting that she has begun to mirror aspects of S’s behaviour and they have expressed concern that she may in future experience similar developmental difficulties. At the date of the hearing, however, those concerns remain speculative and unsupported by any diagnosis or professional assessment. The evidence also indicates that, since the appellant’s release from prison, he and his partner have been able to devote more time and attention to P, thereby relieving some of the pressures that previously arose from S’s significant needs. There is no reason why that arrangement could not continue were the family to relocate to Sri Lanka together. Furthermore, given her young age, P is likely to be more resilient to the disruption that relocation would inevitably entail and, like her brother, she would continue to benefit from the support and care of both parents as she adjusted to life in Sri Lanka. Her circumstances therefore come nowhere near to meeting the unduly harsh threshold.
The appellant’s partner
65. I accept that Ms Pathmanathan is a German citizen who has never lived in Sri Lanka. However, her parents are originally from Sri Lanka, she entered into a religious marriage with a Sri Lankan national, and it is therefore reasonable to conclude that she has some familiarity with Sri Lankan culture and at least some exposure to the Tamil language, factors which may mitigate the effects of any cultural adjustment on relocation.
66. I also take into account that Ms Pathmanathan has lived in the United Kingdom since she was nine years old. However, as she acknowledges at paragraph 13 of her witness statement dated 17 June 2024, she previously relocated from London to Leicestershire in order to live with the appellant. Whilst she states that it was difficult to leave family and friends behind, that experience demonstrates an ability to adapt to living in a new area. At paragraph 14 of the same statement, she explains that she found it difficult to establish a new social circle in Leicestershire because the demands of caring for the children while the appellant was in prison left her with little time for herself. Although I have sympathy for her position, the witness evidence does not demonstrate that she has developed particularly strong ties to Leicestershire which would be lost if she relocated to Sri Lanka.
67. I accept that relocation would separate Ms Pathmanathan from her family members in the United Kingdom, namely her parents, brother and sister. She explained in oral evidence that her father is recovering from a brain bleed and that her mother acts as his carer. However, those relatives live in London whereas Ms Pathmanathan resides in Leicestershire. There is insufficient evidence before me to establish that the relationships go beyond the normal emotional ties between adult family members such as to constitute family life for the purposes of Article 8 ECHR. Equally, it was not her evidence that those relatives provide any significant childcare support. Whilst her mother has lent her money to enable her to purchase a car, I accept Mr Pugh’s submission that members of the wider family may be able to provide at least some limited financial assistance while the family establishes itself in Sri Lanka.
68. In oral evidence, Ms Pathmanathan stated that she would be unable to work in Sri Lanka because there would be no childcare available for P. However, according to Dr Algar-Faria, children ordinarily commence primary education in Sri Lanka at the age of five. P would therefore be likely to start school around 2028 to 2029. There is insufficient evidence to demonstrate that, provided the appellant secures employment and the family is able to rely upon the proceeds of the sale of Ms Pathmanathan’s property, together with any limited financial assistance that may be available from family members in the United Kingdom, they would be unable to maintain themselves financially until that point. Furthermore, whilst Ms Pathmanathan states that she speaks only limited Tamil, it is reasonable to expect her language skills to improve if she were living in Sri Lanka. It is unclear from the evidence whether she still speaks German, but her fluency in English and her education and work experience in the United Kingdom are factors which may assist her in obtaining employment.
69. In conclusion, I do not find that the evidence demonstrates that Ms Pathmanathan would face consequences going beyond the level of disruption and hardship ordinarily associated with relocation to another country. Whilst I accept that such a move would be difficult for her, the evidence falls short of establishing that the impact upon her would be unduly harsh.
Conclusion on the “Go” scenario
70. For the reasons set out above, and having considered the evidence in the round, I am satisfied that it would not be unduly harsh for the appellant’s partner and children to relocate to Sri Lanka with him. The various difficulties identified, whether arising from S’s developmental needs, relocation, separation from extended family members in the United Kingdom, cultural adjustment, financial uncertainty, or the need to re-establish family life in a different country, do not, either individually or cumulatively, reach the elevated threshold required by the unduly harsh test.
71. The appellant does not therefore meet the requirements of Exception 2.
Very compelling circumstances
72. As the appellant is unable to meet the requirements of Exceptions 1 or 2, he must demonstrate very compelling circumstances in his case over and above them. I remind myself that a failure to satisfy the requirements of Exceptions 1 and/or 2 does not preclude a finding that very compelling circumstances exist, although cases in which that threshold is met will be rare: see NA (Pakistan) v Secretary of State for the Home Department [2016] EWCA Civ 662 at [30]–[33].
73. In considering the test under s.117C(6) of the 2002 Act, I have had regard to the guidance given by the Supreme Court in HA (Iraq) v Secretary of State for the Home Department [2022] UKSC 22, in particular at [51], and to OH (Algeria) v Secretary of State for the Home Department [2019] EWCA Civ 1763 at [63], where Irwin LJ observed that, “[a]s a matter of language and logic”, the very compelling circumstances test sets a “very high bar indeed”.
The seriousness of the offence
74. I have considered the sentencing remarks of HHJ Henry in relation to the index offences. Following a police raid on the appellant’s home in Leicester on 18 November 2019, he was found in possession of heroin with a value of approximately £85 and cannabis with a street value of around £1,600. He was subsequently released under investigation. Whilst still under investigation, he was arrested again in Bournemouth on 7 October 2021. On that occasion, he was found in possession of cocaine and heroin, together with drug-dealing paraphernalia and cash amounting to approximately £1,500. The drugs seized had an estimated street value of £9,690. HHJ Henry was satisfied that the appellant was involved in street-level drug dealing. Although the judge accepted that the appellant had become involved in the offending as a result of his own drug debts, he nevertheless concluded that the appellant’s role was significant.
75. The appellant was sentenced to 44 months’ imprisonment on each of the two counts of possession of a Class A controlled drug with intent to supply arising from the Bournemouth offences, those sentences to run concurrently. In relation to the Leicester offences, he received a sentence of 26 months’ imprisonment for possession of a Class A controlled drug with intent to supply, together with a concurrent sentence of eight months’ imprisonment for possession of cannabis with intent to supply. The sentences imposed for the Bournemouth offences and the Leicester offences were ordered to run consecutively, resulting in a total sentence of 70 months’ imprisonment.
