Tribunal decisions

The decision

IN THE UPPER TRIBUNAL
IMMIGRATION AND ASYLUM CHAMBER
Case No: UI-2025-005196

First-tier Tribunal No: HU/08281/2020

THE IMMIGRATION ACTS

Decision & Reasons Issued:

On 19th of January 2026

Before

UPPER TRIBUNAL JUDGE KHAN

Between

SECRETARY OF STATE FOR THE HOME DEPARTMENT
Appellant
and

MR B. K. R.
(ANONYMITY ORDER MADE)
Respondent

Representation:
For the Appellant: Mr Kevin Ojo, Senior Home Office Presenting Officer
For the Respondent: Mr Jonathan Martin of Counsel instructed by Expert Law Ltd

Heard at Field House on 5 January 2026

Order Regarding Anonymity

Pursuant to rule 14 of the Tribunal Procedure (Upper Tribunal) Rules 2008, the appellant, Mr B. K.R (as he was before the First-tier Tribunal) is 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. Failure to comply with this order could amount to a contempt of court.

DECISION AND REASONS
Introduction
1. This is a decision of the Upper Tribunal (Immigration and Asylum Chamber) (‘the Upper Tribunal’). The Upper Tribunal is an independent decision-making body with powers given to it by an Act of Parliament. This decision is made in the context of the Upper Tribunal’s role in considering statutory appeals from decisions made by the First-tier Tribunal (Immigration and Asylum Chamber) (‘the First-tier Tribunal’).
2. For convenience, I will refer to the parties as they were designated before the First-tier Tribunal.
3. The respondent, the Secretary of State for the Home Department (‘SSHD’), appeals with permission against a decision of Judge of the First-tier Tribunal Davison (“the judge”) promulgated on 8 October 2025 allowing the appellant’s appeal against deportation on the grounds of ‘very compelling circumstances’ under Section 117C(6) Nationality, Immigration and Asylum Act 2002 (‘NIAA 2002’).
Background
4. The appellant is a national of Kenya born on 21 October 1995. He is the son of a British national mother. He grew up in Kenya eventually arriving in the UK on 11 September 2011 aged 15 and was reunited with his mother. He briefly returned to Kenya in 2019 to attend the funeral of his great grandmother whereupon he found out that he had been conceived when his mother was raped. On return to the UK, the appellant’s relationship with his ex-partner suffered and allegations were made regarding abuse of their daughter, but no criminal charges were brought.
5. On 11 November 2019, the appellant pleaded guilty to the index offence of arson being reckless as to whether life would be in danger, stalking and harassment. He was sentenced to 3 years and 8 months imprisonment. As result of his conviction, the respondent started deportation proceedings on 17 July 2020.
6. The appellant made representations on 24 July 2020 and 5 August 2020 against the proposed deportation based on human rights grounds. His representations were refused by the respondent in a decision dated 23 October 2020. The appellant appealed to the First-tier Tribunal against the deportation order and his appeal was allowed by First-tier Tribunal Judge Clarke in a decision promulgated on 21 November 2023. However, following a successful challenge made by the respondent to the lawfulness of the First-tier Tribunal’s decision, the matter was remitted for a de novo hearing. The remitted hearing came before First-tier Tribunal Judge Davison who allowed the appellant’s appeal under Article 8 ECHR having concluded that there were very compelling circumstances in the appellant’s case. This is the decision of the First-tier Tribunal that is currently under appeal.
7. The appellant maintains that he cannot be deported because:
a. there are significant obstacles to his relocation to Kenya and reintegration and that deportation would violate his rights under Article 8 ECHR.

