Tribunal decisions

The decision

IN THE UPPER TRIBUNAL
IMMIGRATION AND ASYLUM CHAMBER
Case No: UI-2025-004845

First-tier Tribunal No: HU/00065/2025

THE IMMIGRATION ACTS

Decision & Reasons Issued:
On 5th February 2026

Before

UPPER TRIBUNAL JUDGE RASTOGI

Between

The Secretary of State for the Home Department
Appellant
and

Ermir Murataj
(NO ANONYMITY ORDER MADE)
Respondent

Representation:
For the Appellant: Ms A. Nolan, Senior Home Officer Presenting Officer
For the Respondent: Ms C. Moran, Counsel instructed by Howe & Co Solicitors

Heard at Field House on 11 December 2025

DECISION AND REASONS

1. I was not invited to make an anonymity order and I have not done so. I refer to the children and their mother by their initials as the First-tier Tribunal (“FTT”) did.

2. This is the Secretary of State’s appeal against the decision of the FTT dated 8 July 2025 in which the FTT allowed Mr Murataj’s appeal against the Secretary of State’s refusal of his human rights claim. For ease of reference, I will refer to the parties as they were before the FTT, so Mr Murataj will be the appellant and the Secretary of State will be the respondent.

3. The task of the Upper Tribunal is to decide if the FTT made an error on a point of law (section 12(1) Tribunal, Courts and Enforcement Act 2007 (“the 2007 Act”). If there is no error of law, then the decision of the FTT stands in full. If there is an error of law, then I have to decide whether to set the decision aside pursuant to section 12(2)(a) of the 2007 Act. In reality, that will only be justified if the error is a material one (in other words that it would make a material difference to the outcome of the decision). An immaterial error does not matter ([10] R (Iran) v SSHD [2005] EWCA Civ 982).

4. As will be seen, the decision of the FTT does not contain an error on a point of law and does not fall to be set aside. I set out my reasoning for that below.

5. The appeal to the FTT arose in the context of the appellant as a foreign criminal. He is a national of Albania who has resided in the United Kingdom since 2007. A previous asylum claim was rejected but following a hearing before the FTT where he successfully challenged the respondent’s refusal of his human rights claim, he was granted leave to remain on 7 December 2021. The 2021 decision of the FTT was on the basis of his family life with his partner (Ms C) and her two children (K and J), all of whom are British citizens.

6. Since then, on 17 May 2024, the appellant was convicted at Lewes Crown Court of being concerned in the supply of Class A drugs and sentenced to 42 months’ imprisonment. Due to the length of the appellant's sentence, he is liable to deportation pursuant to section 3(5) of the Immigration Act 1971 and section 32 of the UK Borders Act 2007.

7. There is no right of appeal against the deportation decision, but the refusal of the appellant’s human rights claim carried a right of appeal pursuant to section 82(1) of the Nationality, Immigration and Asylum Act 2002 (“the 2002 Act”). The FTT's jurisdiction was to determine whether the removal of the appellant from the United Kingdom was unlawful because it represented a breach of the United Kingdom's obligations under section 6 of the Human Rights Act 1998.

8. Insofar as any assessment was required under Article 8, the FTT was obliged to decide to the appeal with reference to the framework contained within section 117A-D of the 2002 Act, but in particular section 117C which deals with human rights appeals for foreign criminals. Section 117 C says as follows:

“Article 8: additional considerations in cases involving foreign criminals

(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….”

9. The FTT judge who heard the appeal (“the judge”) considered the extent to which the appellant was able to meet either of the two Exceptions. Although the respondent no longer accepted that the appellant’s relationship with K and J was a genuine and subsisting parental relationship (as it was found to be in 2021), the judge found that it was [19]. In arriving at that decision the judge noted the evidence before the FTT in 2021 [20] and the judge’s findings then which represented her starting point [17]. The judge took into account the oral evidence of the appellant’s partner [21], [22], [25]; the appellant’s oral evidence [25]; a limited amount of updating evidence [23] including from K himself [24], and had regard to the fact that K had attended the hearing wanting to give evidence [21]. The judge also noted that the appellant no longer lives with the family and the reasons given for that [25].