76. In those circumstances, I am satisfied that the appellant was convicted of serious offences involving the possession of Class A drugs with intent to supply. Such offending causes significant harm both to individual users and to the wider community and attracts substantial weight in the public interest in deportation.
The time elapsed since the offences were committed
77. The last of the index offences were committed on 7 October 2021. While that was more than four and half years ago, that is not an especially long time, especially when one considers that the appellant has only recently been released from prison, on 31 March 2026.
Rehabilitation
78. The appellant contends that he is no longer dependent on drugs and that he has made sustained efforts towards rehabilitation. In his witness statement dated 9 December 2024, he states that, whilst in custody, he completed courses relating to self-awareness, thought processes and decision-making in order to reduce his risk of reoffending. He also explains that he worked as a peer mentor and neurodiversity support ally in prison and completed qualifications in leadership and management. Since his release from custody on 31 March 2026, he has secured employment as a business development manager with a supplement manufacturer.
79. I also take into account the letter dated 3 July 2026 from the appellant's probation practitioner, Ian Carty. Mr Carty states that the appellant is currently assessed as presenting a medium risk of harm to the public, arising from the nature of the index offences involving the supply of Class A drugs and his previous conviction for driving whilst over the specified drug limit. Those offences carried the potential to cause serious physical and psychological harm to members of the public. However, Mr Carty assesses the appellant's risk towards known adults and children as low and his likelihood of reoffending within the next two years as low. He further confirms that the appellant completed a CMI Level 3 qualification in Leadership and Management and a Level 3 Award in Education and Training whilst in custody. Mr Carty also notes that the appellant has obtained employment since his release, which is regarded as a protective factor against further offending.
80. Having considered the evidence as a whole, I accept that the appellant has taken positive and proactive steps to distance himself from the criminal behaviour that led to his imprisonment. I am satisfied that he has engaged constructively with rehabilitative opportunities whilst in custody, that he has secured lawful employment following his release, and that he currently presents a low risk of reoffending, albeit with the potential to present a medium risk of harm were he to relapse into criminal conduct.
81. However, I bear in mind the guidance of the Supreme Court in HA (Iraq) v Secretary of State for the Home Department [2022] UKSC 22 at [58], where Lord Hamblen (with whom the others agreed) observed that where “the only evidence of rehabilitation is that no further offences have been committed then, in general, that is likely to be of little or no material weight in the proportionality balance.” The present case goes somewhat further than a mere absence of reoffending, given the appellant's engagement with rehabilitative courses, his work in prison, his abstinence from drugs, and his successful return to employment. Nevertheless, rehabilitation is principally relevant to the assessment of future risk rather than the strength of the public interest in deportation arising from serious offending. Accordingly, whilst I attach some weight to the appellant's rehabilitative efforts, I do not regard those matters as substantially diminishing the strong public interest in his deportation.
The appellant’s family life in the UK
82. I accept that the appellant enjoys a genuine and subsisting family life with his partner and two children. However, for the reasons I have already given, I am not satisfied that it would be unduly harsh to expect the family to relocate with him to Sri Lanka.
83. The appellant also has other family members in the United Kingdom, including his parents, brother, and sister and wider relatives. However, none of those individuals gave evidence before the Tribunal and there is insufficient evidence to establish that the relationships in question go beyond the normal emotional ties ordinarily existing between adult family members. I am therefore not satisfied that those relationships constitute family life for the purposes of Article 8 ECHR. They are more appropriately considered as part of the appellant’s private life in the United Kingdom.
The length of the appellant’s stay in the UK
84. The appellant arrived in the United Kingdom in 2006. It is not suggested by the respondent that any part of his residence has been unlawful. He has therefore lived lawfully in the United Kingdom for approximately 20 years, compared with the 13 years he spent living in Sri Lanka before his arrival. That is a lengthy period of lawful residence and I attach significant weight to it when assessing the proportionality of his deportation.
The appellant’s ties to Sri Lanka
85. I accept that the appellant has not lived in Sri Lanka for some 20 years. Nevertheless, he spent the first 13 years of his life there and continues to speak Tamil. He will also have retained some familiarity with Sri Lankan culture and customs through his family background. Furthermore, he returned to Sri Lanka in 2019 and, according to paragraph 18 of his witness statement dated 9 December 2024, spent several months travelling around the country, primarily as a tourist. Whilst I accept his unchallenged evidence that he no longer has contact with his father's side of the family who remain in Sri Lanka, he does maintain contact with his maternal aunt who lives there. In addition, I bear in mind the preserved findings of the First-tier Tribunal that there would not be very significant obstacles to the appellant's reintegration into Sri Lanka. Taken together, these matters indicate that, notwithstanding the passage of time since he last lived there, the appellant retains ties to Sri Lanka and would not be returning as a stranger to the country.
Are there any very compelling circumstances?
86. Having undertaken a holistic assessment of the evidence, I am not satisfied that there are very compelling circumstances in the appellant’s case.
87. The starting point is the strong public interest in deportation, given the seriousness of the index offences.
88. I accept that the appellant speaks English and has obtained a job. He is therefore capable of being self-sufficient. However, these are neutral factors in the balance.
89. On the appellant’s side of the scale, I have taken into account the following matters:
a. The appellant has lawfully lived in the United Kingdom for approximately 20 years. During that period, he completed his secondary education here and subsequently held a variety of jobs, including work in retail, private tutoring, hospitality, plastering and, most recently, as a business development manager. He has integrated into society. I also accept that he has established a private life in the United Kingdom through his relationships with friends and extended family members. Deportation would inevitably diminish those relationships and would largely confine contact to modern methods of communication and occasional visits. I attach significant weight to these matters.

