Tribunal decisions

The decision

IN THE UPPER TRIBUNAL
IMMIGRATION AND ASYLUM CHAMBER Case No: UI-2025-004961
First-tier Tribunal No: HU/00610/2025

THE IMMIGRATION ACTS

Decision & Reasons Issued:
On 12th March 2026

Before

UPPER TRIBUNAL JUDGE LODATO

Between

ZACHARIASZ KUBIAK
Appellant
and

SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: Mr Boyd, counsel
For the Respondent: Ms Blackburn, Senior Presenting Officer

Heard at Phoenix House (Bradford) on 20 February 2026

DECISION AND REASONS

Introduction and Background

1. The appellant appeals with permission against the decision, dated 24 July 2025, of a judge of the First-tier Tribunal Judge (‘the judge’) to dismiss the appeal on human rights grounds.

2. The appeal to the First-tier Tribunal (‘FtT’) arose in the context of deportation proceedings because the appellant was convicted of causing serious injury by dangerous driving while significantly over the legal alcohol limit. The judge determined that although the appellant enjoyed a genuine and subsisting parental relationship with his British daughter and a close family life with his wife and adult daughter, the evidence did not establish that deportation would result in consequences meeting the “unduly harsh” threshold under section 117C(5) of the Nationality, Immigration and Asylum Act 2002. The judge found that the child’s best interests, while a primary consideration, did not outweigh the strong public interest in deportation, and that neither scenario—the child accompanying her father to Poland, nor remaining in the UK without him—crossed the statutory threshold.

Appeal to the Upper Tribunal

3. The appellant applied for permission to appeal in reliance on prolix grounds. A judge of the Upper Tribunal granted permission but directed the appellant’s representatives to articulate the grounds in no more than two sides of A4. The reframed grounds may be summarised in the following way:

• Grounds 1 & 2 – The judge misapplied the ‘unduly harsh’ statutory test by failing to pay due regard to the child’s best interests and the likely impact on her as a result of her father’s deportation.

• Ground 3 – The judge failed to meaningfully engage with independent evidence going to the appellant’s risk of reoffending and the impact of deportation on the child.

• Ground 4 – The judge failed to attach any, or appropriate, weight to relevant factors to arrive at a distorted conclusion in the balancing exercise he was required to undertake.

4. At the error of law hearing, I heard oral submissions from both parties. I address any submissions of significance in the discussion section below.

Discussion

Ground 1 & 2

5. I have grouped grounds 1 and 2 together because, as acknowledged at [3] of the reframed grounds of appeal, various grounds, and in my view these two arguments, involve a substantial degree of overlap.

6. It is important not to lose sight of the essential analytical task the judge had to undertake in deciding the appellant’s appeal on Article 8 human rights grounds. His appeal could only succeed if he established that his deportation would result in an unduly harsh effect on his qualifying child and/or wife, or that there were very compelling circumstances over and above the statutory exceptions. Much of the focus of the arguments advanced on the appellant’s behalf, both in writing and in the hearing before me, was directed to whether the judge had taken sufficient account of the child’s best interests if she were required to endure the consequences of her father being deported to Poland. While a child’s best interests naturally inform any assessment of the unduly harsh threshold, it should not be confused to be the applicable test. A medium level offender such as this appellant must do more than merely establish that his deportation would not be in the best interests of a qualifying child. It seems to me that this tends to explain why the judge did not frame his consideration of this important question by overly referring to the child’s best interests. His focus was lawfully and properly on whether deportation would bring about unduly harsh implications for the child.

7. Seen against the appropriate statutory framework, I am in no doubt that the judge properly assessed whether it would be unduly harsh to expect the child to return to Poland with both parents. The ‘go’ scenario was realistically found by the judge to be the most likely outcome on the facts. In his consideration of the second statutory exception under s.117C(5) of the 2002 Act, the judge begins by recognising that the best interests of the child are a primary factor in any balancing exercise ([25]). He proceeded to set out, at [26], her background and the roots she has established in the UK since she was born here 6 years before the hearing. He addressed the reality that there would be no official barriers to her relocating to Poland with her family who would both be able to work ([30]). Her ability to communicate in Polish was considered (at [27]-[28]).

