Tribunal decisions

The decision

IN THE UPPER TRIBUNAL
IMMIGRATION AND ASYLUM CHAMBER Case No: UI-2025-004154
First-tier Tribunal No: HU/62299/2024
LH/06820/2024

THE IMMIGRATION ACTS

Decision & Reasons Issued:
On 28 August 2026

Before

DEPUTY UPPER TRIBUNAL JUDGE JARVIS

Between

KELVIN GIMINEZ
(NO ANONYMITY ORDER MADE)
Appellant
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: Mr M. Symes, Counsel instructed by Rustem Guardian Solicitors
For the Respondent: Ms S. Keerthy, Senior Home Office Presenting Officer

Heard at Field House on 31 July 2026

DECISION AND REASONS
Introduction
1. The Appellant is a national of Italy, born on 1 January 1992. On 6 December 2023, the Respondent decided to deport the Appellant to Italy on the basis that it was conducive to the public good under section 3(5)(a) of the 1971 Immigration Act.
2. On 11 September 2024 the Respondent refused a human rights claim made by the Appellant in which he relied upon Article 8 ECHR grounds. The Appellant has exercised his right to appeal to the First-tier Tribunal under the Nationality, Immigration and Asylum Act 2002.

Relevant background
3. The Appellant’s history can be relatively briefly dealt with. The Appellant was resident in Brazil from his birth until 2015 when he travelled to Italy and spent around a year going through the process of becoming a citizen of that country. Having gained Italian citizenship, the Appellant travelled to the United Kingdom in 2016 to live and work in merchandising, as well as painting and decorating.
4. On 24 October 2019, he applied for status under Appendix EU of the Immigration Rules and was granted pre-settled status until 15 November 2024.
5. In February 2021, the Appellant met his partner Jamie Fleming who is a British citizen and they began living together in March 2021. In January 2023 the Appellant established his own online English language school.
6. The Appellant has also been diagnosed as HIV positive and takes medication which has improved his condition.
7. On 13 September 2023 the Appellant was convicted at Kingston upon Thames Crown Court of three offences: permitting his premises to be used for the supply of cocaine; permitting his premises to be used to supply other class A drugs; and permitting his premises to be used for the supply of class B drugs.
8. The sentencing judge initially sentenced the Appellant to concurrent suspended sentences but was subsequently compelled to vary this to a custodial term of 11 months imprisonment in order to achieve the objective of facilitating the Appellant’s release from custody on the day of sentencing. In doing this the Judge latterly recognised that the Appellant had already been remanded in custody and a qualifying curfew such that he had already served the equivalent custodial part of a 13-month term of imprisonment.
9. The Appellant was then detained under immigration powers until the First-tier Tribunal granted immigration bail on 7 March 2024; the Appellant was finally released on 10 March 2024.
10. The Appellant’s appeal to the First-tier Tribunal was initially heard and then dismissed on 3 April 2025. The Appellant appealed to the Upper Tribunal and on 2 June 2026, Deputy Upper Tribunal Judge Naik KC concluded that the First-tier Judge had materially erred in law and set aside that decision in full.
11. The appeal therefore came before the Upper Tribunal as a substantive rehearing of the Appellant’s human rights appeal against his deportation.
The appeal hearing
12. The appeal hearing was heard in-person at Field House in London. The Appellant attended the hearing with his partner.
13. Preliminarily, Ms Keerthy sought to argue that the Upper Tribunal should not proceed on the basis that the First-tier Tribunal decision had been set aside in its entirety and instead submitted that a number of the First-tier Judge’s findings had not in fact been challenged by the Appellant.
14. Having heard submissions from both representatives about this issue, I decided that the Upper Tribunal should proceed on the basis that the First-tier Tribunal decision was set aside in its entirety. Firstly, the Deputy Upper Tribunal Judge did not expressly preserve any of the specific findings in the First-tier decision which would have been the predicate basis upon which I could generally proceed.
15. Secondly, I note that Ms Keerthy is recorded (at §34 of the error of law judgment) as having agreed that if a material error of law was found then the evidence would need to be reheard and there is no indication that the Respondent sought to limit the future evidential issues at that stage.
16. I therefore decided to hear the appeal afresh. The Appellant was cross-examined by Ms Keerthy. In light of the Appellant’s responses, Ms Keerthy indicated to the Upper Tribunal that she did not seek to challenge the evidence given by Mr Fleming in his witness statement and therefore he was not asked any questions.
17. I then heard submissions from both representatives who relied upon the various skeleton arguments which have been provided to the First-tier Tribunal and Upper Tribunal; I am grateful to both of them for their assistance.
Findings and reasons
18. In coming to my conclusions, I have had careful regard to the following documents: the Appellant’s composite bundle of 408 pages which was produced for the error of law hearing; the decision of Deputy Upper Tribunal Judge Naik KC, dated 2 June 2026; the Appellant’s supplementary appeal bundle of 162 PDF pages which includes the latest Appellant’s skeleton argument, dated 24 July 2026 and the Respondent’s supplementary skeleton argument of 7 pages.
19. As the appeal has been pursued under Article 8 ECHR, I have applied the balance of probabilities to my assessment of the evidence and considered all the evidence, in the round, at the date of the hearing.
Section 117D of the Nationality, Immigration and Asylum Act 2002
20. The Tribunal’s initial task is to consider and apply section 117D(2) of the Nationality, Immigration and Asylum Act 2002:
“(2) In this Part, “foreign criminal” means a person—

