Tribunal decisions

The decision

IN THE UPPER TRIBUNAL
IMMIGRATION AND ASYLUM CHAMBER
Case No: UI-2025-004652

First-tier Tribunal No: HU/62965/2023
LH/08034/2024

THE IMMIGRATION ACTS

Decision & Reasons Issued:
On 21 January 2026

Before

UPPER TRIBUNAL JUDGE BULPITT

Between

GX
(ANONYMITY ORDER MADE)
Appellant
and

SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: Mr A Badar, Counsel instructed by Expert Law Solicitors
For the Respondent: Ms S McKenzie, Senior Home Office Presenting Officer

Heard at Field House on 9 January 2026

Order Regarding Anonymity

Pursuant to rule 14 of the Tribunal Procedure (Upper Tribunal) Rules 2008, the appellant and his partner are granted anonymity.

No-one shall publish or reveal any information, including the name or address of the appellant, likely to lead members of the public to identify the appellant or his partner. Failure to comply with this order could amount to a contempt of court.

DECISION AND REASONS
1. The appellant is 34 years old and a citizen of Albania. He first arrived in the United Kingdom hidden in the back of a lorry. His presence in the country was discovered when in April 2019 he was found in possession of false identity documents, growing cannabis as part of a commercial operation in Nottingham. He was prosecuted for being concerned in the production of a controlled drug, to which he pleaded guilty and for which was sentenced on 24 June 2019 to 20 months imprisonment. He was deported to Albania having served five months of that sentence in September 2019. The terms of the deportation order precluded his return to the United Kingdom.
2. Notwithstanding the deportation order that was in force, on 30 December 2020 the appellant was discovered to be back in the United Kingdom. He was arrested and detained for the purpose of removal to Albania but on 3 January 2021, he claimed asylum and that he had been the victim of human trafficking. He was released on immigration bail while the respondent considered those claims. In June 2022 he additionally applied for the revocation of the deportation order and for leave to remain in the United Kingdom on the basis of the private and family life he said he had established.
3. On 7 September 2024 the respondent issued a decision refusing the appellant's protection and human rights claims and maintaining the deportation order. The appellant appealed against that decision to the First-tier Tribunal and his appeal was heard on 28 March 2025 by First-tier Tribunal Judge Cartin (“the Judge”). In a decision that was promulgated on 19 May 2025, the Judge dismissed the appellant’s appeal. The appellant has appealed to this Tribunal against the Judge’s decision having been granted permission to do so by Upper Tribunal Judge Lodato.
4. Having considered the appellant’s arguments with care I am satisfied that the Judge’s decision did not involve a material error of law. I have accordingly dismissed the appellant’s appeal. I give my reasons for that conclusion in the following paragraphs.
The appellant’s protection and human rights claims
5. The appellant’s protection claim was that having returned to Albania in September 2019 he borrowed a large sum of money from local gangsters in order to start a coffee shop. He claimed that despite making regular repayments of that loan the money lenders demanded more money from him, threatening and attacking him on a number of occasions. He said the money lenders had connections to the police in Albania and so he was not able to rely on state protection there. Having tried hiding at a friend’s house, he said he decided he has to flee Albania to protect himself. He travelled to Belgium where he encountered some Albanian men who transported him to France where he was forced to work in a cannabis factory until he managed to escape to the United Kingdom. He claimed that he had a well-founded fear of persecution in Albania by the money lenders and by people traffickers such that he should be recognised as a refugee.
6. The appellant’s human rights claim was that he shares a family life in the United Kingdom with Z, an Albanian national who he met in the United Kingdom and who has been recognised to be a refugee, and their child A who was born on 31 March 2022. He also claimed that he had established a private life since his return to the United Kingdom which included the fact that he suffers from Mixed Anxiety and Depression of Moderate Intensity. He claimed that the impact of his deportation would be unduly harsh on Z, and A and that the strength of his private and family life outweighed the public interest in his deportation.
The respondent’s decision
7. The respondent did not believe the appellant’s asylum claim. She considered his account to be inconsistent and implausible. She also considered the account to be inconsistent with external information about Albania and that the appellant’s credibility was undermined by the fact he did not claim asylum when he arrived in the United Kingdom but only after being detained for removal. The respondent concluded therefore that the appellant could safely return to Albania.