Relevant Law
8. This appeal turns on whether the judge correctly applied Section 117C of the Nationality, Immigration and Asylum Act 2002 (‘NIAA 2002’). Given the significance of this provision to the appeal, I set it out in full. Section 117C provides:
117C 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.
(7) The considerations in subsections (1) to (6) are to be taken into account where a court or tribunal is considering a decision to deport a foreign criminal only to the extent that the reason for the decision was the offence or offences for which the criminal has been convicted.”
9. Where a foreign criminal has been sentenced to imprisonment for less than four years, the effect of section 117C(3) is that deportation of that person will not be justified if either of the Exceptions stipulated in subsections (4) and (5) applies. See para. 17 of HA (Iraq) v Secretary of State for the Home Department [2020] EWCA Civ 1176. However, this is a case where it was accepted by the appellant that the exceptions in s.117C NIAA 2002 could not be met in full and therefore the test of ‘very compelling circumstances’ needed to be addressed under s.117C(6).
Decision of the First-tier Tribunal
10. The judge’s findings are set out at paragraphs [30]-[57] of the determination.
11. At [40]-[41] the judge found that the appellant was in a relationship with his girlfriend in the UK but that they did not co-habit and accordingly she did not meet the definition of a partner in the exceptions to the Immigration Rules. In relation to his young daughter, although the appellant had indirect contact with her he had not yet built up a genuine and subsisting parental relationship with her. The judge noted that if he were wrong in that conclusion, he would find that it would not be unduly harsh for the appellant to be deported and for his daughter to remain in the UK with her mother, her sole carer at present.
12. At [42] the judge found the appellant was culturally and socially integrated into the UK having arrived aged 15 and was now 30 years old. He had attended school, formed relationships, and had a daughter in the UK.
13. At [44]-[46] the judge found that the medication taken by the appellant for his mental health was available in Kenya and that he had an extensive support network around him in the UK. Although there were mental health services available in Kenya, they were different to those in the UK.
14. At [52]-[55] the judge considered the factors that weighed in favour of deportation, noting that the offence committed was particularly serious and therefore significant weight had to be attached to the public interest in deportation.
15. At [47]-[49] the judge found that the appellant would have no family support network on return to Kenya. The reality would be that if returned, he would need to establish himself alone and given his fragile mental health, he would be unable to access the structures even if available to him. For those reasons, the judge concluded there were very significant obstacles to the appellant’s possible reintegration to society in Kenya.
16. At [52]-[55] the judge considered the factors that weighed in favour of deportation noting that the offence was serious and therefore significant weight attached to the public interest in deportation. He found that the ‘very compelling circumstances’ in the case was the risk to the appellant that should he be returned to Kenya without a proper and extensive support structure around him he would be at a very real risk of destitution.
17. At [56] the judge found that the medical evidence did not establish that the appellant was presently a suicide risk and that his mental health was stable due to the support structure in place and the treatment that he received. He concluded that if the appellant were returned there was a very real risk of a rapid and irreversible decline in his mental health which would cause harm to the appellant; at worst he could take his own life.
18. Permission to appeal the decision of the First-tier Tribunal was granted by First-tier Judge Chinweze dated 30 October 2025.
19. The First-tier Tribunal made an anonymity direction on 21 November 2023 and that direction is maintained.
20. The matter now comes before me to determine whether the First-tier Tribunal erred in law, and if so whether any such error was material and whether the decision of the First-tier Tribunal should be set aside.
Grounds of Appeal
21. The respondent’s grounds submit that Judge Davison made a material error of law in failing to apply, in substance, the relevant threshold demanded to satisfy the very compelling circumstances test which requires something over and above the normal exceptions 1 & 2.
22. In this regard, the respondent relies on the various aspects of the decision:
a. there are no significant or distinguishable differences shown in the conclusions reached under very compelling circumstances to the findings made under significant obstacles in the assessment of the private life exception in that without the present support structure he relies on presently, he will suffer significant obstacles to integration on return [45] & [47] - [49].