10. The judge then moved on to decide if it was unduly harsh on K and J to remain here without the appellant [26]. It was accepted it would be unduly harsh on them to leave the UK with the appellant. The judge noted there was little updating evidence as to the position of the children at the date of the hearing [27] and the reasons for that. She once again considered the appellant and Ms C’s oral evidence [28], the previous evidence before the FTT in 2021 [29]-[32], and the updating documentary evidence [33].

11. Having done so, the judge found it was in the best interests of both children to “remain in the care of their mother and have the appellant closely involved in their lives and their upbringing” [36]. The judge reminded herself of the meaning of ‘undue harshness’ as set out in HA (Iraq) v SSHD [2022] UKSC 22 before moving on to her findings at [38] in which she said:

“I find that the circumstances relating to the children in this case are very unusual. K and J are children who have already suffered significantly in their lives due to the loss of their biological father. This has had a particular adverse impact on K. It has also impacted the ability of their mother to care for them. I accept that the appellant has been a fundamental presence in their lives for a significant period of time and has taken on the role of a father. It matters not that he is not their biological father; in all important aspects he has been their father. He has supported and cared for them physically, emotionally and financially through very challenging circumstances. I find that this is a particularly unusual scenario, where two children have already suffered the loss of a parent in traumatic circumstances. I am satisfied that the appellant has brought stability to their lives. While it is the case that the appellant is not currently living with them on a permanent basis, he still maintains a significant presence by visiting and staying over several times a week. K and J have suffered again by the appellant being removed from them while he was in prison. For him to be removed, effectively permanently, will compound that. These children are teenagers and at a difficult time in their lives under the best of circumstances. Their ability to achieve now in their education will impact their future success and chances. The fact that the children could maintain contact visa calls and possibly even by occasional visits to Albania will not provide the continuation and stability of care which they need.”

12. As the judge found the appellant able to meet Exception 2, which she noted to be a statutory “shortcut” to an Article 8 decision in favour of the appellant, she found the respondent’s decision disproportionate [39] and she allowed the appeal.

The Grounds of Appeal

13. The respondent’s grounds are contained within sub-paragraphs (a)-(f) in the grounds of appeal summarised as follows:

a) the judge provided inadequate reasons to find the unduly harsh test met and failed to resolve conflicts of fact or opinion on material matters;
b) and c) the judge failed to give adequate reasons for finding that the appellant’s relationship with Ms C, J and K subsists since his release from prison, particularly in light of the limited evidence on that issue and the absence of independent credibility findings about the appellant and Ms C’s evidence;
d) the judge failed to apply anxious scrutiny to the evidence about the appellant’s involvement with the children given the conflicting evidence about why he has not returned to the family home and the content of the OASys report as to the risk the appellant is said to pose to children;
e) the judge placed undue weight on the findings Judge Veloso made about K in 2021 without considering the up to date position and the lack of evidence on that issue at the date of the hearing before the judge, as a result of which the judge failed to given adequate reasons for her finding that deportation was unduly harsh;
f) accordingly, the judge failed to provide adequate reasons for the findings made and did not comply with the relevant test set out in HA (Iraq).

14. Judge Le Grys granted permission noting:

“The question of weight to attach to the oral and other evidence was ultimately a matter for the Judge. It was accordingly open to the Tribunal to conclude that the circumstances as found would result in harsh consequences for the children. It is, however, arguably unclear from the overall decision as to how the Tribunal has then reached the conclusion that the circumstances go beyond this and meet the elevated threshold of being “unduly” harsh, in circumstances where the Appellant’s access is acknowledged to be already restricted, there was limited up to date evidence, and the circumstances have changed since the previous appeal insomuch as the Appellant was imprisoned. Beyond noting the possible negative consequences at [38], the reasons arguably fail to adequately explain why such an outcome was considered to be greater than what is necessarily involved in the deportation of any parent.”

Discussion

15. I had the benefit of a 193 page consolidated bundle together with a skeleton argument prepared by Ms Monro. I heard submissions on behalf of both parties which I have taken into account together with all the written material before me.

