Tribunal decisions

The decision

IN THE UPPER TRIBUNAL
IMMIGRATION AND ASYLUM CHAMBER Case No: UI-2025-005330
First-tier Tribunal No: HU/01222/2024

THE IMMIGRATION ACTS

Decision & Reasons Issued:

On 17th April 2026

Before

DEPUTY UPPER TRIBUNAL JUDGE KIRK

Between

SECRETARY OF STATE FOR THE HOME DEPARTMENT
Appellant
Respondent before the First-tier Tribunal

and

PRZEMYSLAW MALANOWSKI
(NO ANONYMITY ORDER MADE)
Respondent
Appellant before the First-tier Tribunal

Representation:
For the Appellant: Litigant in person
For the Respondent: Mr Simpson, Senior Home Office Presenting Officer

Heard at Field House on 14 January 2026

DECISION AND REASONS
Introduction
1. In this decision I refer to the Appellant in these proceedings, the Secretary of State for the Home Department, as the Respondent, and the Respondent in these proceedings, Mr Malanowski, as the Appellant, as they were before the First-tier Tribunal.
2. The Respondent appeals against the decision of a Judge of the First-tier Tribunal (‘Judge’) who, in a decision promulgated on 5 September 2025 (‘Decision’), allowed the Appellant’s appeal against the Respondent’s decision to refuse his human rights claim and maintain a deportation order made on 20 June 2024 pursuant to the automatic deportation provisions of section 32(5) of the UK Borders Act 2007 (‘UKBA 2007’).
3. On 5 November 2025, First-tier Tribunal Judge Cartin granted the Respondent permission to appeal to the Upper Tribunal.
Anonymity
4. The First-tier Tribunal did not issue an anonymity order. I take into account the principle of open justice and see no reason to make an order, so none is made.
Background
5. The Appellant is a national of Poland. He entered the United Kingdom on 11 September 2015, and he has since been continuously residing in the UK. On 18 September 2023, the Appellant was convicted for threats to kill, intentional strangulation and common assault. On 24 November 2023, the Appellant was sentenced to 24 months for the first offence and 19 months for the second offence, with no separate penalty for the third offence, to run concurrently (‘offences’). Consequently, the Appellant became liable for automatic deportation under s.32 of the UKBA 2007 as a result of him being a foreign national and receiving a custodial sentence of over 12 months imprisonment for the offences.
6. On 26 January, 10 February, 16 March and 7 May 2024, the Appellant made representations against deportation on human rights grounds. On 20 June 2024, the Respondent refused the Appellant’s human rights application and made a deportation order in accordance with s.32(5) UKBA 2007, on the grounds that the Appellant’s deportation is conducive to the public good, as per s.3(5)(a) of the Immigration Act 1971.
7. The Appellant appealed against the Respondent’s decision and sought to rely on an Exception from deportation under s.33 of the UKBA 2007, namely that the Appellant’s removal would be in breach of the Appellant’s rights under Article 8 of the European Convention on Human Rights (‘ECHR’).
First-tier Tribunal decision
8. The Judge determined that the Appellant enjoyed a genuine and subsisting parental relationship with his British daughter (OM), and that the effect of the Appellant’s removal on OM will be unduly harsh. The Judge was satisfied that the Appellant satisfied Exception 2 under s.117C(5) of the Nationality, Immigration and Asylum Act 2002 (‘NIAA 2002) and allowed the appeal on Article 8 grounds.
Permission to appeal to Upper Tribunal
9. The First-tier Tribunal granted permission to appeal on the following grounds:
“ …
2. The grounds of appeal submit that the Judge erred in two ways, by giving inadequate reasons for two key findings. The first relates to there being a genuine and subsisting relationship with [the Appellant’s] child. The second is by finding it would be unduly harsh for the child to remain in the UK without the Appellant.
3. I have considered the decision and the facts found as to the relationship between the Appellant and his child. I consider the ground to be arguable in respect of the two findings potentially having inadequate reasons. Permission is therefore granted to appeal.”
Upper Tribunal hearing and submissions