(a) who is not a British citizen,
(b) who has been convicted in the United Kingdom of an offence, and
(c) who—

(i) has been sentenced to a period of imprisonment of at least 12 months,
(ii) has been convicted of an offence that has caused serious harm, or
(iii) is a persistent offender.”
21. The Appellant asserts that he has not committed an offence causing serious harm whereas the Respondent asserts that he has. The importance of this is that if the Respondent establishes that the Appellant’s offence has caused serious harm the scheme in section 117C applies to him when the Article 8 ECHR appeal is decided by the Tribunal.
22. This has been a contentious issue in the appeal and was effectively the reason why the Deputy Judge found error in the decision of the First-tier Tribunal and set it aside. It is therefore necessary for me to refer to the relevant authorities which have been relied upon by both parties.
23. In LT (Kosovo) & Anor v The Secretary of State for the Home Department [2016] EWCA Civ 1246 the Court said at §18:
“There is clearly no rule of law which requires every instance of supply of a Class A drug to be treated as causing serious harm for the purpose of deportation decisions, certainly nothing in the text of paragraph 398(c). Nor however, in my judgment, does the rule exclude from its ambit a case where such a view is taken. Nor again is 398(c) limited to the case where the sentenced passed does not apparently reflect the gravity of the offending. I would reject Mr Sedon's submission to the contrary. Serious harm is not defined in the Rules.”
24. Later in, SC (Zimbabwe) v Secretary of State for the Home Department [2018] EWCA Civ 929, the Court also concluded at §19:
“…It seems to me to be quite clear that once the matter comes before a tribunal or a court, what has to be applied is s.117D(c) of the Act. The words of that provision are the words which Parliament has chosen to enact, without more. The three elements of that paragraph of the subsection are in clear terms and do not require any gloss to be put upon them by the reference to the Rules. The view of the Secretary of State or indeed of a judge in sentencing remarks may be of assistance to a tribunal or court in deciding whether an offence has caused serious harm or whether an offender is a persistent offender, but I do not see that the statutory words compel any particular weight to be given to the Secretary of State's view on either in the assessment.”
25. In Mahmood, R (on the application of) v Upper Tribunal (Immigration and Asylum Chamber) & Ors [2020] EWCA Civ 717, the Court observed at §45:
“Although in LT (Kosovo) at [24], the Court questioned the Secretary of State's view that 'all drugs offences are by their nature serious'; it accepted as 'perfectly reasonable' the Secretary of State's view that supplying class A drugs causes serious harm. In that case, LT had been convicted of an offence of possession with intent to supply a single deal of less than one gram of a class A drug, cocaine, to a friend, for which he had been sentenced to a term of 10 months. We consider below the argument that it is not the Secretary of State's view of the matter that is material when considering the provisions of Part 5A of the NIAA 2002. However, we note the Court's view in LT (Kosovo) that it was a reasonable view that dealing in class A drugs even on a personal basis caused serious harm, on the basis of societal harm caused by the distribution and consumption of drugs.”
26. At §41, the Court also said:
“…Nor is there good reason to suppose a statutory intent to limit the harm to an individual. Some crimes, for example, supplying class A drugs, money laundering, possession of firearms, cybercrimes, perjury and perverting the course of public justice may cause societal harm. In most cases the nature of the harm will be apparent from the nature of the offence itself, the sentencing remarks or from victim statements. However, we agree with Mr Biggs, at least to this extent: harm in this context does not include the potential for harm or an intention to do harm. Where there is a conviction for a serious attempt offence, it is likely that the sentence will be more than 12 months.”
27. I have therefore been careful not to treat the Respondent’s view of serious harm as if it was decisive of the issue and have looked carefully at the judge’s sentencing remarks with the observations made by the Supreme Court in HA (Iraq) v Secretary of State for the Home Department [2022] UKSC 22 (“HA”) at §§66-67 in mind. I have been mindful of the need to assess whether there has been serious harm arising from the offending behaviour rather than the potential for or intention to do harm.