b. having concluded that the appellant is at risk of suffering a decline in his mental health without a support network which would lead him to becoming destitute, the judge failed to consider whether the appellant would be eligible for assistance under the Facilitated Returns Scheme which incorporates a reintegration package worth £ 1500 and assistance from the IOM on return. He would also have medical escorts assisting him during the return journey.
c. the reasoning fails to explain what particular factors make the appellant’s situation ‘especially compelling’ or ‘would prevent or seriously inhibit this respondent from integrating (as opposed to making integration difficult or challenging)’ See: SSHD v Gibson Bennett Ackom (aka Bonsu) (CA -2024-001259).
d. The findings that the appellant is not at risk of suicide, can work, and that his mental health is stable are inconsistent with the conclusion that should he be returned there is a very real risk of a rapid and irreversible decline in his mental health…...’ The judge has applied the incorrect test in making the findings in line with established jurisprudence.
The relevant Law
23. In respect of the relevant law, I recall the judgement of Underhill LJ in Yalcin v SSHD [2024] ECWA Civ 74 which addressed the question of what is meant by ‘very compelling circumstances over and above those described in Exceptions 1 & 2’. Underhill LJ at [57] stated:
‘NA (Pakistan) thus establishes that the effect of the over and above requirement is that, in a case where the ‘very compelling circumstances’ on which a claimant relies under section 117C(6) include an Exception-specified circumstance (‘an Exception-overlap case’), it is necessary that there be something substantially more than the minimum that would be necessary to qualify for the relevant Exception under (4) or (5); as Jackson LJ puts it at para 29, the article 8 case must be ‘especially strong’.
‘That higher threshold may be reached either because the circumstances in question is present to a degree which is ‘well beyond’ what would be sufficient to establish a ‘bare case’ or …..because it is complemented by other relevant circumstances, or because of a combination of both’. I will refer to those considerations, of whatever kind, as ‘something more’. To take a concrete example, if the Exception-related circumstance is the impact of deportation on a child (Exception 2) the something more will have to be either that the undue harshness would be of an elevated degree (‘unduly unduly harsh’?) or that it was complemented by another factor or factors … to a sufficient extent to meet the higher the higher threshold, or as I have said, a combination of the two.’
‘There is nothing at all surprising about this, at least in the case of a serious offender. Even if the over and above requirement were not explicit, it is my view inherent in the structure of section 117C that a serious offender will need to meet a higher threshold than a medium offender in order to satisfy the test in subsection (6)’.
In Kapikanya v SSHD [2025] EWCA Civ 987, Bean LJ at {43] stated:
‘The judgement of Underhill LJ in Yalcin demonstrates that in order to satisfy section 117C(6) ‘something more’ is required than under Exceptions 1 or Exception 2. Underhill LJ envisages two types of case. The first where deportation would have what in a convenient shorthand phrase he describes as an ‘unduly, unduly harsh effect’ on a qualified child or partner. The second is where the appellant can point to the combination of an unduly harsh effect on a qualifying child or partner and some other factor amounting to very compelling circumstances. Underhill LJ emphasises that as serious offender will have to surmount a higher threshold than a medium offender’.
Decision and Reasons
24. I have considered the First-tier Tribunal decision (‘FtT’), the documentation that was before the FtT, the grounds of appeal, and the submissions made at the hearing, before coming to a decision in this appeal. It is not necessary to summarise the oral submissions because they are a matter of record, but I will refer to any relevant arguments in the decision.
25. I bear in mind that judicial caution and restraint is required when considering whether to set aside a decision of a specialist tribunal. In particular, judges of a specialist tribunal are best placed to make factual findings: see HA (Iraq) v SSHD [2022] UKSC 22. Appellate courts should not rush to find misdirections simply because they might have reached a different conclusion on the facts or expressed themselves differently: see AH (Sudan) v SSHD [2007] UKHL 49 and KM v SSHD [2021] EWCA Civ 693. Where a relevant point is not expressly mentioned by the tribunal, the court should be slow to infer that it has not been taken into account: see MA (Somalia) v SSHD [2020] UKSC 49. When it comes to the reasons given by the tribunal, the court should exercise judicial restraint and should not assume that the tribunal misdirected itself just because not every step in its reasoning is fully set out: see R (Jones) v FTT (SEC) [2013] UKSC 19.