8. In relation to the appellant’s human rights claim, the respondent noted that the appellant’s sentence of 20 months imprisonment meant that his deportation was conducive to the public good and was therefore in the public interest. She did not accept that the appellant had a genuine and subsisting parental relationship with A or a genuine and subsisting relationship with Z. Neither did the respondent accept that the effect of the appellant’s deportation would be unduly harsh on either Z or A. The respondent noted that the appellant’s private life in the United Kingdom was established while he was in the country unlawfully and found that in all the circumstances there were no very compelling circumstances to outweigh the public interest in his deportation.
The Judge’s decision
9. By the time the Judge heard the appellant’s appeal, the appellant and Z had had a second child, B who was born on 3 February 2025. It was accepted at the hearing before the Judge that A was in a genuine and subsisting relationship with Z, A and B. It was further agreed that Z is not a “qualifying partner” and that, A and B are not “qualifying children” as defined in s117D of the Nationality Immigration and Asylum Act 2002 (the 2002 Act). The Judge heard evidence from the appellant and from Z and submissions from the parties before making his decision.
10. The Judge first considered the appellant’s protection claim but found that it was not credible and that even applying the low standard of proof the appellant had failed to establish the facts of the claim. The Judge found at [43] that the appellant did not take out a loan, had not been threatened and was not at risk. He explained that conclusion in his analysis between [25] – [39] of the claim made by the appellant. In those paragraphs the Judge identified:
a) The appellant’s inconsistent account about the amount he borrowed and his unconvincing explanation for that inconsistency ([26] – [27]);
b) The appellant’s inconsistent account about how he came to borrow the money, whether money had been repaid to the lenders and what sparked the lenders demands ([28] – [31]);
c) The fact that the appellant had not adduced supporting evidence of events in Albania in circumstances where such evidence was reasonably available to the appellant ([32]- [35]);
d) The incoherent chronology in the appellant’s account ([36] – [39]);
e) The implausibility of the appellant’s account that terms of repayment were never discussed ([40]);
f) The failure by the appellant to claim asylum on arrival in the United Kingdom or before he had been arrested and detained ([41] – [42]).
11. At [44] – [46] the Judge considered the risk to the appellant in Albania from people traffickers, even though the appellant had not advanced his case on that basis, and found that the appellant had not been forced to work in a cannabis factory in France and that he would not be at risk from traffickers in Albania.
12. The Judge then turned to consider the appellant’s human rights claim, considering first his private life in the United Kingdom. At [47] – [50] the Judge considered the appellant’s social and cultural integration in the United Kingdom. He found that rather than demonstrating an acceptance and assumption of the core values of the United Kingdom, the appellant had shown a flagrant disregard for United Kingdom laws. The Judge noted the absence of evidence of the appellant establishing relationships in the United Kingdom or involvement with society. He concluded that although the appellant has been lawfully working in the United Kingdom the appellant was not culturally and socially integrated in the United Kingdom. At [51] – [60] the Judge considered the appellant’s ability to re-integrate in Albania. The Judge noted the psychiatric evidence that had been adduced of the appellant’s anxiety and depression but found that the appellant was a physically healthy man who has been able to work in both Albania and the United Kingdom despite the diagnosis and notwithstanding the fact he had only taken prescribed medication inconsistently. The Judge found that the appellant was not currently taking medication and that the appellant’s mental health would not decline on return to Albania. The Judge concluded that the appellant, having lived nearly his whole life in Albania, worked there and maintained relationships with his family there, would not face very significant obstacles to integration in Albania.