28. In the sentencing remarks Recorder Gold noted that they had previously imposed a suspended sentence order on each of the three counts but later understood that it was inappropriate to sentence the Appellant to a suspended sentence as he had already served the equivalent custodial part of a 13-month sentence of imprisonment. The sentencing judge therefore decided that the Appellant should be sentenced to an immediate sentence of imprisonment to run concurrently with the longest sentence of 11 months. The effect of that sentence meant that the Appellant was to be released immediately on licence and post-sentence supervision which would expire on 25 September 2024.
29. I have also had careful regard to paragraph 13 of the Appellant’s witness statement (dated 22 February 2024) in which he describes himself as being stuck in a cycle of financial strain and substance dependency (particularly on GHB of which he was consuming 1.5 ml per hour daily) from the beginning of 2023.
30. The Appellant explains that his addiction to drugs placed a strain on his personal relationships and also obstructed his ability to work consistently as a painter and decorator or as an online language teacher resulting in frequent absences and financial instability.
31. The Appellant further states that under financial pressure he decided to accept an offer from his former drug dealer to sublet half of his storage space in Clapham. The Appellant accepts in his statement that he knew that the drug dealer was going to store illegal substances in the storage unit in exchange for £400 per calendar month towards rent and an unlimited GHB supply for the Appellant’s personal use.
32. The Appellant goes on to state that he had no knowledge that the dealer would supply drugs from the premises and never agreed for him to do so.
33. On 2 April 2023 armed intruders attempted to break into the storage unit. Two masked men carrying a knife stole bags of drugs that were in the lock-up. The Appellant called the police, and it was at this stage that he was arrested and taken into custody.
34. The pre-sentence report (22 November 2023) provides further information that the drugs being supplied from the lock-up were cocaine, methylamphetamine hydrochloride and ketamine.
35. The police discovered a significant quantity of drugs which led to the arrest of the Appellant and another man who admitted being there to purchase drugs. Further drugs were discovered in a suitcase near to the scene.
36. The author of the report further observed that the consequences of the drugs trade and drug use extend far and wide often causing misery in the lives of others and negatively impacting society.
37. In the most recent Appellant’s skeleton argument, it is contended (at paragraph 15) that the Appellant’s offending behaviour is not at the level of harm described by the Court of Appeal in Barot & Anor, R (On the Application Of) v Secretary of State for the Home Department [2026] EWCA Civ 218 at §38.
38. Mr Symes also emphasised the content of the presentence report which described the Appellant as susceptible to exploitation because of his own drug addiction. The Appellant also emphasised that the sentencing judge originally imposed a suspended sentence which was later varied due to ‘technical considerations’ but was nonetheless substantially lower than the upper limit of the range indicated in the sentencing guide guidelines of four years imprisonment. Mr Symes argued that this was a strong indicator that the Recorder did not consider the Appellant’s offending to fall into the serious harm category and that he was previously of good character.
39. It was further asserted that there is no evidence in this particular case about any harm in fact caused by the Appellant and that the Respondent had failed to prove her allegation.
40. Furthermore, Mr Symes argued that the Appellant was not guilty of supplying drugs and had not consented to the supply of drugs from the property which had occurred.
41. I should note for completeness that the Respondent has not sought to challenge the Appellant’s witness statement evidence about the circumstances surrounding the criminal activity resulting in the raid on the Clapham lock-up in April 2023.
The Tribunal’s assessment
42. I have kept in mind the observations made by the sentencing judge when deciding to sentence the Appellant to 11 months imprisonment. I have also been mindful of the fact that the process of sentencing is multi-faceted and not solely about the level of harm caused by the offence in question.
43. I have also kept in mind the observations made by the Court of Appeal in Mahmood at the end of §41 and note that the sentence in this case was under 12 months. I nonetheless find that the Court was simply attempting to provide some general guidance rather than providing an absolute rule.