26. At the core of the respondent’s grounds of appeal is the assertion that the FtT made a material error of law in failing to apply, in substance, the relevant statutory threshold demanded to satisfy the very compelling circumstances test which requires something over and above Exceptions 1 & 2. In this context, the respondent argues that the FtT failed to provide adequate reasoning to explain what particular factors made the appellant’s situation especially compelling to found that the statutory threshold of very compelling circumstances over and above those described in Exceptions 1 & 2 at section 117C(6) NIAA 2002 had been met, especially when weighed against the very strong public interest in deportation.
27. In contrast, the appellant argues there is no error of law and that the grounds of appeal amount to nothing more than a disagreement with the judge’s decision.
28. Turning to review the FtT decision, although the appellant acknowledged that he could not succeed through reliance alone on the exceptions to deportation in sections 117C(4)-(5), it is clear that the FtT properly went through the exceptions in accordance with the well settled practice that the exceptions ‘may provide a helpful basis on which as assessment can be made whether there are very compelling circumstances over and above those described in Exceptions 1 & 2’: See NA (Pakistan) v SSHD & Ors [2016] EWCA Civ 662 at [37].
29. At [44]-[49], the FtT considered the question of whether the appellant would face very significant obstacles to integration (Exception 1(c)) in Kenya, the country to which he is proposed to be deported. In this context, the FtT discussed the appellant’s mental health issues and found that the medication which he currently takes would be available in Kenya, and that mental health services were also available, although different to services in the UK.
30. The FtT also found that the mental health services in the UK having recognised the appellant’s medical issues had ‘placed a great deal of support around him’ which included a weekly mental health navigator, a peer mentor, a psychiatrist on a frequent basis, and access to a GP and therapy.
31. At [47] the FtT Judge stated ‘I find that the appellant has no family support network to return to in Kenya. All the aged relatives that he previously resided with are now deceased. The appellant’s half sister still resides in Kenya but it was her husband who abused the appellant. I do not find this is a viable avenue for support.’
32. In light of these findings, the FtT concluded at [48] that ‘the reality for this appellant is that if he were to be returned to Kenya, he would need to establish himself alone. Given the fragile nature of the appellant’s mental health, I find that the structures, even if available, would not be accessed by the appellant.’ At [49] the FtT concluded ‘For these reasons, I find that there are significant obstacles to the appellant’s reintegration to society in Kenya.’ I note that respondent has not challenged these findings in her grounds of appeal regarding the appellant’s mental health issues or extensive support currently around him. I will return to these issues later.
33. Having established that the exceptions could not be met in full, it is clear from the decision at [29] that the FtT was aware that the critical issue pursuant to section 117C(6) NIAA 2002 was whether there were very compelling circumstances over and above the exceptions to deportation. At [51]-[53] the FtT properly directed itself to paragraph 51 of HA (Iraq) [2022] UKSC 22. This states when considering whether there are compelling circumstances over and above Exceptions 1 and 2, all the relevant circumstances of the case will be considered and weighed against the very strong public interest in deportation. The FtT also properly directed itself to the decision of SSHD v Ackom (aka Bonsu) [2025] EWCA Civ 537 regarding obstacles to integration where the returning individual is unfamiliar with the destination country and has no friends or family there.
34. At [53]-[55], the FtT turned to the factors listed in HA (Iraq) to be considered within the framework for conducting an Article 8 proportionality exercise. The FtT properly found that the nature and seriousness of the appellant’s criminal behaviour weighed in favour of deportation and noted that given the particularly serious nature of the offending significant weight attached to the public interest in deportation. Up to this point no objection is taken by the respondent to the FtT’s reasoning.
35. The respondent’s grounds primarily turn on the FtT’s findings at [55] where the judge states ’I find the compelling circumstances in this case are the support structure that is needed by the appellant. I find that it would not exist if he was to be returned to Kenya…….the very compelling circumstance is the risk to the appellant that should he be returned to Kenya without a proper and extensive support structure around him I find that he would be at very real risk of destitution.’