16. There is considerable authority as to the restraint to be exercised by an appellate court. At [26] of Ullah v Secretary of State for the Home Department [2024] EWCA Civ 201, the following was said:

“Sections 11 and 12 TCEA 2007 Act restricts the UT's jurisdiction to errors of law. It is settled that:

(i) the FTT is a specialist fact-finding tribunal. The UT should not rush to find an error of law simply because it might have reached a different conclusion on the facts or expressed themselves differently: see AH (Sudan) v Secretary of State for the Home Department [2007] UKHL 49 [2008] 1 AC 678 at paragraph [30];

(ii) where a relevant point was not expressly mentioned by the FTT, the UT should be slow to infer that it had not been taken into account: e.g. MA (Somalia) v Secretary of State for the Home Department [2010] UKSC 49 at paragraph [45];

(iii) when it comes to the reasons given by the FTT, the UT should exercise judicial restraint and not assume that the FTT misdirected itself just because not every step in its reasoning was fully set out: see R (Jones) v First Tier Tribunal and Criminal Injuries Compensation Authority [2013] UKSC 19 at paragraph [25];

(iv) the issues for decision and the basis upon which the FTT reaches its decision on those issues may be set out directly or by inference: see UT (Sri Lanka) v The Secretary of State for the Home Department [2019] EWCA Civ 1095 at paragraph [27];

(v) judges sitting in the FTT are to be taken to be aware of the relevant authorities and to be seeking to apply them. There is no need for them to be referred to specifically, unless it was clear from their language that they had failed to do so: see AA (Nigeria) v Secretary of State for the Home Department [2020] EWCA Civ 1296 at paragraph [34];

(vi) it is of the nature of assessment that different tribunals, without illegality or irrationality, may reach different conclusions on the same case. The mere fact that one tribunal has reached what might appear to be an unusually generous view of the facts does not mean that it has made an error of law: see MM (Lebanon) v Secretary of State for the Home Department [2017] UKSC 10 at paragraph [107].”

17. This was reiterated by the Supreme Court at [72] of HA (Iraq).

18. The Practice Direction issued by the Senior President on 4 June 2024 said:

“Judges and members in the First-tier Tribunal should expect that the Upper Tribunal will approach its own decisions on appeal in accordance with the well settled principle that appellate tribunals exercise appropriate restraint when considering a challenge to a decision based on the adequacy of reasons, TC [2023] UKUT 164. As the Court of Appeal has emphasised, a realistic and reasonably benevolent approach will be taken such that decisions under appeal will be read fairly and not hypercritically[ibid].”

19. It is against this backdrop that I consider the respondent’s challenge to the FTT’s decision. The appellant’s overarching position is that the judge was entitled to make the findings that she did, that there was evidence before her to justify such findings, and that she gave adequate reasons for her finding.

20. I note the respondent falls short of claiming that the judge was not aware of the test she was applying when considering Exception 2 (although (f) of the grounds contends the judge failed to apply it appropriately). In my judgement it is clear the judge was fully aware, not just of the test she had to apply, but also that the ‘unduly harsh’ test was an elevated threshold. That much is clear [37] of the decision in which the judge set out in some detail various sections of the decision of the Supreme Court in HA (Iraq) in which the Supreme Court explained the nature of the test, and the level of harshness that needs to exist before it reaches the elevated threshold of ‘undue harshness’.

21. Furthermore, at [39], the judge also noted that Exception 2 was an ‘excepting’ condition and that it did not represent such a high threshold as the test of “very compelling circumstances” contained within section 117C(6) of the 2002 Act. There is rightly no challenge to that assertion and it patently represents a correct assessment of where the test in section 117C(3)-(5) fall in the overall section 117C framework.

22. Although the grounds of appeal take issue with the judge’s finding that the appellant’s relationship with J and K was a genuine and subsisting parental relationship (contrary to the respondent’s position at the hearing before the FTT) Ms Nolan helpfully clarified that there was no challenge to that finding. That concession affects the challenges encapsulated within section (b), (c) and (d) of the grounds (see [13] above). However, as there is a degree of overlap between that finding and the evidence underpinning the finding that the appellant’s deportation was unduly harsh, I consider the issues raised in those sections of the grounds in more detail than I perhaps otherwise would where there has been a concession.

23. At (c), the respondent claimed the judge failed to carry out her own assessment of the appellant and his partner’s credibility. When evaluating that challenge, I take note that the judge said at [17] that 2021 findings were her starting point and she can depart from them if the evidence justifies doing so. There was no challenge to this as a general proposition. The judge in 2021 considered the evidence which both the appellant and his partner gave in great detail and at para. 57 found their evidence was credible and gave reasons for that finding. In the decision under challenge, it is patently clear the judge found the appellant and Ms C to be credible because at [21] and [27] she said she accepted their evidence.

