Tribunal decisions

The decision

IN THE UPPER TRIBUNAL
IMMIGRATION AND ASYLUM CHAMBER
Case No: UI-2025-003651

First-tier Tribunal No: HU/52055/2024
LH/01207/2025

THE IMMIGRATION ACTS

Decision & Reasons Issued:

On 2nd of December 2025

Before

UPPER TRIBUNAL JUDGE BLUNDELL
DEPUTY UPPER TRIBUNAL JUDGE JARVIS

Between

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Appellant
and

DANIEL KAJNOZI
(NO ANONYMITY ORDER MADE)
Respondent

Representation:
For the Appellant: Ms A. Nolan, Senior Home Office Presenting Officer
For the Respondent: Mr T. Wilding, Counsel instructed by Waterstone Legal

Heard at Field House on 17 November 2025

DECISION AND REASONS

Introduction

1. In this appeal, the only issue before the Upper Tribunal is whether the First-tier Tribunal made an error of law when it decided to allow Mr Kajnozi’s appeal against the refusal of his human rights claim. For the reasons which follow, we have concluded that the First-tier Tribunal did not make an error of law in its decision. We are therefore required by the Tribunals, Courts and Enforcement Act 2007 to order that the decision shall stand.

2. The Appellant is the Secretary of State for the Home Department but in order to maintain consistency with the decision of the First-tier Tribunal we shall refer to the parties as they were in that hearing.

3. The Respondent has appealed the decision of the First-tier Tribunal promulgated on 30 June 2025 which allowed the Appellant’s human rights appeal.

4. The Respondent was initially refused permission to appeal by the First-tier Tribunal, but permission was later granted by Upper Tribunal Judge O’Brien on 9 September 2025. The Upper Tribunal Judge did not restrict the grounds which could be argued at the error of law hearing.

The Respondent’s Grounds

5. For completeness we have referred to the Grounds as they were numbered in the First-tier Tribunal permission application. In respect of Ground 1, the Respondent asserts that the Judge materially erred by applying the test of undue harshness in section 117C(5) of the Nationality, Immigration and Asylum Act 2002 to the Appellant’s son despite the child not being a qualifying child by reference to the definition in section 117D of the same Act.

6. In Ground 2, the Respondent contended that the Judge misapplied binding authority in respect of the demanding nature of the elevated undue harshness test in section 117C(5).

7. In Ground 3, the Respondent argued in the alternative that the Judge did not properly consider or identify what the very compelling circumstances over and above the exceptions were and had therefore not applied the threshold correctly.

8. In Ground 4, the Respondent referred to the finding at §22 that the Appellant does not live with his child but resides nearby and that alternative care arrangements could be made for the child if the Appellant were to be deported.

9. The author of the Grounds goes on to criticise the Judge for failing to give reasons for their conclusion that deporting the Appellant would be “akin to a bereavement” for the affected child and argued that the Judge had failed to give sufficient reasons for concluding that the public interest in deportation was outweighed by the particular facts of this case.

The error of law hearing

10. At the error of law hearing Mr Wilding indicated that he had prepared a specific skeleton argument for the error of law hearing which we have taken into account.

11. In her submissions, Ms Nolan indicated that she would no longer rely upon the Respondent’s Ground 1 on the basis that the Judge was in fact obliged to consider the undue harshness test when assessing the very compelling circumstances over and above the exceptions threshold. Ms Nolan accepted that the Judge had properly recorded that the Appellant could not take the direct benefit of this provision as the affected child was not qualifying one.

12. In respect of Ground 2, Ms Nolan referred the Tribunal to HA (Iraq) v Secretary of State for the Home Department [2022] UKSC 22 and directed us to §§22, 23 & 26 of the First-tier Tribunal decision. Ms Nolan asserted that the Judge had, in those paragraphs, failed to show that the elevated threshold of undue harshness applied on the particular facts of this case.

13. In respect of Ground 3, Ms Nolan relied on Kapikanya v Secretary of State for the Home Department [2025] EWCA Civ 987 (specifically §43) and submitted that it was clear that when assessing the very compelling circumstances threshold in section 117C(6), the deciding judge must identify either undue harshness affecting a qualifying child or a combination of undue harshness and some other factor. Ms Nolan submitted that the Judge’s conclusions in §39 and §§22 to 25 were inadequate.

14. As to Ground 4, Ms Nolan contended that the Judge had failed to identify any supporting evidence for the conclusion that the separation of the Appellant from the child would have a profound effect. Ms Nolan emphasised that the Judge had placed limited weight on the social worker’s report and that the ultimate conclusions were unclear.

15. Ms Nolan concluded by submitting that the Judge had failed to explain adequately why the undue harshness in this case was sufficient in itself to meet the very compelling circumstances “over and above” test by reference to the Judge’s §39.