13. The Judge then considered the appellant’s family life, finding at ([61] – [63]) that his relationship with Z, A and B engaged article 8 of the Convention and that the respondent’s decision represented an interference with that family life. The Judge considered whether the effect of the appellant’s deportation would be unduly harsh on Z. At [64] – [67] the Judge analysed the impact of the appellant’s deportation on Z were she to go to Albania with him (the “go scenario”) and at [68] the Judge analysed the impact of the appellant’s deportation on Z were she to stay in the United Kingdom without him (the “stay scenario”). The Judge found that the impact in both scenarios would not reach the threshold of being “unduly harsh”. Likewise the Judge concluded at [69] – [82] that the impact of the appellant’s deportation would not be unduly harsh on A or B in either the stay or go scenario. In the remainder of his decision the Judge balanced the public interest in the appellant’s deportation (which he identified at [83] – [92] of the decision) against the appellant’s circumstances (which he summarised at [93] – [102] of the decision) concluding at [103] – [106] that the public interest outweighed the appellant’s private and family life such that interference with that private and family was proportionate.
14. The Judge therefore dismissed the appellant’s appeal on all grounds.
The appeal to the Upper Tribunal
15. Having been refused permission to appeal by the First-tier Tribunal, the appellant renewed his application to the Upper Tribunal on four grounds which were set out at [1] – [4] of the renewed grounds under the title “submissions”. The grant of permission was not restricted and these were the grounds that Mr Badar pursued before me1. In summary they are:
i. The Judge’s conclusion that the impact of the appellant’s deportation would not be unduly harsh on Z in the go scenario was irrational given that Z has been recognised to be a refugee with a well-founded fear of persecution in Albania.
ii. The Judge’s finding that there was no evidence of the appellant doing any rehabilitative work was irrational in view of the appellant sustaining lawful employment
iii. The Judge impermissibly required the appellant to provide corroboration of his protection claim
iv. The Judge’s assessment of the best interests of A and B was legally flawed.
16. I heard helpful submissions about these four grounds of appeal from Mr Badar and Ms McKenzie for which I was grateful. I mean no disrespect by not setting out those submissions here but will instead refer to them where necessary to explain my conclusions.
The Law
17. There was no controversy about the relevant law.
18. When considering the appellant’s protection appeal on refugee grounds the question for the Judge was whether the appellant met the definition of a refugee in Article 1(A) of the 1951 Geneva Convention Relating to the Status of Refugees (“the Refugee Convention”) which is a person who ““…owing to a well founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion is outside the country of his nationality and is unable or, owing to such fear is unwilling to avail himself of the protection of that country”
19. If the appellant did not meet the definition of a refugee he would still be entitled to a grant of humanitarian protection under paragraph 339C of the respondent’s Immigration Rules (and his protection appeal would succeed on humanitarian protection grounds) if “substantial grounds have been shown for believing that [the appellant], if returned to the country of origin, would face a real risk of suffering serious harm and is unable, or unwilling to avail themselves of the protection of that country; and they are not excluded from the grant of humanitarian protection.” Further the applicant would succeed in his protection appeal on human rights ground if he established that his removal to Albania was incompatible with his right under Article 3 of the Human rights Convention not to be subjected to torture or to inhuman or degrading treatment or punishment.
20. As the parties agreed in the First-tier Tribunal the appellant’s protection appeal depended on his account being found to be reasonably likely to be true
21. When considering the appellant’s human rights claim the issue was correctly identified in the First-tier Tribunal as being whether the interference with the appellant’s article 8 Convention right to respect for his private and family life was proportionate. That right is a qualified right which must not be interfered with by a public authority ““except as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic wellbeing of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.” The crucial question in the appellant’s case was whether the interference is proportionate (“the public interest question”).
22. Part 5A of the 2002 Act provides the Tribunal with a complete code for answering the public interest question. Relevant parts of Part 5A of the 2002 Act are, section 117B(1) which identifies that the maintenance of effective immigration control is in the public interest, section 117B(4) which says that little weight should be attached to a private life or a relationship formed with a qualifying partner if they were established at a time the person is in the United Kingdom unlawfully, section 117C(1) which states that the deportation of foreign criminals is in the public interest and section 117C(2) says that the more serious the offence the greater the public interest.