24. Furthermore, from [19] the judge said expressly that she considered whether the relationships remained subsisting at the date of the hearing and she also considered the updating evidence at [21] to [25]. In other words, the judge did not simply adopt the 2021 findings.

25. That updating evidence was the updating letter from Probation; witness statements from the appellant and Ms C; K’s letter expressing his support for the appellant in which he said he considers him to be an “essential part of my family” and which he backed up with a few examples of the practical and emotional support the appellant provided, and the appellant and Ms C’s oral evidence.

26. The respondent accepted at (c) of the grounds that the appellant and Ms C’s evidence was deserving of weight. Having taken that evidence into account, it was plainly open to the judge to decide that notwithstanding the appellant had been in prison and absent from the family home, he had telephone contact whilst in prison and the face to face contact at the family home restarted upon his release, including overnight contact. The judge was plainly entitled to find that the contact there had been during and since his imprisonment was of benefit to the children as that was the evidence before her from the appellant’s partner which she accepted.

27. The overarching challenge contained within (d) of the grounds of appeal is that it is unclear from the decision what role the appellant plays in the children’s lives. The respondent raises a number of discrete challenges within (d). She contends that the judge failed to resolve conflicts in the evidence. I find what is set out there to be a misreading of the judge’s decision. First, the respondent characterises the judge’s findings at [28] as including that it is Ms C to whom the children turn when issues arise. However, I am not clear to what the respondent refers here. I am not able to identify the part of [28] which gives rise to such a finding. In fact the position seems to be the opposite and it is the appellant who provides K with emotional support:

“Ms C gave evidence that issues do persist. For example, sometimes K will go to college on the bus if he is not stressed and other times she will take him depending on how he feels. She might meet him halfway. He is not currently taking medication even though he has been advised to because that is not something she wants for him. However he has had counselling and he is still on the waiting list with CAMHS. His EHCP has carried on into college and the college is reviewing it in order to further support his studies. Ms C described that the appellant has been instrumental in case healing process following the loss of his father. She stated that the appellant had provided emotional consistency and care and that had helped K to find some joy in his life again. She stated that she is extremely concerned about the impact unfavourable decision would have on the family particularly on K's mental health. It would be deeply destabilising.”

28. Furthermore, the respondent contends there is a conflict in the evidence at [25] as to the reason the appellant and Ms C did not resume cohabitation upon his release from prison. I do not agree. It is clear they gave the same explanation at first, confirmed by the judge who set out the appellant’s explanation and then said “Ms C also gave this as a reason”. A bit further down the judge then said “The appellant gave further explanation …” which the judge then set out. This is not a conflict in the evidence. There is one agreed explanation and then a secondary explanation which the appellant gave for not living back at the family home. There is nothing implausible about there being more than one reason for an arrangement like this. The judge was not required to resolve any conflict. This challenge is not made out.

29. The last challenge contained within (d) of the grounds, relates to the appellant having contact with the children despite having been found to pose a risk to children in the OASys report. The challenge is that the judge has not applied anxious scrutiny. The judge noted the findings of the OASys report as to the potential for risk to the children from the appellant’s offending behaviour but she noted the author of the report was particularly concerned about the risk to the appellant arising from drugs and that the risk to the children was said not to be imminent. In any case, the judge had before her the updating evidence from Probation from which it is clear that Probation is fully aware of his contact with the children. I do not find it was necessary for the judge to go behind this updating evidence.

30. It follows that I do not find any part of (d) in the grounds made out. It is clear from the judge’s findings that she found the appellant’s relationship with J and K as Ms C claimed it to be. That evidence was corroborated by the appellant, K and the Probation letter.

31. Drawing sections (b)-(d) of the grounds together, even aside from the respondent’s concession on the genuine and subsisting nature of the relationships, the grounds are not made out given all I have said above. The judge addressed the evidence before her; she had regard to the updating evidence and she expressly stated that she accepted the oral evidence. All of that informed the judge’s findings that the relationship between the appellant and the children was a genuine and subsisting parental relationship. In any event, that is no longer a finding challenged in this appeal. Accordingly, for all these reasons, I find the judge’s decision about that rationally open to her on the evidence and which she adequately reasoned. Furthermore, to the extent that evidence then informed the unduly harsh test, that was evidence to which the judge was entitled to attach weight.