16. In response, Mr Wilding relied upon his skeleton argument for the error of law hearing and submitted the following points:

a) The Judge was aware of the elevated threshold and properly self-directed himself (§§23 & 24 of the judgment).

b) The Respondent had not argued that the conclusion was perverse or irrational.

c) The Appellant accepted at the First-tier Tribunal hearing that he could not meet the exception in section 117C(5) on the basis that the child is not a qualifying one, albeit that the child is nonetheless a refugee who cannot travel to Albania.

d) In respect of Ground 3, it was submitted that the Judge clearly articulated and applied the test of very compelling circumstances at §§27 to 41.

e) It was also submitted that the case of Kapikanya could be distinguished on the basis that the foreign offender in that appeal had a history of extensive criminality and could not meet the substantive undue harshness requirement.

f) Mr Wilding reiterated the Judge’s conclusion at §39 that the Appellant’s deportation from the United Kingdom would be akin to a bereavement for the child.

g) It was further contended that the Judge properly applied the balance sheet approach to the proportionality assessment as required in Hesham Ali (Iraq) v Secretary of State for the Home Department [2016] UKSC 60 and that the finding at §39, read in the context of all of the earlier findings, was sufficient to show why the case was elevated into the “unduly, unduly harsh” class of case.

h) In response to Ground 4, it was submitted that the Judge had sufficiently identified all the relevant facts in respect of the Appellant’s side of the balancing exercise and had sufficiently identified a weighty combination of factors which was compliant with the tests in Yalcin v Secretary of State for the Home Department [2024] EWCA Civ 74 and Kapikanya.

Findings and reasons

17. In light of Ms Nolan’s unequivocal withdrawal of reliance upon Ground 1, this Tribunal is only required to decide the competing arguments made under Grounds 2, 3 & 4.

18. In assessing the error of law arguments, we have borne in mind the guidance of the Court of Appeal in KM v Secretary of State for the Home Department [2021] EWCA Civ 693, which is apt to explain the approach to be taken by the Upper Tribunal to decisions of the First-tier:

“77. I bear in mind the following well-established principles as to the approach of the Court of Appeal when considering a decision of a specialist Tribunal such as the UT:

(1) First, the UT is an expert Tribunal and an appellate court should not rush to find a misdirection an error of law merely because it might have reached a different conclusion on the facts or expressed themselves differently (per Lady Hale in AH (Sudan) v Secretary of State for the Home Department [2007] UKHL 49 at [30]).

(2) Second, the court should not be astute to characterise as an error of law what, in truth, is no more than a disagreement with the UT's assessment of the facts (per Lord Dyson in MA (Somalia) v SSHD [2010] UKSC 49 at [45]).

(3) Third, where a relevant point is not expressly mentioned by the Tribunal, the court should be slow to infer that it has not been taken into account (per Lord Dyson in MA (Somalia) at [45]).

(4) Fourth, experienced judges in this specialised Tribunal are to be taken to be aware of the relevant authorities and to be seeking to apply them without needing to refer to them specifically, unless it is clear from their language that they have failed to do so (per Popplewell J in AA (Nigeria) v SSHD [2020] EWCA Civ 1296 at [34]).

(5) Fifth, judicial restraint should be exercised when the reasons that a Tribunal gives for its decision are being examined and the appellate court should not assume too readily that the Tribunal misdirected itself just because not every step in its reasoning is fully set out in it (per Lord Hope in R (Jones) v First Tier Tribunal and Criminal Injuries Compensation Authority [2013] UKSC 19 [2013] 2 All ER 625.”

19. In assessing the grounds of appeal, it is important to note, with more precision, the First-tier Tribunal Judge’s findings of fact.

20. At §13, the Judge recorded Mr Wilding’s concession that the Appellant’s child was not a qualifying one by reference to section 117D of the Nationality, Immigration and Asylum Act 2002 as he was not a British citizen and had not lived in the United Kingdom for a continuous period of seven years or more.

21. At §16, the Judge clearly explained why he rejected Mr Wilding’s submission that the child’s position was “tantamount” to being a qualifying child due to his refugee status. The Judge decided that section 117D centred upon children who had a necessary degree of connection to the United Kingdom which did not obviously equate to that of a child holding refugee status who had resided for less than the requisite seven years.

22. In the same paragraph however, the Judge went on to conclude that the child’s refugee status in the United Kingdom is directly relevant to the consideration of the degree of harshness which would result from the Appellant’s deportation. The Judge emphasised that the Appellant’s son would not be able to visit him in Albania due to the child’s refugee status and that visits to a third country would likely be relatively infrequent due to financial and time restrictions, including the need to arrange suitable accommodation and an escort for the child to travel alone. In this respect it is important to note that the Appellant is no longer in a relationship with the child’s mother who is also a refugee from Albania.

23. The Judge correctly identified at §17 that, in light of the Respondent’s concession that the child could not be expected to relocate to Albania due to his refugee status, the only question to be assessed was the ‘go scenario’ in which the family life between the Appellant and the child would be severed by the Appellant’s deportation.

24. At §18, the Judge directed himself to the Supreme Court’s decision in HA and reminded himself that the Tribunal should not consider a notional comparator and reflected upon the view that the impact of deportation upon a particular child will depend upon an almost infinitely variable range of circumstances.

