Tribunal decisions

The decision

IN THE UPPER TRIBUNAL
IMMIGRATION AND ASYLUM CHAMBER Case Nos: UI-2025-005312
First-tier Tribunal No: HU/55010/2024

THE IMMIGRATION ACTS

Decision & Reasons Issued:
On 17th March 2026

Before

UPPER TRIBUNAL JUDGE KEBEDE

Between

BABATUNDE ISIAKA OYENIRAN
Appellant
and

SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: Mr A Tan, Senior Home Office Presenting Officer
For the Respondent: Mr C Holmes, instructed by Masaud Solicitors Limited

Heard at Field House on 13 March 2026

DECISION AND REASONS
1. This is an appeal by the Secretary of State for the Home Department against the decision of the First-tier Tribunal allowing Mr Oyeniran’s appeal against the decision to refuse his human rights claim following a decision to deport him from the UK.
2. For the purposes of this decision, I shall hereinafter refer to the Secretary of State as the respondent and Mr Oyeniran as the appellant, reflecting their positions as they were in the appeal before the First-tier Tribunal.
3. The appellant is a Nigerian national born on 17 September 1978. Despite criminal convictions and an adverse immigration history in the UK, including re-entering the UK after being removed and several unsuccessful applications, the respondent has nevertheless granted him two periods of leave to remain, most recently after a stage one deportation decision was made against him. The First-tier Tribunal’s decision allowing the appellant’s appeal was based to some extent upon the respondent’s conduct in that respect, upon the apparent contradictory decision-making as a result of that conduct and upon the implications of that conduct in considering the public interest in deporting the appellant. The respondent now, and rather belatedly, seeks to clarify and justify that apparent contradictory decision-making to support her challenge to the Tribunal’s decision.
4. I set out the background to this appeal in order to understand the issues now being raised by the respondent in her challenge to the First-tier Tribunal’s decision.
5. Following his entry to the UK in 2001/2002, and after his conviction and 12 month conditional discharge for attempting to open a bank account using a forged Dutch passport, the appellant was removed to Nigeria in August 2005, but returned to the UK clandestinely in June 2010. He came to the attention of the authorities when he was named in an application made by his partner on 23 January 2014 for leave to remain in the UK. The application was rejected in February 2014, and a further application made on the same basis was refused on 4 June 2014 and again on 16 October 2015 following reconsideration. The appellant unsuccessfully appealed against the decision and became appeal rights exhausted on 4 August 2017. In the meantime, he was convicted on 27 October 2015 for a driving offence and was made the subject of a community order.
6. Further to an application made on 5 April 2018, the appellant was granted leave to remain in the UK on the basis of his family and private life on 18 December 2018, valid until 20 June 2021.
7. On 18 May 2019 the appellant arrived at Manchester Airport and presented a biometric resident permit card, together with a Nigerian passport which was later confirmed to be forged. He was detained, convicted on 9 October 2019 for possessing false identity documents and sentenced to 15 months’ imprisonment. On 17 October 2019 the respondent issued a stage one decision to deport him pursuant to the Immigration Act 1971 and the UK Borders Act 2007.
8. The appellant was, however, granted leave to remain on 9 September 2022, valid to 9 March 2025 under the parent 10-year route to settlement. That was following an application made on 30 August 2021 for leave to remain based on his family life with his three children: his daughter, Sofiyat Oyeniran, born on 10 December 2005, a British citizen; his son Khalid Oyeniran born on 23 December 2012, a Nigerian national; and his daughter Aishat Oyeniran born on 30 December 2018, a Nigerian national, all of whom lived with their mother, from whom he was separated.
9. On 23 April 2024 the respondent signed a deportation order against the appellant by virtue of section 32(5) of the UK Borders Act 2007 and made a stage-two decision the following day to refuse his human rights claim, revoking his leave to remain. In refusing his claim, the respondent stated that it was not accepted that the appellant had a genuine parental relationship with his children since he had failed to provide sufficient evidence to show that the relationships were genuine and subsisting. The respondent did not accept that it would be unduly harsh for the children to remain in the UK without the appellant if he was deported, as they lived with their mother. It was considered that if she required support she could seek assistance from either Children’s Services or from family members resident in the UK. The respondent also considered that it would not be unduly harsh for the children to live in Nigeria, or alternatively to live with their mother in the UK until the end of the school year and to then join the appellant in Nigeria for the