b. For the reasons already given, I accept that the appellant has engaged positively with rehabilitation, has abstained from drug use, successfully completed courses whilst in custody, and has secured employment upon release. However, bearing in mind the guidance in HA (Iraq), I attach some, but not substantial, weight to these matters.

c. Whilst the appellant has not lived permanently in Sri Lanka since 2006, he nevertheless spent the first 13 years of his life there, speaks Tamil, and retains a degree of familiarity with the country and its culture. He also returned to Sri Lanka in 2019, where he spent several months travelling around the country. He therefore has some knowledge of life in Sri Lanka. Furthermore, there is a preserved finding that there would not be very significant obstacles to his reintegration. I have considered Dr Algar-Faria’s evidence regarding the economic difficulties currently facing Sri Lanka. Whilst he opines that Sri Lanka continues to experience an ongoing economic crisis, much of his analysis at paragraphs 5.3.2 to 5.3.4 focuses on the difficulties faced by the Sri Lankan authorities in resettling those displaced by a cyclone and the wider increase in poverty levels. The appellant and his family would not, however, be returning as displaced persons, and it was not suggested before me that either the appellant or Ms Pathmanathan would be incapable of obtaining employment in Sri Lanka. In addition, they would have access to the proceeds of any sale of Ms Pathmanathan’s property and could reasonably expect at least some limited financial assistance from family members in the United Kingdom whilst they became established there. I accept that the family’s financial circumstances in the United Kingdom are relatively modest and that they have relied upon benefits and other forms of assistance. However, I am not satisfied that this demonstrates an inability to establish themselves in Sri Lanka, particularly given the anticipated equity available from the family home and the prospect of one, and potentially both, adults obtaining employment. Although private specialist education may be difficult to afford, I have found that there is a realistic prospect of the children accessing state provision if Sri Lankan citizenship is obtained for them. Taking these matters together, I attach only limited weight to this factor.