44. I have sought to apply a common-sense approach to the evaluation of the seriousness of the harm as emphasised by the Court at §42 of Mahmood.
45. Overall, I conclude that the Respondent has established that the Appellant’s offending has caused serious harm. Whilst I take on board that the Appellant himself is not said to have supplied any of the drugs, and also bear in mind the unchallenged evidence that he did not agree to the premises being used for supplying drugs, I nonetheless conclude that allowing a known drug dealer to store significant quantities of illegal drugs in his lock-up which were then supplied/distributed (whether from his premises or not) is an offence which did cause serious harm. I reach my own conclusion that such offending behaviour has a material adverse impact upon society by aiding the distribution and consumption of illegal drugs.
46. I therefore conclude on the totality of the evidence that the Appellant’s offending has caused serious harm for the reasons outlined above. I do not accept the Appellant’s argument that his offending behaviour was effectively inert – in my view this downplays the consequence of his own actions and ignores the obvious context for why the drugs were being stored on his premises in the first place.
Section 117C of the Nationality, Immigration and Asylum Act 2002
47. The consequence of this finding is that the Appellant falls into the definition of a foreign criminal under section 117D(2)(c)(2) meaning that the criteria in section 117C of the Act must be applied in respect of the consideration of his Article 8 ECHR appeal.
48. As per section 117C(3) the Appellant can in principle take the benefit of exception 1 and exception 2 as outlined in sections 117C(4) or (5).
49. In the hearing before me Mr Symes submitted that he did not seek to advance the argument that the Appellant met any of the sub-criteria in exception 1 (section 117C (4)). Mr Symes however did argue that the Appellant’s deportation would have an unduly harsh impact upon his qualifying partner Mr Fleming (section 117C(5)).
Section 117C(5) - undue harshness
50. I have applied HA (Iraq) v Secretary of State for the Home Department [2022] UKSC 22 at §41 onwards:
“41. Having rejected the Secretary of State’s case on the unduly harsh test it is necessary to consider what is the appropriate way to interpret and apply the test. I consider that the best approach is to follow the guidance which was stated to be “authoritative” in KO (Nigeria), namely the MK self-direction:
“… ‘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.”
42. This direction has been cited and applied in many tribunal decisions. It recognises that the level of harshness which is “acceptable” or “justifiable” in the context of the public interest in the deportation of foreign criminals involves an “elevated” threshold or standard. It further recognises that “unduly” raises that elevated standard “still higher” - ie it involves a highly elevated threshold or standard. As Underhill LJ observed at para 52, it is nevertheless not as high as that set by the “very compelling circumstances” test in section 117C(6).
43. Whilst it may be said that the self-direction involves the use of synonyms rather than the statutory language, it is apparent that the statutory language has caused real difficulties for courts and tribunals, as borne out by the fact that this is the second case before this court relating to that language within four years. In these circumstances I consider that it is appropriate for the MK self-direction to be adopted and applied, in accordance with the approval given to it in KO (Nigeria) itself.”
51. I start by noting that there is no challenge by the Respondent to the Appellant’s claim that he is in a genuine and subsisting relationship with Mr Fleming and that apart from a period of time when they were not able to live together due to the Appellant’s time in custody and later bail conditions, they have been cohabiting. I also accept and take into account, the fact that the parties are now engaged.
52. In assessing whether the parties could both go to Italy, I note that the Appellant relied upon the fact that he did not live in Italy for very long and that he does not speak the language. I also take into account that Mr Fleming does not speak Italian, has no personal connection to that country and has been significantly affected by the prospect of being separated from the Appellant. Mr Symes described the couple as not having much social capital in Italy and I accept that.
53. Furthermore, the Appellant and his partner rely upon the fact that they are now involved in a property management business albeit that it is very nascent and that Mr Fleming is a trustee for a charity working with vulnerable young people.
