Tribunal decisions

The decision

IN THE UPPER TRIBUNAL
IMMIGRATION AND ASYLUM CHAMBER
Case No: UI-2025-003305

First-tier Tribunal No: HU/02358/2024

THE IMMIGRATION ACTS

Decision & Reasons Issued:

On 6th of November 2025

Before

UPPER TRIBUNAL JUDGE McWILLIAM

Between

BERTHOLD HOLGER
(NO ANONYMITY ORDER MADE)
Appellant
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: Litigant in Person
For the Respondent: Ms N Kerr, Home Office Presenting Officer

Heard at Field House on 21 October 2025

DECISION AND REASONS
Background
1. The Appellant is a national of Germany. His date of birth is 22 October 1974. He was granted permission by Upper Tribunal Judge Ruddick to appeal against the decision of the First-tier Tribunal (Judge O’Keeffe) to dismiss his appeal under Article 8 ECHR against the decision of the Respondent on 21 October 2024 (the appealable decision) to refuse to revoke a deportation order made on 8 August 2024.
2. On 6 September 2023 the Appellant was convicted by the Magistrates’ Court of common assault on his partner. His plea is not known; however, he was sentenced to an immediate custodial sentence of three months and made subject to a retaining order which prohibited him from intimidating, harassing or pestering his former partner or to instruct, encourage or in any way suggest that any other person should do so. The order was to have effect until 6 September 2025. On 2 May 2024 the Appellant was convicted of breaching the restraining order to which he pleaded not guilty. He was given an immediate custodial sentence of 9 months. On the same occasion he was sentenced for an offence of stalking (his former partner) which is an offence under s.1 of the Protection from Stalking Act (NI) 2022.
3. The Respondent’s view was that the Appellant’s offences had caused “serious harm” and therefore he is a foreign criminal and the public interest requires his deportation.
4. The appeal was dismissed. The judge found that the Appellant is a foreign criminal pursuant to s.117D(2) of the Nationality, Immigration and Asylum Act 2002 (“the 2002 Act”). The judge found that he met the requirements of s.117D (2) (a) and (b). In respect of (c) the judge found that he had been convicted of an offence that has caused serious harm (s.117D (c (ii)). The judge found that the Appellant could not meet the requirements of s.117(c)(4) ( Exception 1), s.117 (c ) (5) (Exception 2) or and s.117 (6) of the 2002 Act. The judge found breach of the Appellant’s rights under Article 8 of the ECHR was proportionate.
5. Permission was granted on ground four only. It is arguable that the finding of the judge that the offences committed by the Appellant caused serious harm pursuant to s.117D(2) ( c) (ii) of the 2002 Act, “lacks evidential basis and breaches procedural fairness and proportionality”.
The decision of the FTT
6. The judge said that he had considered the decision of the Upper Tribunal in Wilson (NIAA Part 5A; deportation decisions) [2020] UKUT 000350.
7. The judge noted that the Appellant had unsuccessfully applied to the Magistrates’ Court in Belfast to discharge the restraining order. The Appellant attempted to appeal to the Court of Appeal, however the Court of Appeal said they had no jurisdiction to entertain an appeal against a decision of a Magistrates’ Court.
8. The judge said it was for the Respondent to demonstrate that the offences had caused serious harm to the civil standard. The judge took into account that the Appellant has been sentenced to three separate terms of imprisonment. The judge said that he had not been provided with any sentencing remarks and that he had not seen any victim impact statement. The judge said that he had taken into account serious harm can involve physical, emotional or economic harm and does not need to be limited to an individual. The judge said that the Appellant received immediate custodial sentences for each of the offences which means that the court must have been satisfied that each offence was so serious that only an immediate custodial sentence could be justified.
9. The judge said that the offences are all aggravated by the fact that they involve domestic abuse of the same victim and they involve an escalation in seriousness as demonstrated by the increase in sentences.
10. The judge took into account that on 2 May 2024 when the Appellant was sentenced for breaching the restraining order and the offence of stalking, an application was made by the Chief Constable of the Police Service in Northern Ireland to vary the terms of the restraining order. The judge said that the order was varied to include a requirement that the Appellant not post any photos, images, messages, comments or references about his ex-partner online or on any forum whatsoever and that he has no contact with his ex-partner except through Social Services and/or solicitors regarding child issues only.
11. The judge said as follows:
“Gathering those strands together, I take into account that the appellant has been convicted of three separate offences all involving the same victim and all increasing in gravity. Each one of the offences has been considered so serious that only a custodial sentence could be justified. The appellant breached a restraining order imposed by the court and also pursued a course of conduct between 23rd September 2023 and 31st October 2023 that amounted to stalking. All the offences were committed in a domestic context which is an aggravating feature. The restraining order was varied to include additional requirements and extended by two years. The appellant’s application to discharge the restraining order was refused at a hearing held on 31st January 2025. Taking all those circumstances into account I am satisfied that the offences of breach (sic) of restraining order and stalking are both offences that have caused serious harm. He is therefore a ‘foreign criminal’ as defined in s117D(2)”.
Conclusions
12. I heard submissions from the Appellant and Ms Kerr. I gave both the opportunity to consider the case of Wilson (NIAA Part 5A: deportation decisions) [2020] UKUT 350. Ms Kerr said that the judge applied Wilson. Mr Holgar said that his evidence at the hearings before the Magistrates’ Court was disregarded.
13. I have considered the case of Wilson and the authorities on which the Upper Tribunal relied; LT ( Kosovo) and another v SSHD [2016] EWCA Civ 1246, SC (Zimbabwe) v SSHD [2018] EWCA Civ 929 and R (Yasir Mahmood) and others v SSHD [2020] EWCA Civ 717. I summarise the guidance given in these cases:

1) In general para s. 117D (2) (c) (ii) is not concerned with the most serious kind of harm that comes before the crown court.

2) In the case of a violent offence injury will be caused to the victim.

3) The starting point is the SSHD ‘s view.

4) Often it will be clear from the nature of the offence that harm has been caused.

5) Harm does not include the potential for harm or an intention to harm.

6) The adjective “serious” qualifies the extent of the harm but provides no precise criteria.

7) An evaluative judgement has to be made in the light of the facts and the circumstances.

8) It will be for the tribunal to evaluate the harm on the basis of the evidence that is available and drawing common sense conclusions.

9) Provided that the judge has considered all relevant factors and has not had regard to irrelevant factors and has not reached a perverse decision there will be not error of law.

10) It is expected that the sentencing remarks (if available) and victim impact statement (if one exists) from part of the evidence before the FTT.

11) No proper conclusions can be drawn from the lack of a victim impact statement.

12) The SSHD does not need to adduce evidence from the victim at the hearing before the FTT.

13) Serious harm can involve physical, emotional or economic harm and does not need to be limited to an individual.

14) The fact that a particular type of offence contributes to a serious /widespread problem is not sufficient, there must be some evidence that the actual offence has caused serious harm.

15) The contribution of an offence to a serious or widespread problem is not sufficient; there needs to be some evidence that the offence has caused serious harm (see paragraphs 41 and 66 of R (Mahmood)).

14. In Wilson the panel found that the FTT did not err when concluding that the appellant’s offending had not caused serious harm. The appellant had been caught in possession of a bladed article. However, there was no evidence that he had brandished it. The UT found that the decision of the FTT accorded with [41] and [66] of R (Mahmood).

15. In this case there would not have been any sentencing comments on which to rely as the offences are summary only and dealt with in the Magistrates’ Court. It is not known whether there was a victim impact statement. There was not one before the judge.

16. The factors on which the judge relied are material matters when assessing serious harm. The offence of common assault is one in which it can reasonably be inferred that a victim has at least suffered physical and maybe psychological harm. This offence; however, does not stand alone. The judge viewed the offences as a pattern against one person in the context of domestic violence which disclosed escalation in seriousness. The Appellant’s partner, having been assaulted by him, was granted a restraining order. In granting a restraining the Court must have taken the view that this was necessary to protect her from future harm. The Appellant; however, not only breached that order but committed a further offence of stalking his partner. It is the offences cumulatively against the same victim that the judge found caused serious harm.

17. While we do not know the details of the offences including how the Appellant breached the order or the nature of the stalking, there is nothing to prevent the judge from attaching some weight to the sentences imposed and the fact that they were immediately imposed. While the offences are capable of contributing to a serious or widespread problem, the judge was entitled to conclude that in this case that they caused serious harm to the Appellant’s partner. There is nothing to support that the judge took into account irrelevant factors. The judge made an evaluative judgement and reached a common sense conclusion.

18. The Appellant is in the process of challenging the validity of the convictions in the Admin Court; however, there was no application to adjourn these proceedings. In any event applying Rule 2 of the 2008 Procedure Rules, the overriding objective fairness did not demand an adjournment. The Appellant’s application to the Admin Court had not been determined on the papers at the date of the hearing before me.

19. There is no error of law.
Notice of Decision
The appeal is dismissed.

Joanna McWilliam

Judge of the Upper Tribunal
Immigration and Asylum Chamber

28 October 2025