23. Sub-sections 117C(4) and 117C(5) describe two exceptions to the public interest in the deportation. It is not suggested that either exception applies to the appellant but it is agreed that the extent to which the appellant meets the requirements of those exceptions is relevant to the public interest question. Exception 1, set out in s117C(4) (the private life exception) applies where an appellant (i) has been lawfully resident in the United Kingdom for most of his life; (ii) is socially and culturally integrated in the United Kingdom; and (iii) would face very significant obstacles to integration in his home country. Exception 2 in s117C(5) (the family life exception) applies where a person is in a genuine and subsisting relationship with a qualifying partner or a genuine and subsisting relationship with a qualifying child and the effect of the person’s deportation on that partner or child would be “unduly harsh”. Section 117D(1) provides that a person is a qualified partner if they are British or settled in the United Kingdom and a child is a qualifying child if they are British or have lived in the United Kingdom for a continuous period of seven years or more.
24. Subsection 117C(6) identifies that the public interest will require the deportation of a person who does not meet the requirements of the two exceptions unless there are very compelling circumstances over and above those described in the two exceptions. This subsection has been held to apply to a foreign criminal like the appellant who has been sentenced to less than four years imprisonment and who does not meet the requirements of either of the exceptions to deportation (see most recently in Lady Justice Andrews judgment in Nguyen v Secretary of State for the Home Department [2025] EWCA Civ 1452).
Analysis
Ground (i) – irrational conclusion that the “go scenario” would not be unduly harsh on Z.
25. This was the ground of appeal that concerned Judge Lodato when he granted permission to bring this appeal. Mr Badar submitted that the Judge’s conclusion that it would not be unduly harsh for Z to go to Albania with the appellant if he were deported was irrational given the fact Z has been recognised to be a refugee who is unable to avail herself of the protection of the state authorities in Albania. Ms McKenzie by contrast submitted that the grant of refugee status is not permanent, that the Judge was considering the circumstances that apply now, and that he was entitled to conclude that, as she would be returning to Albania with the appellant and her children, the impact would not be unduly harsh on Z.
26. There was no dispute about the fact that Z is Albanian or the fact that she has been recognised to be a refugee i.e. it has been acknowledged that she has a well-founded fear of persecution in Albania and that she is unable or unwilling to avail herself of the protection of the authorities in Albania from that persecution. I accept Mr Badar’s assertion that these agreed facts contradict the Judge’s finding that it would not be unduly harsh for Z to return to Albania with the appellant. By definition the grant of asylum to a person is a recognition of the fact that that person cannot safely return to their home country. In this case the fact Z has been granted asylum is a recognition of the fact that she cannot safely return to Albania. The Judge’s finding that it would not be unduly harsh for Z to return to Albania is therefore inconsistent with her status as a refugee.
27. The Judge seeks to explain that inconsistency at [66] and [67] of his decision. In those paragraphs the Judge notes that he was not presented with any evidence about why Z had been granted asylum and ultimately concludes that “it is therefore difficult to accept that she cannot return merely because she was recognised as a refugee in 2021….Notwithstanding that she was granted asylum, that fact of itself does not demonstrate on the balance of probabilities that she cannot return or that doing so would be bleak.” In my judgment that approach involved errors of law.
28. First, having noted that he had been presented with no evidence, the Judge impermissibly speculated about why Z was recognised to be a refugee when he said at [66] that “The Tribunal is obviously aware that Albanian asylum claims are often based on a risk of human trafficking. Relevant to that risk is what support network a person returning would have.” There was no evidential basis for a conclusion that the grant refugee status to Z was because of a risk of human trafficking or that it would be negated by the presence of the appellant, yet this part of the Judge’s decision suggests that this is the conclusion reached by the Judge because that is often the basis for “Albanian asylum claims”.