holidays. The respondent noted that the children’s mother was a Nigerian national and did not accept that the appellant had a genuine and subsisting relationship with her, as he had stated that he was separated from her. The respondent considered that it would not be unduly harsh for her to live in Nigeria if she chose to do so, or to remain in the UK without the appellant if he was deported. The respondent did not accept, therefore, that the appellant could meet the family life exceptions to deportation. Neither did the respondent accept that the appellant met the private life exceptions to deportation as he had not been lawfully resident in the UK for most of his life and it was not accepted that he was socially and culturally integrated in the UK or that there would be very significant obstacles to his integration in Nigeria. It was also not accepted that there were any very compelling circumstances outweighing the public interest in his deportation. The respondent confirmed that the appellant’s leave to remain was invalidated by the deportation order and was revoked.
10. The appellant appealed against the refusal of his human rights claim, and his appeal came before the First-tier Tribunal on 12 September 2025. The First-tier Tribunal Judge heard oral evidence from the appellant, the mother of his children and his eldest daughter. He found that the two younger children were ‘qualifying children’ and that the appellant enjoyed a genuine and subsisting parental relationship with them, seeing them on a daily basis. He noted that the appellant separated from their mother in 2018 but that they continued to co-parent them. The judge noted the evidence that the appellant took the children to school whilst their mother attended a placement as part of her university degree. The appellant’s eldest daughter gave evidence that she was at Nottingham University and that she would speak to her siblings every day on Facetime when they were on the school run with their father. The judge found that it would be unduly harsh for the children to relocate to Nigeria with the appellant. He found that the effect of the appellant’s deportation on the children if they remained in the UK would also be unduly harsh and, furthermore, that even if that was not the case there were very compelling circumstances outweighing the public interest in the appellant’s deportation. In so doing the judge found that the grant of leave to the appellant reduced the public interest in his deportation, as the respondent did not refuse the application on suitability grounds and did not assert that the children could return to Nigeria at that time. The Judge accordingly allowed the appellant’s appeal in a decision promulgated on 4 October 2025.
11. The Secretary of State sought permission to appeal the First-tier Tribunal’s decision on two grounds. Firstly, that the judge had failed to provide adequate reasons for finding that the appellant’s children would experience unduly harsh consequences on the appellant’s deportation and had failed to consider material facts. Secondly, that the judge had made a mistake on a material fact giving rise to unfairness, due to the appellant failing to provide an accurate account of his circumstances, in that he was aware at the time of the hearing that the grant of leave which had been made to him had been treated as invalid by the respondent, but he had not mentioned that. Furthermore, it was asserted, it could not be said that human error in initially granting the appellant leave he was not entitled to amounted to a very compelling circumstance.
12. With the application for permission, the respondent made an application under Rule 15(2A) of The Tribunal Procedure (Upper Tribunal) Rules 2008 to rely upon the Home Office Presenting Officer’s record of proceedings from the hearing before the First-tier Tribunal and to adduce two letters addressed to the appellant, dated 16 August 2023 and 2 November 2023, in which he was advised by the respondent that his leave had been granted erroneously since deportation action had been pursued due to his criminality in the UK. It was asserted in the rule 15(2A) application that the appellant had knowingly misled the judge with regards to that material fact.
13. Permission was granted in the First-tier Tribunal. On behalf of the appellant, Mr Holmes served a rule 24 response to the grant of permission, opposing the appeal.
14. The matter then came before me.
Hearing and Submissions
15. Both parties made submissions.