25. At §22, the Judge concluded that the Appellant’s claim to have a deep committed parental relationship with the child was established on all the evidence. The Judge noted the breakdown of the relationship with the child’s mother but recorded that the Appellant lives nearby to the child, takes and picks him up from preschool nursery at least three times per week and takes the child to play football every Sunday. The Judge also noted that the Appellant spends time with the child after nursery, takes him to the park and that the child sometimes stays overnight at his house.

26. At §23, the Judge rejected the Respondent’s argument that the relationship could be sufficiently maintained through modern means of communication and visits to third countries. The Judge decided that the child is at an age where he is relatively focused on his immediate family rather than the wider community and that it would be difficult to explain the Appellant’s physical absence to him due to his young age. The Judge concluded that the child would be profoundly affected by the loss of his relationship with his father. The Judge further referred to Lord Justice Jackson’s observation in HA (Iraq) v Secretary of State for the Home Department (Rev 1) [2020] EWCA Civ 1176 that for some children the deportation of a parent where face to face contact could not continue “may be more akin to a bereavement”.

27. In respect of the broader public interest features relevant to the assessment of very compelling circumstances over and above the exceptions, the Judge, from §27, highlighted binding authority from the Court of Appeal emphasising the significant weight to be given to the public interest. In particular the Judge cited from the decision in Zulfiqar v Secretary of State for the Home Department [2022] EWCA Civ 492.

28. In assessing the strength of the public interest on these particular facts, the Judge accepted the Respondent’s submission that the 2009 offence and the repeated breaches of immigration control were harmful to society and undermined public confidence in the ability of the UK government to control immigration.

29. At §32, the Judge also concluded that the Appellant had established a family life in the UK with the child at a time when his immigration status was highly precarious. Furthermore, the Judge concluded that there was no evidence that the Appellant had carried out any relevant rehabilitative work.

30. Additionally, the Judge went on to conclude that there was little evidence that the Appellant is socially or culturally integrated in the United Kingdom and that there are no obstacles to his reintegration in Albania. At §36, the Judge also considered the neutral considerations in sections 117B(2) & (3) of the Nationality, Immigration and Asylum Act 2002.

31. At §§38 - 40, the Judge sought to balance the competing interests which he had identified earlier and concluded that the strength of the Appellant’s relationship with his son and the likely impact upon the child of the separation caused by deportation would be akin to a bereavement meaning that the public interest was, in this case, outweighed.

Ground 2

32. Turning to Ground 2, we find that there is no merit in this Ground: the Judge quite clearly self-directed to the relevant binding authority on the nature of the undue harshness and very compelling circumstances thresholds. He gave clear and adequate reasoning for concluding that the elevated threshold was met on the facts of this case.

Ground 3

33. Turning back to Ground 3, we find that there is no merit in the Respondent’s argument. Contrary to subparagraph (e), the Judge expressly followed the requirements of binding authority by highlighting the need to identify circumstances over and above the exceptions and then explained those circumstances in the context of having already made findings on the weight to be given to the public interest in deportation.

Ground 4

34. We also see no merit in Ground 4. The Respondent’s assertion that the Judge did not give sufficient reasons for finding that the Appellant’s deportation would be akin to a bereavement, nor why the effect on the child was sufficient to outweigh the public interest is clearly not borne out by reference to the detail of the judgment as read as a whole.

35. We have already summarised the comprehensive findings made by the Judge and therefore we reject the Respondent’s contention that the Judge did not give adequate reasons, applying Simetra Global Assets Ltd & Anor v Ikon Finance Ltd & Ors [2019] EWCA Civ 1413 at §46.

36. For completeness we can detect no unlawful speculation on the part of the Judge in the assessment of the impact of deportation upon the child. It is inherently clear that the Judge explained why family life between the child and the Appellant would be effectively terminated as the child is a refugee who cannot be expected to travel to Albania. The Judge also sufficiently reasoned why the potential for the parties meeting in a third country was not feasible in this case and was entitled to conclude that communication via modern means would not remedy the loss bearing in mind the very young age of the child. The Judge was entitled to find that this case was at the most severe end of the spectrum envisaged by Jackson LJ at §157 of HA (Iraq). Nothing said by the Supreme Court casts doubt on what was said by the Court of Appeal in that respect.

37. We therefore do not accept the Respondent’s submission that the reasoning is incompatible with Yalcin and Kapikanya. Both authorities seek to provide succinct guidance to the approach to sections 117C(5) & (6) and do not introduce any new criteria to the assessment. In our view the Judge’s reasoning is compliant with Lord Justice Underhill’s judgment in Yalcin at §57.

Notice of Decision

38. Overall then, we conclude that the grounds of appeal do not make out any material errors of law in the Judge’s decision and the Respondent’s appeal is dismissed.

I Jarvis

Deputy Judge of the Upper Tribunal
Immigration and Asylum Chamber

25 November 2025