d. If the appellant's partner and children were to relocate to Sri Lanka with him, his deportation would not materially interfere with their family life. But, in the alternative, if there would be an interference with family life, I rely upon my findings in relation to Exception 2. For the reasons already given, I am not satisfied that the consequences for the appellant's partner or children would be unduly harsh.

e. With regards to the children:

i. I find that the best interests of both children lie in remaining with both of their parents. Those interests can be preserved if the family relocates together to Sri Lanka. In relation to S, I also accept that it is in his best interests to continue to benefit from the educational and support provisions currently available to him in the United Kingdom. However, the best interests of a child, whilst a primary consideration, are not the paramount consideration in the Article 8 balancing exercise: see ZH (Tanzania) at [25]. Those interests must therefore be weighed alongside all other relevant considerations, including my findings regarding the availability of educational and SEN provision in Sri Lanka.

ii. In assessing proportionality I also take into account the educational evidence concerning S, including the EHCP, the proposed specialist school placement and the evidence regarding his need for 1:1 support. For the reasons already given when considering Exception 2, I do not find that this evidence is sufficient, whether viewed individually or cumulatively, to outweigh the very strong public interest in deportation.

iii. Furthermore, I have considered the evidence that P has begun to mirror aspects of her brother's behaviour and would also be affected by relocation. However, the evidence concerning her difficulties is significantly less developed than the evidence relating to S, and I am not satisfied that relocation would have consequences for her which materially strengthen the appellant's case beyond those already considered in relation to the family as a whole.

iv. I have also taken into account the potential loss of German citizenship if that were required in order for the children to acquire Sri Lankan nationality. For the reasons already given, I do not consider that factor, whether considered alone or cumulatively with the other matters relied upon, is capable of amounting to a very compelling circumstance.

f. I have also taken into account the impact of relocation upon Ms Pathmanathan, including her long residence in the United Kingdom, her separation from relatives here, and the challenges she would face adapting to life in Sri Lanka. For the reasons already given in respect of Exception 2, those consequences would be difficult but would not be of such severity as materially to diminish the public interest in deportation.
90. Drawing all of these matters together, whether considered individually or cumulatively, they fall short of meeting the elevated threshold of very compelling circumstances. Whilst I accept that the appellant's deportation would have significant consequences for him and his family, those consequences are not of such an exceptional nature as to outweigh the very strong public interest in the deportation of a foreign criminal sentenced to 70 months' imprisonment for serious Class A drug offences.
91. I am therefore satisfied that there are no very compelling circumstances over and above those described in Exceptions 1 and 2. The public interest in the appellant's deportation consequently prevails.
Notice of Decision
The human rights appeal is dismissed

M R Hoffman

Judge of the Upper Tribunal
Immigration and Asylum Chamber

29th July 2026

Annex: The error of law decision

IN THE UPPER TRIBUNAL
IMMIGRATION AND ASYLUM CHAMBER Case No: UI-2025-003183
First-tier Tribunal No: HU/01650/2024

THE IMMIGRATION ACTS

Decision & Reasons Issued:

…………………………………

Before

UPPER TRIBUNAL JUDGE HOFFMAN

Between

SECRETARY OF STATE FOR THE HOME DEPARTMENT
Appellant
and

UMA PRITHEAV RAJAN
(NO ANONYMITY ORDER MADE)
Respondent

Representation:
For the Appellant: Miss A Ahmed, Senior Home Office Presenting Officer
For the Respondent: Mr C Timson of Counsel, instructed by Latitude Law

