Tribunal decisions

The decision

IN THE UPPER TRIBUNAL
IMMIGRATION AND ASYLUM CHAMBER
Case No: UI-2025-004367

First-tier Tribunal Nos: HU/63867/2024
LH/01026/2025

THE IMMIGRATION ACTS

Decision & Reasons Issued:

On 28th of November 2025

Before

UPPER TRIBUNAL JUDGE SHERIDAN

Between

The Secretary of State for the Home Department
Appellant
and

Arturas Pielikys
(NO ANONYMITY ORDER MADE)
Respondent

Representation:
For the Appellant: Ms McKenzie, Senior Home Office Presenting Officer
For the Respondent: Mr Rasul, Solicitor, Equity Justice Solicitors

Heard at Field House on 17 November 2025

DECISION AND REASONS
Introduction
1. This decision is given orally following a hearing where submissions were made by Mr Rasul and Ms McKenzie.
2. The appeal is brought by the Secretary of State. However, for convenience I will refer to the parties as they were designated in the First-tier Tribunal.
3. This appeal turns on the application of Section 117C of the Nationality, Immigration and Asylum Act 2002, which sets out the legal test applicable where a foreign criminal who faces deportation maintains that his deportation would violate article 8 ECHR. It provides:
(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.
Background
4. The appellant is a citizen of Lithuania who has lived in the UK since 2009. He was granted settled status under the EU Settlement Scheme.
5. The appellant has a daughter in the UK who was born in 2010.
6. The appellant has a lengthy criminal record. His most recent conviction was in July 2024, when he was sentenced to twenty months’ imprisonment for three counts of common assault and two counts of assault occasioning actual bodily harm.
7. In July 2024 a deportation order was made against the appellant. In response, the appellant made representations arguing that removing him to Lithuania would breach Article 8 of the ECHR. In October 2024, the respondent refused the appellant’s human rights claim.
8. The appellant appealed to the First-tier Tribunal when his appeal came before Judge Cas O’Garro, who allowed the appeal.
First-tier Tribunal decision
9. The focus of Judge O’Garro’s decision was the relationship between the appellant and his (15-year-old) daughter. The key findings of fact are set out in paragraph 52, where the judge stated:
“It is accepted that the appellant is the biological father of S and therefore one of her parents. The appellant has provided no evidence of direct parental care of S. S lives with her mother. The appellant was abusive towards the child’s mother which led to their separation. I have seen a copy of Hillingdon Social Services LAC review/report of found in the respondent bundle which showed that in 2021, S had ‘blocked’ her father and did not want contact with him. It is of note that there is no evidence from either S’s mother or S herself, who is aged 15 and can express a view on her relationship with the appellant, about the part the appellant plays in S’s life. I find that there is insufficient evidence before the Tribunal that direct contact between the appellant and S has restarted. However, there is evidence that the appellant has been sending money regularly to S which is an element of parental care and which I find, is evidence that the appellant has a genuine and subsisting parental relationship with his daughter S.”
10. The judge considered whether Exception 1 in section 117C(4) applied. She found that it did not as the appellant has not lived most of his life in the UK and would not face very significant obstacles integrating into Lithuania.
11. The judge considered whether Exception 2 in section 117C(5) applied. She found that it did not on the basis that it would not be unduly harsh for the appellant’s daughter to remain in the UK without the appellant. The reasons given for this are that the appellant’s daughter will remain in a settled and stable situation with her mother and, as she gets older, will be able to visit and communicate with the appellant in Lithuania if she wishes to.
12. The judge then considered section 117C(6). In paragraph 58 she directed herself that this requires a “wide ranging evaluative exercise”.
13. Applying section 117C(6), the judge allowed the appeal on this basis that (a) the appellant is well integrated in the UK having lived in the country for 15 years; (b) he wishes to “continue to build” his relationship with his daughter and it is “paramount” for both him and his daughter have this opportunity; and (c) the appellant has not reoffended since release from prison, is remorseful and has engaged in rehabilitative activities.
Grounds of appeal
14. The respondent makes a range of arguments. The two strongest are that (a) the evidence that was before the First-tier Tribunal does not support the finding that it is “paramount” for the appellant’s daughter to maintain a relationship with the appellant; and (b) it was irrational to find that there were circumstances “above and beyond” Exceptions 1 and 2 when neither of the Exceptions were met and there were no compelling circumstances outside the Exceptions.
The paramount interests of the appellant’s daughter
15. The judge found that it is “paramount” for the appellant’s daughter to build a relationship with the appellant. This is stated in paragraphs 60 and 61 of the decision when considering section 117C(6).
16. The difficulty with the judge’s “paramountcy” finding is that, as Ms McKenzie observed, it is not supported by any evidence. The judge stated in paragraph 52 that there was no evidence from the appellant’s daughter, the daughter’s mother, or anyone else, about the daughter’s circumstances or her relationship with the appellant. In the absence of any such evidence, there was not an evidential basis to find that it was “paramount” for the daughter to build a relationship with the appellant.