32. Once the judge made the above (now unchallenged) finding about the appellant’s relationship with K and J, she then said at [26] that she was moving on to consider whether the appellant’s deportation was unduly harsh upon the children. The judge noted that required “an assessment of a future hypothetical set of circumstances”. There was no challenge to this as a general observation.

33. Ms Nolan observed that the judge failed to carry forward what the judge said at [22] about the partner’s evidence to her conclusions at [38]. I do not find that challenge made out. It is clear from what the judge said at [38] that she took into consideration what has been happening in the family since the appellant’s release from prison and that aligns with Ms C’s evidence which the judge summarised at [22] and [25] of the decision.

34. At (e) of the grounds, the respondent challenged the findings the judge made on undue harshness, primarily for lack of updating evidence as to K’s mental health. The respondent noted that the judge’s findings relied heavily on the 2021 findings, but without updating evidence or evidence to support Ms C’s updating evidence. The respondent contended that the evidence that was available to the judge was insufficient to find the test met and was speculative.

35. On the challenge of speculation, I note what the judge said at [27] when discussing the absence of updating evidence from professionals about K. She noted his explanation as to why there was none (late change of representative), noted it would have assisted her, but then said “I consider the appeal on the basis of the evidence before me. I heard evidence from the appellant and the witness, as set out below, which I accept”. It is plain in that context that the judge did not speculate about what the evidence would have been had it been before her, she made her decision based on the evidence which was before her.

36. As to the part of (e) which challenged the extent to which the judge relied on the 2021 findings, I do not find that made out. The respondent argued that the evidence then available was not reliable at the date of the hearing before the judge. However, that misreads the judge’s decision. I have already decided that when examining the relationship between the appellant and the children, the judge did not base her decision solely on the 2021 findings. That applies equally to the updating position as to K’s mental health. It is clear from what the judge said at [28] that the oral evidence was that K’s issues persist and that he is still involved with the mental health services and still is subject to an EHCP. At [29] to [32] the judge referred back to the evidence of these matters at the 2021 hearing. Here, I find the judge was setting out the background and context for the “issues” which K still has as referred to at [28]. Having done that, the judge made her findings about what was in the children’s best interests [36] and that involved having the appellant closely involved in their lives. In any event, the respondent no longer challenges the judge’s finding about the relationship. The judge’s finding about what is in the children’s best interests is consistent with the finding that the appellant has a genuine and subsisting parental relationship with the children and was a decision rationally available to the judge on the evidence before her and adequately reasoned when the decision is read as a whole.

37. Crucially, the judge then returned to the test in HA (Iraq) and noted again what was required, namely harshness over and above the harshness ordinarily involved in the deportation of a parent [37]. From this I conclude the judge was keenly aware of the test she had to apply.

38. I am satisfied that throughout the decision and, particularly at [38], the judge was at pains to set out the very unusual factual situation of this family’s situation. She addressed her mind to the 2021 findings and the evidence of the position since then and at the date of the hearing. She accepted the evidence that was before her and set out in some detail what it was [21]-[25]. She then explained at [38] why the circumstances for this family were “very unusual” and she set out the important role the appellant played and continues to play in the lives of the children. She addressed why remote contact from Albania would not suffice. Although the respondent focused on the position at the date of the hearing, that fails to acknowledge that the position as at that date has been informed by what had gone before it.

39. In my judgement it is plain from [38] of the decision and the paragraphs that came before it, those factors which the judge decided distinguished this case and rendered the appellant’s deportation unduly harsh. I am entirely satisfied that the judge’s use of the phrase “very unusual” was deliberate and represented why this family’s position was such that the impact of deportation upon them was over and above the impact deportation inevitably has upon a family.

40. Drawing all of the above together, this is a judge who applied the correct law and who was very clear about the test she needed to apply. I have not found there to be any discrete errors in the judge’s decision and overall neither do I find the final decision she made to be infected by legal error. None of the grounds are made out. The judge made a decision which was rationally open to her on the available evidence and which she adequately reasoned.

Notice of Decision

The appeal is dismissed and the decision of the First-tier Tribunal stands.

SJ Rastogi
Judge of the Upper Tribunal
Immigration and Asylum Chamber

30 January 2026