36. The respondent submits that that there are no significant or distinguishable differences shown between the conclusions reached under very compelling circumstances and those relied upon to show that the appellant will face very significant obstacles to integration at [45]. I agree with the respondent’s submission.
37. It is clear from paragraphs [47]-[48] that the FtT findings concerning very significant obstacles to integration related to the undisputed fact that the appellant if returned would need to establish himself alone because he does not have any family or friends in Kenya who could assist him and, due to his fragile mental health, he would be unable to access any ‘structures’. However, it is unclear as to what ‘structures’ are being referred to.
38. The FtT’s findings at [55] covers the same ground in so far that it relates again to the absence any ‘support structure’ that is needed by the appellant. However, what is unclear about paragraph [55] is whether the reference to ‘support structure’ applies to both the absence of family/friends and the extensive mental health support network in the UK, or both. Additionally, the FtT at [55] refers to a real risk of destitution if the appellant is returned to Kenya without a proper and extensive support structure around him. Again, it is unclear to what the FtT meant by ‘extensive support structure’ given that it had already accepted at [46] that Kenya has available mental health services.
39. The FtT’s decision as I have alluded to is confusing and inadequately reasoned for the following reasons:
40. Firstly, as I have indicated it is unclear at [55] what the FtT meant by a ‘support structure’ and/or a ‘proper and extensive support structure around him’. What are the components that make up this ‘support structure’; family and friends and/or a mental health services support network?
41. Secondly, if the FtT is referring only to the absence of family and friends in Kenya as a ‘support structure’, it should have properly applied the law in the decision of SSHD v Ackom [2025] EWCA Civ 537. In this regard, the FtT should have asked itself why a reasonably fit educated single man who has previously lived in Kenya until the age of 15 years, and who would have his medication and mental health services available to support his mental health, would be precluded from integration, simply on account of a lack of friends or family? The FtT has failed to demonstrate that it turned its mind to the relevant question of whether with support from the International Organisation for Migration (IOM) or from local community mental health groups the appellant would have the opportunity to reintegrate himself in Kenya. The FtT decision makes no reference to any evidence in reaching its findings on this point which appears to be speculative. In this regard, I also recall the contents of the letter from Dr Angwen Omira from the Mathari National Teaching and Referral Hospital dated 18/11 2024 which was before the FtT. However, it is unclear to me how its contents supports the FtT’s conclusions.
42. It is not enough to cite the law; a Tribunal must also apply it. The failure to properly apply the Ackom decision to identify whether the obstacles identified would prevent or seriously inhibit the respondent from integrating was a material error of law. The FtT determined that significant weight should be placed on this matter but has provided inadequate reasoning to justify its findings.
43. Thirdly, the FtT at [55] states that ‘without a proper and extensive support structure around him, I find he would be at a very real risk of destitution.’ This is an additional reason provided under S.117C(6) which was not mentioned when the FtT considered very significant obstacles to integration. As such, if it had been adequately reasoned, it may well have constituted a particular factor making the appellant’s situation especially compelling to find that the statutory threshold of very compelling circumstances over and above those described in Exceptions 1 & 2 at section 117C(6) NIAA 2002 had been met: See Underhill LJ in Yalcin at [57]. However, as it stands the FtT’s reference to destitution is little more than an unreasoned assumption. There is no evidence cited to support the finding of likely destitution.
44. Fourthly, (and linked to the foregoing), the FtT failed to demonstrate that it addressed it mind to whether the appellant’s family in the UK who currently financially support him would be willing and able to continue to do so in Kenya. In this regard, paragraph 3.6 of the OASYs report referred to financial support provided by his family to pay the rent on his flat in London. Mr Martin indicated that by the date of the FtT hearing, the appellant’s mother had stopped working two jobs on account of illness. As a result, family finances were reduced, but some assistance was still available but not at the same level as before.