Heard at Field House on 12 November 2025

DECISION AND REASONS

1. For continuity, I will continue to refer to the parties as they were before the First-tier Tribunal, although it is the Secretary of State who is the appellant in the appeal before the Upper Tribunal. Therefore, Mr Rajan will be referred to as the appellant and the Secretary of State as the respondent.
2. The respondent appeals with permission against the decision of First-tier Tribunal Judge Robinson (“the judge”) promulgated on 3 April 2025. In that decision, the judge allowed the appellant’s appeal against the respondent’s decision dated 29 August 2024 to refuse his human rights claim and to confirm his deportation from the UK.
Anonymity
3. The First-tier Tribunal made an order for anonymity. However, the respondent made an application to have that order set aside on the basis that there was no good reason to protect the appellant’s identity. Miss Ahmed relied upon the judgment in Gadinala v Secretary of State for the Home Department [2024] EWCA Civ 1410 at [7] to [13]. She argued that the default position is that hearings should take place in public with the parties named and that protecting family members from embarrassment is not a cogent reason to depart from that default position. She argued that the reason given by the judge for granting the appellant anonymity – that children were involved – was not a sufficient reason. Miss Ahmed submitted that there was no legal reason to grant anonymity on that basis and the Upper Tribunal Guidance Note 2022 No 2: Anonymity Orders and Hearings in Private was clear that anonymity should not be granted merely because the appellant “has engaged in conduct that is considered socially embarrassing to reveal” (para 24) and that having “committed a criminal offence will not justify making an anonymity order, even if it is known that such a person has children who may be more readily identified if the details of the person are known” (para 25).
4. Mr Timson argued that anonymity was necessary to protect the identity of the appellant’s children, one of whom suffers from developmental delays, who might suffer as a consequence of people in their community learning about their father’s predicament.
5. Having considered the arguments made by each party, I have decided to set aside the anonymity order. There is a strong public interest in open justice, not least in cases involving the deportation of foreign criminals. While Mr Timson argued that the appellant’s children could be bullied if it became known in their community that their father was facing deportation, the fact remains that the appellant was not anonymised during his criminal trial, which is a matter of public record, and it likely that people in the appellant’s local community are already aware that he is currently serving a prison sentence. Furthermore, the children are both very young and, in my view, the risk of them being bullied by their peers is low. There is no need for me to name the appellant’s partner or her children in this decision and I am satisfied that the evidence before me is insufficient to demonstrate that they would likely suffer any detrimental consequences were the anonymity order lifted.
Background
6. The appellant is a citizen of Sri Lanka. He claims to have arrived in the UK in 2006 aged 13. On 11 September 2008, he was granted indefinite leave to remain.
7. In August 2020 the appellant met his partner, who is a German citizen. They have two children together, S and P, who hold British citizenship.
8. On 11 January 2024, the appellant was convicted of drugs offences and sentenced to consecutive periods of imprisonment totalling 70 months. The longest individual sentence was 44 months. This resulted in the respondent serving a Stage 1 deportation decision letter on the appellant on 1 February 2024. In response, the appellant made human rights representations on 11 and 12 April 2024 and 1 August 2024. These were considered and rejected by the respondent in her Stage 2 deportation decision dated 29 August 2024. A deportation order dated 28 August 2024 was also made against him.
The decision of the First-tier Tribunal
9. The appellant exercised his right of appeal to the First-tier Tribunal. He argued that his deportation would breach his right to a family and private life under Article 8 ECHR. In her decision dated 3 April 2025, the judge found that the appellant did not meet the exception to deportation on private life grounds under s.117C(4) of the Nationality, Immigration and Asylum Act 2002 (“the 2002 Act”) but that he did meet the family life exception under s.117C(5). The judge decided it would be unduly harsh for the appellant’s partner and their two children, one of whom, S, has development issues, to remain in the UK without the appellant (“the Stay scenario”) or relocate with him to Sri Lanka (“the Go scenario”). His appeal was therefore allowed.
The respondent’s appeal to the Upper Tribunal
10. The respondent applied to the First-tier Tribunal for permission to appeal on two grounds:
a. The judge made a material misdirection of law by failing to consider whether there were any very compelling circumstances to outweigh the public interest in the appellant’s deportation under s.117C of the 2002 Act.