17. The finding of “paramountcy” in the absence of supporting evidence is an error of law. The error is material because the “paramountcy” finding appears to be a central reason why the judge found there to be very compelling circumstances over and above Exceptions 1 and 2 such that section 117C(6) applied.
18. The error is compounded by the observation that, contrary to what the judge stated in paragraph 52, there was in fact evidence from the daughter’s mother before the FTT: a witness statement dated 30 June 2025, where the mother states, inter alia, that the appellant provides financial support to his daughter and regularly communicates with her. Mr Rasul argued that this letter supports the conclusion the judge reached about the importance of the appellant’s relationship with his daughter. I am not persuaded by this argument because this brief letter from the daughter’s mother containing no detail or information about the daughter’s life or her relationship with the appellant could not, without more, justify a finding that it is of paramount importance to the daughter for the appellant to remain in the UK.
The relationship between the Exceptions in sections 117C(4) and (5) and section 117C(6).
19. It is well-established that even though the wording of section 117C indicates that only offenders whose sentence of imprisonment exceeds four years can fall within subsection 117C(6), the provision is also applicable to offenders sentenced to less than four years where there are very compelling circumstances over and above those described in Exceptions 1 and 2: see NA (Pakistan) v SSHD [2016] EWCA Civ 662. The judge was therefore correct to consider whether section 117C(6) applied.
20. For section 117C(6) to apply there needed to be exceptional circumstances “over and above” the Exceptions in 1 and 2. The judge fell into error because although she directed herself correctly as to what section 117C(6) requires, the findings made when applying section 117C(6) do not, on any legitimate view, show compelling circumstances over and above the Exceptions.
21. The judge gave three reasons for finding section 117C(6) was satisfied. The first reason was that the appellant is well integrated in the UK having lived in the country for 15 years. This consideration relates to Exception 1 which applies to socially integrated individuals who have been lawfully resident in the United Kingdom for most of their life and who would face very significant obstacles integrating in the country to which they are deported. The appellant fell very far short of meeting this Exception, for the reasons given by the judge when finding this Exception was not met. Plainly, therefore, the fact that the appellant has lived in the UK for 15 years and is integrated cannot, on any view, be a compelling circumstance over and above one of the Exceptions.
22. The second reason given for finding that section 117C(6) was met was the appellant’s relationship with his daughter. This consideration relates to Exception 2, which would apply if the effect on the daughter of the appellant’s deportation would be unduly harsh. The judge found that it would not be unduly harsh. As the unduly harsh threshold was not met, it follows that the effect on the appellant’s daughter cannot be more than (ie “over and above”) unduly harsh.
23. The third reason given for finding that section 117C(6) was met was that the appellant had not reoffended since release from prison, was engaging in rehabilitative activities and was remorseful. Given that, at the date of the hearing, the appellant, who has a long history of offending, had only been out of prison for one year, this is not a consideration that, on any legitimate view, could, in and of itself, mean that there were compelling circumstances over and above the Exceptions.
24. Having found that the Exceptions were not satisfied, the judge could only allow the appeal if there were compelling circumstances “over and above” the Exceptions. The judge erred because the evidence before the judge did not – and, on any view, could not – support such a conclusion.
Disposal
25. As I explained when giving my reasoning in respect of the “paramountcy” finding, when assessing undue harshness under section 117C(5) the judge mistakenly stated that there was no evidence from the appellant’s mother. There was, in fact, a statement from her dated 30 June 2025. The overlooking of this statement undermines the conclusion in respect of Exception 2 in section 117C(5). Therefore, the issues relevant to this Exception – in particular undue harshness in respect of the appellant’s daughter - will need to be looked at afresh.

26. The general principle is that cases will be retained in the Upper Tribunal for remaking. However, there are exceptions to this, as set out in paragraphs 7.2.(a) and (b) of the Practice Statement. I am satisfied that paragraph 7.2(b) applies, which is that remitting will be appropriate where extensive judicial fact finding is likely be required. I anticipate that there will need to be potentially extensive fact finding regarding the appellant’s relationship with his daughter given that the judge’s findings on this cannot stand and the appellant’s representatives have indicated (in the rule 24 response) that further evidence on this issue will be provided. It may be that oral evidence from the appellant’s daughter, daughter’s mother and others will be given, in which case I consider remittal to the First-tier Tribunal appropriate.
Notice of Decision
27. The decision of the First-tier Tribunal involved the making of an error of law and is set aside. The appeal is remitted to the First-tier Tribunal to be made by a different judge.

D. Sheridan

Judge of the Upper Tribunal
Immigration and Asylum Chamber

24.11.2025