45. Likewise, the FtT failed to consider whether the appellant would be eligible for assistance under the Facilitated Returns Scheme (FRS) which incorporates a reintegration package worth £1500 and assistance from the IOM. Mr Martin informed the Tribunal that this was not an automatic process which I accept, but it was a material error in law for the FtT not to adequately reason its finding regarding likely destitution.
46. Finally, the respondent submits that the FtT misdirected itself in law as to the correct test in respect of its findings at [56] where the judge stated ‘The medical evidence does not establish that the appellant is a present suicide risk. He has made unsuccessful attempts in the past. His mental health is presently more stable. I find this is both down to the support structure he has in place and the treatment he has and continues, to receive. Should he be returned there is a very real risk of a rapid and irreversible decline in his mental health. I find this decline would cause serious harm to the appellant. At worst he could seek to take his own life again, at best he is likely to be living in a situation of destitution, in need of acute support and without the means or support structure to gain access to the same.’ The respondent submits that the FtT should have followed the legal test for Article 3 ECHR medical cases modified for suicide cases in MY (suicide risk after Paposhvili) [2021] UKUT 00232 (IAC).
47. Mr Martin for the appellant stated that there was no need for the FtT to apply the Article 3 legal test to medical/suicide cases. This was not an Article 3 medical case and the medical evidence concerning the appellant’s mental health was not disputed by the respondent. Although the judge did mention aspects of the AM (Zimbabwe) test that was within the wider proportionality assessment under Article 8 ECHR where the FtT also mentioned other non-medical factors as set out in the decision.
48. I have carefully considered the submissions. I accept that the appeal before the FtT was not pursued on the basis of an Article 3 ECHR medical case. It is clear from the decision at [17] that the respondent took the view at the hearing that there was nothing in the appellant’s medical evidence to show that to return him to Kenya would reach the Article 3 ECHR threshold for a medical claim or amount to a very significant obstacle. The appellant likewise did not put his case on the basis of a breach of Article 3 ECHR on account of his mental ill-health issues which is consistent with the FtT finding at [56] that the appellant’s mental health condition was stable and did not present a suicide risk.
49. In the circumstances, I do not agree that the FtT applied the incorrect legal test. The FtT Judge was entitled to consider the appellant’s mental ill-health and suicide risk combined with other Article 8 ECHR factors as part of the overall proportionality assessment undertaken: See HA v SSHD [2022] UKUT 00111 (IAC) at [183]. Accordingly, it was not an error of law for the FtT to not apply the Article 3 ECHR legal test modified to suicide cases.
Conclusions
50. In light of the foregoing reasons, it is clear that the FtT misdirected itself with regard to the elevated threshold within the very compelling circumstances test and failed to provide adequate reasons for its finding that very compelling circumstances existed. The FtT did not proceed clearly enough. As stated in OH (Algeria) v SSHD [2019] EWCA Civ 1793 at [63] ‘Tribunals are not obliged to write extensive essays or indulge in an anxious parade of learning. However, when approaching a statutory test of ‘very compelling reasons’, a tribunal does have an obligation to be more than usually clear as to why a conclusion is justified. Apart from any other consideration, full and clear reasoning will be protective of an appellant where such a finding is indeed justified.’
51. For the reasons mentioned, the FtT decision involved the making of a material error of law. I therefore allow the appeal on the proven grounds mentioned above and set aside the decision.
52. I canvassed with both parties their views on disposal in the event that a material error of law was found. Mr Martin suggested that the case be remitted while Mr Ojo considered that it should be retained in the Upper Tribunal for remaking. In light of the error(s) of law found and the fact-finding required, I consider that it would be more appropriate for the appeal to be remitted to the First-tier Tribunal with no preserved findings. In this regard, the two-tier decision-making process would be retained. In reaching this decision, I have applied the principles in AEB v Secretary of State for the Home Department [2022] EWCA Civ 1512 and Begum (Remaking or remittal) Bangladesh [2023] UKUT 00046 (IAC).
Notice of Decision
53. The decision of First-tier Tribunal Judge Davison of 8 October 2025 did involve the making of an error of law and is set aside. The matter is remitted to the First-tier Tribunal for rehearing before a differently constituted tribunal with no findings of fact preserved.

K.A.Khan

Judge of the Upper Tribunal
Immigration and Asylum Chamber

13 January 2026