54. In my view whilst there would clearly be significant disruption, especially to Mr Fleming’s life as he has lived the entirety of his life in the United Kingdom, does not speak Italian and would find himself being required to leave his charitable work, family and friends, I nonetheless conclude that this does not reach the elevated threshold of undue harshness albeit I accept that it will be challenging and will have a negative impact on others in the UK.
55. I agree with the Respondent that the Appellant could continue to pursue his property management business in the United Kingdom from Italy albeit that I also accept that he might have to hire someone to be the ‘boots on the ground’ as Mr Symes suggested in his submissions. If I am wrong about that I nonetheless do not accept that it would be unduly harsh even if it meant that the business ended and their employee had to be let go.
56. I take into account that the Appellant has only lived for a relatively short period in Italy (around a year) and during that time was assisted by an Italian speaker but again I do not consider that this individually or cumulatively reaches the elevated threshold described in HA. There is no good reason why the Appellant could not use the English language at first, and no good reason as to why he could not learn a sufficient level of Italian within a reasonable timescale.
57. I have also had sight of the numerous letters of support provided by the Appellant’s friends in the UK and it is clear that he has close connections in this country.
58. I should add for completeness that whilst the Appellant has asserted that he would not be able to relocate as his HIV medication is not available in Italy, I observe that there is no medical or expert evidence to corroborate that in this appeal. There is equally no medical/expert evidence to suggest that the Appellant could not find an effective equivalent in Italy, and I therefore find that this particular aspect of the Appellant’s case is not made out on balance.
59. Should I be wrong in that overall conclusion, I nonetheless also have to consider whether it would be unduly harsh for the Appellant to be separated from his partner by the act of deportation.
60. In my view overall it is not unduly harsh for the Appellant to be separated from Mr Fleming. The law requires me to look at the issue solely from the perspective of the partner without resorting to factoring in the public interest. I have no doubt that the Appellant and his partner are a loving couple and it is clear that Mr Fleming has remained committed to the Appellant despite his drug addiction, time in prison and ongoing deportation proceedings.
61. I equally have no doubt that Mr Fleming will find separation from the Appellant to be distressing and I also consider, taking the case and its highest, that he might have to find other work if the property management business is not able to operate partly remotely from Italy. However again, bearing in mind the elevated threshold in the undue harshness test, I conclude that the disruption caused by the separation in this case does not meet that threshold.
Very compelling circumstances over and above the exceptions
62. In Majera v Secretary of State for the Home Department [2025] EWCA Civ 1597, the Court concluded in the following way:
“11. The significance of the words "over and above" is, therefore, that the serious offender must not only establish circumstances relating to private or family life that provide a basis for concluding that deportation would involve a disproportionate interference with Article 8 rights which is "very strong indeed"; the circumstances must also be compelling to a degree that goes "well beyond" anything that does or would fall within either of the Exceptions.”
63. Furthermore, at §42:
“The very compelling circumstances test adds some superstructure. The statutory provisions and the passages I have cited at [5]-[16] above identify factors that have to be fed into this particular proportionality assessment and provide guidance as to how they must be addressed. These matters will also need to be borne in mind when assessing the adequacy of reasons. To recapitulate some key features, the legitimate public interest aims which may justify interference with Article 8 rights include not only public safety but also deterrence. The weight of the public interest in the deportation of foreign criminals increases in proportion to the seriousness of the offending. The circumstances relied on to override that public interest must be within the scope of Article 8. Those circumstances must provide a "very compelling" basis for concluding that deportation would be a disproportionate interference with Article 8 rights (circumstances cannot be "very compelling" in the abstract). The circumstances must also be substantially more compelling than a bare claim within Exception 1 or Exception 2 would be or, putting it another way, "very strong indeed". Rehabilitation will usually be of little or no material weight and rarely of great weight.”