29. Second the Judge’s reference to finding it difficult to accept that Z would be unable to return to Albanian “merely” because she had recognised as a refugee, indicates that insufficient weight was attached to the rigorous legal process that precedes the grant of asylum and the legal finality to such a grant. That finality is demonstrated by the rigorous and detailed process that must be followed before a person’s refugee status can be revoked. That process requires the involvement of the UNHCR and a detailed examination of whether the circumstances that led to the grant of asylum no longer apply. The process requires cogent evidence that the circumstances have changed before refugee status can be revoked. Here by contrast, the Judge appears to have reached the conclusion that the conditions which led to Z being recognised as a refugee no longer apply on the basis of an entirely speculative assumption of what those circumstances were, without any detailed enquiry into the current circumstances and without cogent evidence that the factors that led to the grant of asylum no longer applied. That was in my judgment an error of law which infected the Judge’s conclusion that the “go scenario” would not be unduly harsh on Z.
30. As I raised during the hearing however, it is very clear that this error was not material to the Judge’s decision. At [17] of its decision in HA (Iraq) v Secretary of State for the Home Department [2022] UKSC 22, the Supreme Court held that the “unduly harsh test” in exception 2 would only be satisfied if the answer in relation to both the go scenario and the stay scenario is that the effect of deportation would be unduly harsh. Here, while thew Judge’s consideration of the go scenario involved an error, the Judge made an unimpeachable finding at [68] that the stay scenario would not be unduly harsh for Z. Therefore, notwithstanding the error I have identified in the Judge’s assessment of the go scenario, there is no prospect of the appellant meeting the requirements of the unduly harsh test in exception 2.
31. In response to this point Mr Badar argued that the Judge’s error in relation to the go scenario “leeched into” his finding in the stay scenario. I do not agree. The Judge’s evaluation of the stay scenario in respect of Z at [68] of his decision was plainly a stand-alone assessment, independent of his consideration of the go scenario. The Judge noted Z’s good health, her education (including the degree in finance she obtained in the United Kingdom and her record of employment. The Judge noted the state support Z is entitled to receive as a recognised refugee if she were to struggle living in the United Kingdom, but identified that “I am given no reasons why [Z] could not cope living in the UK without her partner.” The Judge then reached the entirely rational and reasonable conclusion that the effect of the appellant’s deportation would not be unduly harsh on Z in the stay scenario independently of his assessment of the go scenario.
32. Bringing this together and answering the complaint made in ground one therefore, I am satisfied that the Judge’s assessment of the impact of the appellant’s deportation on Z in the go scenario involved an error of law. I am equally satisfied however that that error has no material effect on the Judge’s decision because his separate finding that the effect of the appellant’s deportation would not be unduly harsh on Z in the stay scenario was unimpeachable. That finding meant that even if Z were a qualifying partner the appellant would not meet the requirements of exception 2 to the public interest in his deportation which was the premise upon which the Judge correctly approached his overarching proportionality assessment.
Ground (ii) - irrational finding that there was no evidence of the appellant doing any rehabilitative work
33. This ground of appeal is misconceived and without merit. It is based on a misunderstanding of what the Judge said in his decision. It is simply inaccurate to assert as the grounds do, that the Judge’s statement at [89]: “[The appellant] served most of his prison sentence through time on remand before being returned early in his sentence to Albania. There is therefore little scope for him to have done rehabilitative work and indeed no evidence that he did any” is contradicted by the Judge’s statement at [94]: “he has worked lawfully here for the last few years”. At [89] the Judge’s reference to “rehabilitative work” is plainly talking about specific work with the prison and probation service to rehabilitate the appellant following his criminal offending and is not talking about paid employment. The point made in that paragraph is not controversial and is unobjectionable. The fact the appellant was on remand (as opposed to a convicted prisoner) for most of his time in prison and the fact he was released early and deported meant that he did not undertake work with the prison or probation services to address his offending behaviour and thereby to rehabilitate himself.