8. Importantly, the judge observed, at [29], that she had been “greatly affected” by the separation from her father while he was imprisoned and how she would be “disturbed” by being required to live in Poland. Next, the judge turned his attention to the report of a social worker, Mr Darko. His overall conclusion that a family move to Poland would have an “adverse effect” was summarised briefly, at [31], before concerns were expressed, at [32]-[33], about a dubious analysis that separation might result in physical damage to a child’s brain. These threads were drawn together at [34] where it was recorded that the whole family did not wish to move to Poland and were concerned and worried about their prospects if they were forced to do so.

9. At [35], the ‘stay’ scenario was explored by the judge who noted family and practical arrangements which might assist. The overall position was expressed in this way, at [37]:

It is in the best interests of [the child] to remain in the care of both parents. That can be achieved either in the United Kingdom or in Poland. As all the members of the family would be happier if they remained in the United Kingdom it would be in the best interests of [the child] if the appellant were allowed to remain the United Kingdom. There would be little to choose however between the family living in Poland or in the United Kingdom.

10. When the overall analysis is viewed within its proper analytical framework of the ‘unduly harsh’ barometer set out at s.117C(5) of the statutory test, it can be seen that the judge was mindful of all relevant factors, including the best interests of the child (which were again referred to at [44]). As the judge himself observed at [41], the unduly harsh test connotes something more than the best interests of the child in staying in the UK without their deported parent or leaving the UK with him.

11. At the error of law hearing, I expressed reservations as to whether paragraph [42] of the judge’s analysis imposed an unlawful consideration of the seriousness of the appellant’s offending as a counterweight to the absolute quality of the unduly harsh threshold. The judge said this:

The underlying question I have to consider is whether the harshness which the deportation of an appellant will cause for a partner or child is of a sufficiently elevated degree to outweigh the strong public interest in the deportation of foreign criminals.

12. On careful analysis of the overall decision, I am inclined to agree with Ms Blackburn’s submission that it would not be fair to read this extract in isolation and that the judge has merely expressed himself loosely at this point of his decision in placing this absolute statutory exception in its proper place within the overall statutory scheme as reflected by s.117C(1). Over the course of 25 paragraphs under the heading of “Exception 2”, the reference to the appellant’s crimes at [42] is the only occasion on which the criminal offending come into view. The remainder of the detailed analysis is focussed on the applicable statutory test and is not balanced against the seriousness of the appellant’s offending.

13. On a fair reading of the judge’s decision, a child-centric approach was adopted. This can be seen at [44] where the judge assessed what would be likely to unfold in the most realistic scenario of the child returning to Poland with both parents to join an extended family network there. The judge legitimately drew, at [45], on the experience of the child’s now-adult sister who relocated to Poland with her father when she was a child. This was a relevant factor because it showed that the appellant had achieved a successful reintegration for one of his children in the past when she was a minor. I do not accept the appellant’s submission that the judge was wrong to have considered, at [46]-[47], the economic status of Poland in assessing the unduly harsh test. Just as it would be entirely appropriate for a judge to consider the poor economic conditions of a country when assessing how a child would fare in that country, it is equally appropriate to consider relative prosperity. The conditions in the place where it is said that a child should move is a manifestly relevant factor to be considered.

14. Standing back and assessing the overall decision fairly, I am left in no doubt that the judge lawfully assessed whether it would be unduly harsh for this child to remain in the UK without her father or, the more likely outcome, to relocate to Poland with both parents. Her best interests were fully considered.