64. I also weigh in to my assessment that the Appellant’s deportation is not driven by the automatic deportation provisions in section 32 of the 2007 UK Borders Act 2007 and that the Appellant’s sentence is a relatively minor one by comparison to the sentencing guidelines relied upon by the Appellant.
65. I further take into account that the author of the pre-sentence report considered that the Appellant had shown deep regret for his offence, that his decision-making had been influenced by his own drug dependency, that he has abstained from drugs since being in custody and has positively engaged in courses to help him maintain his abstinence.
66. The pre-sentence report further concludes that the Appellant is a low level of risk of reoffending (page 128 of the composite bundle) and there has been no offending since 2023.
67. In respect of the risk of reoffending, I have applied §58 of HA (Iraq) v Secretary of State for the Home Department [2022] UKSC 22:
“… In a case where the only evidence of rehabilitation is the fact 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. If, on the other hand, there is evidence of positive rehabilitation which reduces the risk of further offending then that may have some weight as it bears on one element of the public interest in deportation, namely the protection of the public from further offending. Subject to that clarification, I would agree with Underhill LJ’s summary of the position at para 141 of his judgment:
“What those authorities seem to me to establish is that the fact that a potential deportee has shown positive evidence of rehabilitation, and thus of a reduced risk of re-offending, cannot be excluded from the overall proportionality exercise. The authorities say so, and it must be right in principle in view of the holistic nature of that exercise. Where a tribunal is able to make an assessment that the foreign criminal is unlikely to re-offend, that is a factor which can carry some weight in the balance when considering very compelling circumstances. The weight which it will bear will vary from case to case, but it will rarely be of great weight bearing in mind that, as Moore-Bick LJ says in Danso, the public interest in the deportation of criminals is not based only on the need to protect the public from further offending by the foreign criminal in question but also on wider policy considerations of deterrence and public concern. I would add that tribunals will properly be cautious about their ability to make findings on the risk of re-offending, and will usually be unable to do so with any confidence based on no more than the undertaking of prison courses or mere assertions of reform by the offender or the absence of subsequent offending for what will typically be a relatively short period.”
68. I find that the Appellant’s abstinence from drugs (bearing in mind the severity of his previous addiction) is very much to his credit and I have given it some weight when assessing if there are very compelling circumstances.
69. I have further factored in my earlier findings as to the extent of the Appellant’s family life with his partner and the impact upon them of deportation.
70. I have also taken into account the Appellant’s representations about his extensive network of friends in the UK and his nascent business venture with Mr Fleming.
71. I also reflect on the fact that deportation will disrupt the Appellant’s private life in the UK including his friendships.
72. I note that neither representative expressly submitted upon the factors in section 117B of the Nationality, Immigration and Asylum Act 2002. For completeness I also find that the Appellant takes the neutral benefit of sections 117B(2) & (3) in that he speaks English and he is financially independent. I also find that the Appellant’s private life in the UK should be given little weight as his immigration status in the UK is precarious as he only has pre-settled status under Appendix EU of the Rules albeit that this cannot be determinative of the Article 8(2) ECHR assessment.
73. Ultimately, looking at the totality of my findings I am unpersuaded that the particular circumstances in this case are compelling enough to meet the demanding threshold of very compelling circumstances over and above the exceptions when looking at the weight of the public interest in this particular case even taking into account that the Appellant’s sentence of imprisonment is very much at the lower end of the spectrum.
Notice of Decision
The Article 8 ECHR appeal is dismissed.

I Jarvis

Deputy Judge of the Upper Tribunal
Immigration and Asylum Chamber

19 August 2026