16. Mr Tan relied and expanded upon the grounds. He referred to the observation in the respondent’s decision of 24 April 2024 that if the appellant’s spouse required support upon his deportation to Nigeria, she could seek assistance from either Children’s Services or from his/her family members resident in the UK. He submitted that the judge had failed to give any consideration to that matter, despite the appellant’s evidence at the hearing being that there were family members living nearby, as evidenced in the PO’s record of proceedings. Mr Tan submitted that that was a material omission as it was relevant to the question of undue harshness. He submitted further that the judge had failed to identify any factors impacting upon the children which would arise from the appellant’s deportation and had failed to give reasons why the appellant’s 12 year old son would suffer adverse consequences or identify any evidence to that effect. There was no evidence of any adverse financial impact on the family of the appellant’s deportation. There was therefore a failure by the judge to give adequate reasons for his conclusions on the ‘unduly harsh’ test. As for the judge’s findings on ‘very compelling circumstances’, Mr Tan submitted that that was undermined by the incomplete ‘unduly harsh’ assessment. He submitted that the judge had also erred in how he reached the conclusion that he did, as he gave weight to the appellant’s grant of leave to remain but did not identify any other factors aside from the fact that the appellant had not re-offended. The judge had not taken account of the appellant’s full history of offending as there were repeated offences. Mr Tan submitted that the judge had made a mistake of fact by considering both children to be qualifying children, whereas the youngest child had been in the UK for less than 7 years at the time of the hearing. Mr Tan submitted that the documents included in the rule 15(2A) application highlighted the fact that the grant of leave had been made in error. The Secretary of State took action promptly in August 2023 when the error was discovered and cancelled the appellant’s leave. The appellant was aware of that but failed to mention it. He bore responsibility for the failure. That was also a material matter as it led the judge to reduce the public interest consideration.
17. Mr Holmes relied upon his rule 24 response. He submitted that it was clear to the respondent why she had lost the appeal. The judge had set out the factors upon which he relied and had considered the impact of the appellant’s deportation on his children. It was to be assumed that the judge had considered the presence of family members and taken that into account. It was not a matter upon which there had been reliance at the hearing as only one single question was asked in cross-examination about family members without any follow-up. The rest of that ground was a disagreement by the Secretary of State with the judge’s decision. As for the second ground, Mr Holmes submitted that the only matter pleaded in the grounds was in relation to the appellant’s grant of leave, and it was not open to the respondent now to expand upon the grounds at this stage by adding a reasons challenge. It was not open to the respondent to rely upon post-hearing evidence. The test for her to do so, in Ladd v Marshall [1954] 1 WLR 1489, was not met, and neither did the mistake of fact in regard to the grant of leave fall within the criteria in E v Secretary of State for Home Department [2004] EWCA Civ 49. It was the respondent’s fault that the evidence was not adduced: she had been directed by the First-tier Tribunal to produce all evidence in that regard following an adjourned hearing on 18 July 2025. The respondent‘s letter of 7 August 2025 responding to the directions did not suggest that the grant of leave was made in error and did not say that the Tribunal should disregard the grant of leave. On the contrary, the letter was clear that the grant of leave was made intentionally, but that there was a change of mind. The Secretary of State was now criticising the judge for considering the case on the basis upon which it was advanced by the respondent at the hearing. With regard to the substance of the two letters relating to the grant of leave, Mr Holmes submitted that all they said was that the Secretary of State would reconsider the grant of leave and that the appellant’s BRP card would be cancelled. Neither was a legally effective decision which impacted on the grant of leave. There had been no cancellation or curtailment of leave. The letters just showed that the respondent had thought about it. There were no case notes explaining the grant of leave. There was therefore no substance to the challenge made by the respondent in that regard. Mr Holmes submitted that there was accordingly no error in the judge’s decision.
18. In response, Mr Tan submitted that, with regard to the first ground, the refusal decision had made it clear that there was an issue about the appellant having other family members in the UK who could support the children’s mother in his absence, and the judge ought therefore to have considered that matter. With regard to the second ground he submitted that there was insufficient evidence for the judge to find that the very compelling circumstances test was met.
Analysis
19. The respondent’s grounds, quite properly, do not raise any challenge to the judge’s findings on the ‘go’ scenario.