Ground 3

15. The challenges under this ground of appeal are that the judge did not do justice to weighty independent evidence in the shape of Mr Darko’s report and the OASys report which dealt with the low ongoing risk posed by the appellant. The appellant has not shown that the judge did not have adequate and lawful regard to this evidence. I have already referred to the judge’s treatment of Mr Darko’s report under grounds 1 and 2 above. The judge was more than entitled to express grave concerns about the cogency of his conclusions given the highly dubious suggestion that deportation might have a traumatic and physically injurious effect on the child’s brain. I am also inclined to agree with Ms Blackburn’s submission that the judicial finding must be seen against the overall judicial analysis where it was accepted that it was demonstrably in the child’s best interests to remain with both parents upon her father’s deportation to Poland. Separation of this family was found to be unlikely on the evidence considered by the judge and this naturally deprived the report of much of its force to the extent that it assessed the prospects for the child on being separated from her father. It cannot be sensibly argued that the judge did not consider Mr Darko’s report, the judge simply attached greater weight to other factors and evidence which tended to suggest that there would not be an unduly harsh effect on the child. It is fair to say that judge might have said more about this report, but I must exercise caution not to elevate the absence of a line-by-line analysis of all of the evidence to an error of law. The reasons expressed by the judge in finding that the impact on the child would not be unduly harsh are clear as are the principles on which these conclusions were reached.

16. I was equally unimpressed by the suggestion that, as a matter of law, the judge was required to say more about the OASys report. Again, I find myself to be in agreement with Ms Blackburn’s submissions to the effect that it is difficult to see what such additional analysis might add in circumstances where the judge plainly found that the appellant was remorseful, had a previously unblemished character before he committed serious criminal offences and was not likely to reoffend (see paragraphs [16] & [22]-[23]). The overall position was expressed in the following terms at [55] where the judge considered the overall balance under Article 8:

I accept that this is a decent, respectable, hard-working family. I accept that the appellant had no previous convictions before this offence. I accept that he is unlikely to repeat his behaviour. He is appalled by the consequences that it is [sic] had for his wife and children. Little weight can be put upon the low risk of reoffending. People are expected to behave themselves.

17. In deciding whether the judge approached the rehabilitation and risk questions lawfully, it is worth reminding oneself what the Supreme Court held on the topic, at [56]-[58] of their judgment in HA (Iraq v SSHD [2022] UKSC 22:

[56] In Binbuga v Secretary of State for the Home Department [2019] EWCA Civ 551; [2019] Imm AR 1026 at para 84 I cited and agreed with that passage. The Secretary of State submitted that this approach was correct and should be endorsed as, whilst it acknowledges that rehabilitation can be relevant, in terms of weight it will generally be of little or no material assistance to someone seeking to overcome the high hurdle of the very compelling circumstances test.

[57] In the RA appeal, the Court of Appeal, while agreeing that rehabilitation will rarely be of great weight, did not agree with the statement that "rehabilitation will … normally do no more than show that the individual has returned to the place where society expects him … to be". They considered that it did not properly reflect the reason why rehabilitation is in principle relevant, namely that it goes to reduce (one element in) the weight of the public interest in deportation which forms one side of the proportionality balance.

[58] Given that the weight to be given to any relevant factor in the proportionality assessment will be a matter for the fact finding tribunal, no definitive statement can be made as to what amount of weight should or should not be given to any particular factor. It will necessarily depend on the facts and circumstances of the case. I do not, however, consider that there is any great difference between what was stated in Binbuga and by the Court of Appeal in this case. 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."

18. Put simply, there is no discernible tension between the statements of principle in HA (Iraq) and how the judge approached the question of risk. He was entitled to attach little weight to the prospect of rehabilitation given how recently the appellant was sentenced for his offending and the limited opportunity he has had to prove himself as a reformed character. The highest his case could be put was that there was a low risk of reoffending, something which the judge readily accepted. The judge was not, however, required to attach more than minimal weight to this feature of the overall evidential picture. It cannot be said that it was left out of account and the judge was not required to attach any more weight than he did.

Ground 4

19. The grounds acknowledge that the fourth head of challenge draws the previously articulated complaints together to suggest that the judge came to the wrong conclusion on whether very compelling circumstances existed to outweigh the strong public interests in the appellant’s deportation. This composite ground resonates with a mere disagreement with the weight attached by the judge to the various factors which were in play and lawfully considered in the judicial analysis. I am unable to identify anything approaching an error of law in the judge’s consideration of this appeal. The appellant may well disagree with the conclusions which were reached across the span of judicial fact-finding, but it is abundantly clear why he lost his appeal on the facts as found by the judge.

Notice of Decision

The decision did not involve an error of law and I dismiss the appeal.

P Lodato

Judge of the Upper Tribunal
Immigration and Asylum Chamber

11 March 2026