b. The judge failed to provide adequate reasons for finding that the undue harshness test was met for the purposes of Exception 2 under s.117C(5) of the 2002 Act.
11. In a decision dated 4 July 2025, First-tier Tribunal Judge Froom granted the respondent permission to appeal. However, while the reasons section of Judge Froom’s decision said that he was only granting permission to argue Ground 2, the operative part of the decision did not restrict the grant of permission.
The legal framework
12. Section 117C of the 2002 Act governs the deportation of foreign criminals and sets out the public interest considerations. The general principle is that the deportation of foreign criminals is in the public interest (s.117C(1)) and where a person has been sentenced to less than four years’ imprisonment, the public interest requires deportation unless one of the statutory exceptions applies (s.117C(3)).
13. Where a person has been sentenced to at least four years’ imprisonment, deportation is required unless there are very compelling circumstances over and above those described in Exceptions 1 and 2 (s.117C(6)). Exception 1, which relates to private life, is set out under s.117C(4). It applies where the person has been lawfully resident in the UK for most of their life, is socially and culturally integrated, and there would be very significant obstacles to integration in the country of return. Exception 2, which relates to family life, is set out under s.117C(5). It applies where the person has a genuine and subsisting relationship with a qualifying partner or child, and the effect of deportation on that partner or child would be unduly harsh.
The hearing
14. I had before me the 737-page hearing bundle; the appellant’s rule 24 response; the respondent’s skeleton argument; and Guidance Note 2022 No 2.
15. At the outset of the hearing, I dealt with three preliminary issues. One was the respondent’s application to set aside the anonymity order, which I have already addressed above.
16. The second issue was the respondent’s application, made in Miss Ahmed’s skeleton argument dated 11 November 2025, to amend Ground 2 to rely on an additional point: that at [44], the judge erred by factoring in the appellant’s criminality when considering the undue harshness test. The respondent’s application was opposed by the appellant. Rather than being a new facet of Ground 2, the point on which Miss Ahmed sought to rely was, in effect, a new ground of appeal. In accordance with rule 33 of the Tribunal Procedure (First-tier Tribunal) (Immigration and Asylum Chamber) Rules 2014, the respondent had until 17 April 2025 to appeal against the judge’s decision. The application to rely upon the new ground was therefore made almost seven months out-of-time. That delay is both serious and significant. Furthermore, as Miss Ahmed frankly acknowledged, there was no good reason for the delay. Having considered all of the circumstances of the case in the round, including the need to ensure procedural rigour and compliance with the Procedure Rules, I refused to extend time.
17. The third issue was whether or not the respondent was permitted to argue Ground 1. Miss Ahmed relied on the case of Safi and others (permission to appeal decisions) [2018] UKUT 00388 (IAC) to argue that because Judge Froom had not restricted the grant of permission in the operative part of his decision, the respondent was not debarred from arguing Ground 1 before the Upper Tribunal. I accepted that Miss Ahmed was correct on this point although, as I discuss in more detail below, it was still unclear on what basis Miss Ahmed sought to pursue her argument given Judge Froom’s observation that Ground 1 is misconceived.
Findings – Error of Law
Ground 1: Misdirection of law by failing to consider very compelling circumstances
18. While I accepted Miss Ahmed’s argument that the respondent was not prevented from arguing Ground 1, I agree with Judge Froom that the argument contained within it is misconceived. The respondent criticises the judge for not considering whether there were any very compelling circumstances to the appellants’ case for the purposes of s.117C(6) of the 2002 Act. However, although the aggregate sentence was 70 months, the longest single term was 44 months. Section 117C(6) says that an appellant who has been sentenced to a period of imprisonment of four years or more can only exempt themselves from the public interest in deportation if there are very compelling circumstances over and above those described in Exception 1 and Exception 2. But s.117C(6) must be read in accordance with s.117D(4)(b), which says that references to a period of imprisonment of a certain length of time in Part V of the 2002 Act “do not include a person who has been sentenced to a period of imprisonment of that length of time only by virtue of being sentenced to consecutive sentences amounting to an aggregate of that length of time”. Accordingly, as the appellant had not been sentenced to a single period of imprisonment of four years or more, the judge was entitled under s.117C(3) to first consider whether he met Exception 1 and/or Exception 2. As the judge found that the appellant met Exception 2, it was unnecessary for her to consider the very compelling circumstances test. She did not therefore err in law in this regard.
19. Ground 1 is not therefore made out.
Ground 2: Failure to give adequate reasons for finding the undue harshness test was met
20. I am mindful that this Tribunal should not interfere with the decision of the First-tier Tribunal merely because it might have reached a different conclusion on the facts. The role of this Tribunal is not to re-try the case but to determine whether the decision under challenge involved the making of a material error of law. As emphasised in Volpi v Volpi [2022] EWCA Civ 464 at [2] to [3], findings of fact are entitled to respect and should only be disturbed where they are vitiated by legal error, such as a failure to apply the correct test, a misdirection, or inadequate reasoning that prevents the losing party from understanding why they lost. It is against that standard that I have assessed the merits of Ground 2.