20. With regard to the ‘stay’ scenario, the respondent challenges the judge’s decision on the grounds that, whilst there was information of other family members living in the area, the judge failed to address or consider that fact and failed to make any assessment concerning what potential help and support would be available to the appellant’s former partner and their children from those family members or from the State. In that respect, Mr Tan relied upon the notes of the Presenting Officer from the hearing in the First-tier Tribunal as amounting to evidence of alternative sources of support for the children’s mother in the appellant’s absence which ought to have been considered by the judge. He also relied upon the reference in the refusal decision to the possibility of assistance from either Children’s Services or family members resident in the UK.
21. I agree with Mr Holmes that, irrespective of what was stated in the refusal decision, that was not, however, the basis upon which the respondent particularly advanced her case at the hearing. Furthermore, had it been advanced on such a basis it was unlikely to have made a difference to the outcome of the judge’s decision, given the very limited nature of the evidence adduced in that regard and the material matters upon which the judge relied in making his findings. The main reasons given by the judge for reaching the conclusion that he did in relation to the ‘unduly harsh’ issue was the close relationship between the appellant and his children and the involvement that he had in their lives, neither of which would have been impacted by any consideration of external sources of support, or the matters raised at (d) of the first ground. Although at [22] the judge gave consideration to the level of support which the appellant provided in the care of the children in view of their mother’s study commitments, that was secondary to the consideration of the parental role he played in their lives, his level of involvement in their lives and the close relationship he had with his children. It cannot be said, in such circumstances, that a brief reference to a cousin living far from the appellant’s family and to an uncle who was a busy man and visited irregularly was evidence which could have materially impacted upon the judge’s decision. The judge was, indeed, not required to address each and every part of the evidence and thus cannot be criticised for having failed to make any specific reference to that evidence, when considering its limited impact and materiality.
22. As for the criticism of the judge in speculating upon the impact on the children of their father’s absence in the absence of any professional evidence, it seems to me that that is largely a disagreement by the respondent with the weight the judge gave to the impact of the appellant’s presence in the children’s lives. The judge heard evidence from the children’s mother and sister and was entitled to find that there would be a material impact on their lives if he was absent, not only in terms of child-care and support but also as a result of their close relationship and, with regard to the oldest child in particular, the presence of a father-figure given his stage of life. It was not a requirement for there to be a professional assessment of the impact on the children’s lives and the judge gave cogent reasons for making the findings that he did. He was well aware of the elevated threshold to be reached to meet the test of ‘unduly harsh’, having regard to the relevant caselaw and guidance therein, as set out at [15], and gave reasons for concluding that the threshold was met. It was open to the judge to conclude as he did. I therefore do not find the first ground to be made out.
23. That is sufficient in itself to justify upholding the judge’s decision to allow the appeal, as the findings on ‘very compelling circumstances’ were made in the alternative.
24. In any event I find no errors of law in the judge’s decision on the ‘very compelling circumstances’ issue. In relation to that challenge, Mr Tan’s submissions were more expansive than the grounds of appeal. The second ground of appeal was initially pleaded solely as a challenge to the judge’s reliance upon the September 2022 grant of leave. It did not include the matters raised in addition by Mr Tan, namely the appellant’s youngest child being wrongly found to be a qualifying child and a failure by the judge to consider the appellant’s full history of offending. Mr Holmes objected to the further matters being considered. However nothing material arises out of those further issues. The judge was clearly wrong to have treated the appellant’s youngest child as a qualifying child at that time, but the fact is that she has now been resident in the UK for over seven years, even if that was not the case at the hearing, and in any event that did not materially impact upon the judge’s decision. As for the assertion that the judge failed to take account of the appellant’s full history of offending, that did not appear to be a matter relied upon before the judge, and the deportation decisions focussed rather on the appellant’s history from 2019. Further, as stated previously, the respondent chose to grant leave to the appellant in April 2018 despite his previous offending. The judge therefore addressed matters which were relied upon by the respondent before him.