34. At [94] by contrast, the Judge is referring to paid employment the appellant has had since his release from prison and while in the United Kingdom in breach of the deportation order. The Judge was therefore considering entirely different issues at [89] and at [94]. It was unquestionably rational for the Judge to note both that the appellant had not worked with the appropriate services to address his offending behaviour and rehabilitate himself and also that the appellant has had lawful paid employment while in the United Kingdom. As the Judge identifies both these separate issues were relevant to his overarching proportionality assessment and both were factored into that assessment. No error of law is disclosed by this grounds of appeal.
Ground (iii) - impermissibly required the appellant to provide corroboration of his protection claim
35. This ground of appeal asserts that the Judge failed to apply the Court of Appeal decision in MAH (Egypt) v Secretary of State for the Home Department [2023] EWCA 216 and impermissibly “required” the appellant to adduce corroborative evidence, stating that the Judge “did not merely weigh the absence of evidence but required it.” Ms Mackenzie argued that the Judge did not require corroborative evidence but instead gave a number of reasons for why he found the appellant not to be credible.
36. Mr Badar agreed that the Judge correctly identified the principles established in MAH (Egypt) at [33] of his decision in which he said:
I remind myself that corroboration is not necessary in an asylum claim. Nevertheless, the absence of supporting evidence which ought to reasonably be available to the Appellant, is something I can take account of
Mr Badar was right to make this concession as this paragraph reflects what was said at [86] of MAH (Egypt) :
“It was common ground before this Court that there is no requirement that the applicant must adduce corroborative evidence….On the other hand, the absence of corroborative evidence can, depending on the circumstances, be of some evidential value.”
37. Mr Badar argued that although the Judge identified the law correctly, in substance he did not apply it and instead at [32], [34] and [35] the Judge “required” the appellant to provide corroborative evidence. I am satisfied that there is no merit in this assertion. The appellant’s claim was not that he had to flee Albania suddenly or that he has lost all contact with the country and has no access to his belongings in the country. On the contrary the appellant’s claim was that he is in regular contact with his family members who remain in Albania and who were direct witnesses to the ill-treatment he claims to have suffered there. Likewise, as the Judge observed in [32] and [35] it was inherent from the nature of the appellant’s claim which involved him starting and running a coffee shop business, that there would have been documents generated that are relevant to the claim and that he could reasonably be expected to obtain. In these circumstances the Judge’s finding that the absence of corroborative evidence was of evidential value was unobjectionable. The Judge was not requiring corroborative evidence, instead he was legitimately noting an absence of relevant evidence in circumstances where such evidence could reasonably be expected if the appellant’s account were true.
38. It is also highly relevant that [32], [34] and [35] of the Judge’s decision represent only a very small part of the Judge’s explanation for why he categorically rejected the credibility of the appellant’s account. I set out the Judge’s reasons at (a) – (f) of [10] above, from which it is apparent that there were many other reasons for the Judge’s conclusion apart from the inference to be drawn from the failure to adduce relevant evidence. Contrary to what is said in the grounds of appeal it is very clear that the Judge weighed the absence of relevant evidence together with all the other evidence when assessing the credibility of the appellant’s account. Far from this being a case where the Judge was requiring more of the appellant than was necessary, this was a case where the Judge analysed all the evidence and gave a number of compelling reasons, including the inference to be drawn from his failure to adduce evidence which was reasonably available to him, for why he disbelieved the appellant’s account. The Judge’s assessment of the appellant’s protection claim therefore did not involve an error of law.
Ground (iv) - legally flawed assessment of the best interests of A and B
39. The grounds argue that the Judge’s assessment of the best interests of A and B was flawed because it was infected by his error in relation to the go scenario, it treated the fact that A and B are not British as adverse and it ignored evidence that the appellant is currently the primary carer while Z is the primary bread winner. Ms MacKenzie argued that the Judge’s assessment of the best interests of A and B was lawful and that the complaint is no more than a disagreement with the conclusion the Judge reached.