21. Miss Ahmed submitted that the judge failed to adequately explain how the circumstances of the appellant’s case met the high threshold required to demonstrate that his deportation would have unduly harsh consequences for his partner and children, whether they had to remain in the UK without him or go to Sri Lanka with him. She argued that while the judge refers to the case of HA (Iraq) v Secretary of State for the Home Department [2022] UKSC 22 at [43] there was no indication that she had properly directed herself as to the high threshold that had to be met to prove undue harshness, namely that set out in the case of MK (Section 55: Tribunal Options: Sierra Leone) [2015] INLR 563 at [46] as endorsed by the Supreme Court in KO (Nigeria) v Secretary of State for the Home Department [2018] UKSC 53 and HA (Iraq):
“By way of self-direction, we are mindful 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.”
22. Miss Ahmed said that it was difficult to understand from reading the judge’s decision what the consequences would be for the appellant and his family that were more than uncomfortable, inconvenient, undesirable or merely difficult. At [44], the judge noted that it was accepted by the respondent that the best interests of the appellant’s children were to be cared for by both parents. The judge then finds the appellant is no longer using drugs and is not therefore a risk to his children as a result of his addiction. She takes account that the appellant had been assessed of posing a medium risk to the public and children, but a low risk of reoffending (as Miss Ahmed submitted that was not a factor relevant to the Exception 2 consideration but, for the reasons give above, the respondent does not have permission to pursue that ground). The judge then finds that the appellant’s partner “is currently solely responsible for the children’s emotional and practical day to day care whilst the Appellant is in prison” although he shared parental responsibility before his incarceration and that he had been the primary earner.
23. Miss Ahmed argued that while the judge said the appellant’s partner was facing practical and financial difficulties while the appellant was in prison, she did not point to any examples to indicate that she had been so severely detrimentally impacted that she was unable to work or support the children. The appellant’s partner might have found things more difficult in the appellant’s absence, but there was no reason to believe that she had been unable to cope. Miss Ahmed drew the Tribunal’s attention to paragraphs 12 to 17 of the partner’s witness statement dated 17 June 2024. She submitted that there was nothing in those passages that demonstrated anything that could be described as unduly harsh rather than difficult or undesirable. Miss Ahmed also submitted that the ISW’s report on which the judge relied did not appear to go as far as the judge suggested at [45] and [46]. For example, Miss Ahmed relied upon paragraphs 11.1.1 where the ISW said that P was too young to understand the appellant’s absence and S did not have the cognitive abilities to understand the appellant’s absence; paragraph 11.3.1 where the ISW said that it was difficult to ascertain the impact of the appellant’s absence on the children individually; and paragraph 11.7.2 where the ISW said that she was unable to comment on the long term impact of the appellant’s removal from the children’s lives. Miss Ahmed argued that there was no indication from reading the judge’s reasons that she had taken into account those passages.
24. In response, Mr Timson relied on the Rule 24 response. He said that it was clear that the judge had taken into account HA (Iraq) because she expressly refers to it. He also argued that the respondent did not take issue with the findings of the ISW before the First-tier Tribunal and that it was not right to say that the judge had not considered the whole of the report: at [31] the judge clearly refers to the contents of the report, including what is said at paragraph 11.3.1 and 11.3.4. The judge had, he said, taken into account paragraph 11.6.1 of the ISW’s report, which says that the appellant’s “presence will have a positive impact on the children’s wellbeing and future” while “his absence would severely limit their opportunities in the future.” The judge had therefore weighed the strongest points in the report at [43] onwards and it could not be said that she had made a material error of law. Mr Timson also submitted that it was open to the judge to not be satisfied that the evidence of the support available to S in Sri Lanka would be sufficient for his needs and that it was unclear from reading the decision whether the presenting officer before the First-tier Tribunal had even directed the judge to any evidence.
The Stay scenario
25. With regards to the Stay scenario, at [31] the judge took into account the ISW’s report that the separation caused by the appellant’s imprisonment had had a detrimental impact on his children, and in particular S. At [32], the judge accepted the ISW’s evidence that the disruption caused by the appellant’s imprisonment was “likely to have been a traumatic experience” for S and that this had also affected the appellant’s partner’s “mental health wellbeing” which in turn had had a negative impact on her parenting abilities. At [33], the judge took into account the ISW’s view that the children would “greatly benefit from having both parents to meet their needs” and that the report from S’s nursery said that S’s needs are long term and potentially lifelong. At [34], the judge acknowledged that the letter from the deputy officer in charge of S’s nursery said that while she did not see any noticeable difference in S’s needs following his father’s imprisonment, he was “more tearful and clingier” following prison visits. At [35], the judge accepted the evidence of the appellant’s partner that S became very distressed when he had to leave his father at the end of a prison visit and that S’s behaviour had worsened over recent months. At [36], the judge accepted the evidence before her, including the oral evidence, that the appellant’s imprisonment had resulted in a change to S’s behaviour and that the appellant’s partner struggled to look after the children on her own. It was for the judge to decide how much weight to attach to the evidence before her and her findings in respect of the Go scenario have to be considered in the light of her findings at [31] to [36]. I am therefore satisfied that when [45] and [46] are taken together with [31] to [36], the judge did give adequate reasons for finding that it would be unduly harsh for the appellant’s partner and children to remain in the UK without him.