25. With regard to the ground which was pleaded, Mr Tan submitted that the judge had erred by finding the ‘very compelling circumstances’ test to be met on the sole basis of the respondent having granted the appellant a period of leave in September 2022. However, that was not the only basis for the judge finding the test to be met. The judge made it clear at [24] that there were several factors considered cumulatively in addition to the unduly harsh test being met, and that those included the appellant’s length of residence in the UK, the nature and circumstances of his offending and the absence of further offending since 2019, all of which were taken together with the implications of the grant of leave having been made.
26. As for the challenge to the judge’s reliance upon the appellant’s grant of leave, I agree with Mr Holmes that there are difficulties with the basis upon which the respondent makes that challenge. The respondent relies upon two letters, dated 16 August 2023 and 2 November 2023 in submitting that the appellant was aware that his grant of leave had been cancelled and that he had essentially misled the Tribunal by failing to mention that. However Mr Holmes rightly objected to the letters being relied upon at this late stage, having not been produced before the First-tier Tribunal. The respondent has provided no reason why the letters were only produced at this late stage, particularly when she was specifically directed, at an adjourned hearing on 18 July 2025, to address the apparent contradictions between the grant of leave in September 2022 and the subsequent deportation decision. As pointed out by the First-tier Tribunal when making those directions, the grant of leave on 9 September 2022 suggested that the appellant’s presence in the UK was NOT not conducive to the public good and was based on him having a genuine and subsisting relationship with his children and having an active role in their upbringing, whereas the respondent’s decision of 24 April 2024 was made on the basis that the appellant did not have a genuine parental relationship with his children and that his deportation was conducive to the public good. The respondent responded to those directions in a letter dated 7 August 2025, in which there was no suggestion that the appellant’s grant of leave in September 2022 had been cancelled or made in error, but rather that there had been a change of mind by the respondent by April 2024 following the making of the deportation order against the appellant. As Mr Holmes submitted, whilst the letter referred to decisions being based upon changing circumstances, there had in fact been no change in the appellant’s circumstances.
27. In any event neither letter states that the appellant’s leave was cancelled. The first letter of 16 August 2023 simply states that his leave was granted erroneously and that his case would be reconsidered. The second letter of 2 November 2023 states that the grant of leave on 9 September 2022 was incorrect and made in error, that it was to be reconsidered, and that his BRP card would be cancelled. There was no subsequent action taken to cancel the appellant’s leave prior to the stage two deportation decision. Indeed, the confirmation in the decision of 24 April 2024 that the appellant’s leave was invalidated by the deportation order and was revoked indicates that it had not previously been cancelled. In the circumstances, the absence of reference by the appellant to the letters in the First-tier Tribunal was not a matter which, in my view, should be considered as a deliberate attempt by him to conceal material information. That is particularly so when the respondent, despite being directed to provide full information about the grant of leave, made no mention herself of those letters or of any intention to cancel the appellant’s leave prior to the deportation decision in April 2024, in her 7 August 2025 response to the directions. The judge cannot, therefore, be criticised for having given weight to the respondent’s acceptance, in granting leave, of the appellant’s genuine relationship with his children and to the absence, at that time, of reasons for considering his presence in the UK not being conducive to the public good. Again, therefore, I do not find merit in the respondent’s grounds of appeal.
28. Accordingly, neither of the grounds is made out. In the circumstances, the respondent has failed to show that the judge made any material errors of law in his decision which require his decision to be set aside. Whilst it may be that another judge could have reached a different decision, the judge was entitled to conclude as he did on the evidence available to him. He applied the relevant statutory framework and legal tests, he considered all the evidence before him and he gave full and cogent reasons for reaching the conclusions that he did. His decision is accordingly upheld.
Notice of Decision
29. The Secretary of State’s appeal is dismissed. The making of the decision of the First-tier Tribunal did not involve a material error on a point of law requiring it to be set aside. The decision of the First-tier Tribunal to allow the appeal stands.

Signed: S Kebede
Upper Tribunal Judge Kebede

Judge of the Upper Tribunal
Immigration and Asylum Chamber

17 March 2026