40. As Mr Badar accepted during the hearing, the presumption is that the statutory provisions of the 2002 Act including exception 2 and the unduly harsh test are intended to be consistent with the general principles relating to the best interests of children (see [37] of the Supreme Court decision in HA (Iraq) v Secretary of State for the Home Department [2022] UKSC 22). This is because although the best interest of the children is a primary consideration, it is not the paramount consideration in a case involving a foreign criminal. The Judge was therefore correct to approach his assessment of the best interests of the A and B through the prism of s117C(5) of the 2002 Act and asking himself whether the effect of the appellant’s deportation would be unduly harsh on A and B.
41. The Judge found at [78] that the best interests of A and B would be for them to be raised by both their parents. His finding in the same paragraph that this could happen in Albania involved an error because, for the reasons I have already discussed it was an error to find that Z could return to live in Albania without any cogent evidence that she would not be at risk there. This was not however a material error because at [81] – [82] the Judge went on to consider the alternative stay scenario of Z A and B remaining in the United Kingdom without the appellant.
42. At [81] the Judge recognised that the stay scenario is “less desirable” however he went on in the same paragraph to find that while separation from their father may not be desirable for A and B “that is a long way short of it being bleak for them”. This was a reference to the authoritative definition that harsh in this context denotes something severe or bleak and that unduly harsh raises that already elevated threshold still higher (see [41] of HA (Iraq)). The Judge had regard to the support A, B and Z would receive in the United Kingdom, the access A and B would have to free education and health care in the United Kingdom, the fact A and B could visit the appellant in Albania or third countries and could keep in touch with him via video calls and messaging services. It was in these circumstances that he concluded at [82] that it would not be unduly harsh for A ad B to remain in the United Kingdom with their mother and without their father. That conclusion was clearly one the Judge was rationally and reasonably entitled to reach.
43. The Judge’s consideration of A and B’s best interests involved therefore the correct application of the statutory structure to decision making set out in the 2002 Act. His conclusion that whilst it was not in the best interests of A and B to be separated from their father, the consequences of separation would not be unduly harsh on them was reasoned, rational and lawful. It was not flawed as suggested in the grounds. In those circumstances the Judge found that A and B’s best interests were outweighed by the public interest in the appellant’s deportation. In this way he lawfully treated the best interests of A and B as a primary consideration but not as a paramount one.
44. There is no merit to the suggestion in the grounds of appeal that the Judge’s assessment of A and B’s best interest was flawed because he had regard to the fact they are not British. The fact that they are not British was plainly relevant to the Judge’s consideration because it meant that they were not qualified children as defined in the 2002 Act. The reliance in the grounds on the Court of Appeal decision in NA (Bangladesh v Secretary of State for the Home Department [2021] EWCA Civ 953 is misplaced as that case did not involve a foreign criminal and considered section 117B(6) of the 2002 Act, a provision which specifically does not apply where the appellant is liable to deportation.
45. Overall therefore the Judge’s assessment of the best interests of the appellant’s children did not involve an error of law. The Judge was entitled to conclude that in the stay scenario the impact of the appellant’s deportation would not be unduly harsh on A and B and on that basis to conclude that the interference with the appellant’s family life that his deportation would involve was proportionate given the strong public interest in the deportation of foreign criminals.
Conclusion
46. The grounds of appeal do not identify a material error of law in the Judge’s decision. Whilst the Judge erred in his consideration of the go scenario, his findings in respect of the stay scenario meant that it was inevitable that the appellant’s appeal would fail as the public interest in his deportation outweighed the private and family life he had established in the United Kingdom.

Notice of Decision
The appellant’s appeal is dismissed.
The decision of First-tier Tribunal Judge Cartin did not involve a material error of law and shall stand.

Luke Bulpitt

Judge of the Upper Tribunal
Immigration and Asylum Chamber

20 January 2026