The Go scenario
26. As for the Go scenario findings, the judge gives three reasons. The first is that the children are both British citizens and have only known life in the UK. But given that they were aged one and three at the date of the hearing, it is difficult to understand from the judge’s reasoning to what extent this was a significant factor in the undue harshness test.
27. The second reason is that the judge found that S would find it traumatic to adapt to life in a new country. However, it is unclear on what basis the judge has reached that finding or what such trauma would entail. Given that S would have the support of both parents, it is unclear why any disruption to S’s life would be more than uncomfortable, inconvenient, undesirable or merely difficult.
28. The third reason relied upon by the judge was the insufficient evidence that the support available in Sri Lanka for S’s developmental needs would be adequate for him. The judge does not say why she finds the evidence to be insufficient. Furthermore, the judge appears to have misunderstood the burden of proof. The burden was not on the respondent to prove that that the support available in Sri Lanka was sufficient for S’s needs; having demonstrated that support was available, it was for the appellant to prove that it was insufficient.
29. While Mr Timson argued that it was unclear whether the respondent had drawn to the judge’s attention any evidence in respect to the support available to children with developmental needs in Sri Lanka, the presenting officer would have relied upon the decision under challenge. At para 37 of that decision, the respondent refers to two sources of information that she says shows that support for children with developmental issues are available in Sri Lanka. The first is the Country Policy Information Note Sri Lanka: Medical treatment and healthcare (July 2020) which, at section 7.31, says that support is provided by the Lady Ridgeway Hospital in Colombo and at the Sirimavo Bandaranaike Children’s Hospital in Peradeniya. The second is a report written by the UN Committee on the Rights of Persons with Disabilities dated 5 December 2019 that says there is a special centre for children affected by autism in Colombo. Hyperlinks were provided to both reports. As Miss Ahmed submitted, it was legitimately open to the judge to use those hyperlinks and consider the reports herself: see AM (fair hearing) Sudan [2015] UKUT 00656 (IAC), headnote (iv). Mr Timson is therefore wrong to suggest the judge was not directed to any evidence. I am satisfied the judge dismisses that evidence as being insufficient without providing any adequate explanation why that is the case and, it would appear, in the mistaken belief that the burden of proof was on the respondent. As Mr Timson acknowledged, the appellant appeared to have provided no evidence to show that the support available in Sri Lanka was insufficient for S’s needs.
30. Ground 2 therefore succeeds.
Conclusion – Error of Law
31. I am satisfied that the errors of law described above were material to the judge’s conclusions under Exception 2. I accordingly set aside the decision of the First-tier Tribunal but preserve the judge’s findings in respect of Exception 1 given that the appellant has not cross-appealed on that point and the Stay scenario under Exception 2.
Disposal
32. The general principle is that cases will be retained by the Upper Tribunal for remaking subject to the exceptions set out at paragraph 7.2 of the Practice Statements of the Immigration and Asylum Chambers of the First-tier Tribunal and the Upper Tribunal. Mr Timson suggested that the appeal should be remitted to the First-tier Tribunal if an error of law was found. Miss Ahmed, however, submitted that given that the findings in respect of Exception 1 could be preserved, the fact-finding required on remaking would not be so extensive that it would be appropriate to remit the appeal.
33. Having considered paragraph 7.2 of the Practice Statements, I am satisfied that (a) neither party was deprived of a fair hearing before the First-tier Tribunal; and (b) because there are many areas of agreement between the parties on key issues (for example, that the appellant has a genuine and subsisting relationship with his partner and children; that S has developmental issues; and the best interests of the children are to be cared for by both parents) the matters to be decided at the remaking hearing are limited to the Go scenario under Exception 2 and possibly very compelling circumstances, further fact-finding is unlikely to be extensive. It is therefore appropriate for the Upper Tribunal to retain the case for remaking.
Notice of Decision
The decision of the First-tier Tribunal involved the making of an error of law and is set aside with the findings made at [39] to [42] and [45] and [46] preserved.
The decision will be remade at a resumed hearing in the Upper Tribunal.
Directions:
1. The remaking of this appeal is to be listed for the first available date with a time estimate of 3 hours.
2. Any updating evidence either party wishes to rely upon must be electronically filed with the Upper Tribunal and served on the other party 21-days prior to the remaking hearing.
3. Mr Rajan is to file and serve a skeleton argument no later than 14 days before the resumed hearing.
4. The Secretary of State is to file and serve a skeleton argument, if so advised, no later than 7 days before the resumed hearing.

M R Hoffman

Judge of the Upper Tribunal
Immigration and Asylum Chamber

14th November 2025