10. The oral and written submissions at the hearing are a matter of record and need not be set out in full here. The Tribunal had access to all the documents before the First-tier Tribunal and the composite bundle filed by the Respondent.
11. The Tribunal heard oral submissions from Mr Simpson for the Respondent, and from the Appellant, which have fully been taken into account.
Respondent
12. The Respondent provided the grounds on which she contends that the Judge made a material error of law in the Decision in her application for permission to appeal to the Upper Tribunal. Mr Simpson elaborated on these grounds in his oral submissions.
Ground 1 – Making a material misdirection of law – inadequate reasons – genuine and subsisting parental relationship
13. The Judge failed to adequately reason whether a genuine and subsisting parental relationship exists between the Appellant and OM on the evidence presented, given his offending behaviour was based on domestic abuse. In Secretary of State for the Home Department v VC (Sri Lanka) [2017] EWCA Civ 1967) (‘VC (Sri Lanka)’), McFarlane LJ set out the four elements required to establish whether “the person has a genuine and subsisting relationship with a child” at [42], and emphasised that the parent “must have a ‘subsisting’ role in personally providing at least some element of direct parental care to the child” at [43]. This was further clarified in SR (subsisting parental relationship – s117B(6) Pakistan [2018] UKUT 334 (IAC) (‘SR (Pakistan)’) in which Upper Tribunal Plimmer referred at [11]-[12] to the decision in JA (meaning of “access rights”) India [2015] UKUT 225 (IAC) (‘JA (India)’). In JA (India), the Upper Tribunal observed at [14] that a parent “who only has ‘indirect’ access rights to a child and who is not involved in either the day to day care of the child or in making important decisions regarding the child’s life may find it difficult to prove that he/she is ‘taking an active role in the child’s upbringing’”.
14. The evidence suggests that the Appellant does not have a ‘genuine and subsisting parental relationship’ with OM as outlined in the authorities, as whilst the Appellant’s partner [Ms SAB] is facilitating contact between the Appellant and OM, the relationship only extends to correspondence, the Appellant having been subjected to the conditions of his licence which includes being ‘electronically tagged’ and being unable to ‘approach or communicate with [Ms SAB] or [OM] without prior approval of [his] supervising officer and/or Social Services’ (Decision at [33]).
15. The Appellant’s licence ended on 18 July 2025 and, as far as the evidence shows, it is the Appellant’s partner who is OM’s primary carer. Although the Appellant has taken steps to rehabilitate and the Judge was satisfied that he is reformed, it is not the case that the family unit is reconciled, and the Judge is premature in asserting such, given that rebuilding the Appellant’s relationship with OM to re-enter her life and regain her trust will be a gradual and long process, and also given that the Appellant was assessed in the Offender Assessment System report (‘OASys report’) dated 4 March 2024 as a high risk of harm to children and known adults (Decision at [34]).
16. The Judge misdirected himself in finding that the Appellant has a genuine and subsisting parental relationship with OM (Decision at [36]), which is an error of law and is material to the finding that he meets s117C(5) of the NIAA 2002.
Ground 2 – Making a material misdirection of law – inadequate reasons – unduly harsh test
17. The Judge erred in law in failing to properly reason how OM’s circumstances come to be unduly harsh, nor was regard had to the elevated threshold demanded in the unduly harsh test as set out in the authoritative guidance by the Supreme Court in HA (Iraq) v Secretary of State for the Home Department [2022] UKSC 22 (‘HA (Iraq)’), KO (Nigeria) v Secretary of State for the Home Department [2018] UKSC 53 (‘KO (Nigeria)’) at [23] and MK (Section 55: Tribunal Options: Sierra Leone) [2015] UKUT 223 (‘MK (Sierra Leone)’) at [46]. The Judge failed to give any reasons as to the consequences of the Appellant’s deportation on OM, nor what might be the effects of future ongoing separation. There is no evidence to show OM suffered in the Appellant’s absence during his incarceration, nor evidence that the impact of his deportation on OM would be ‘severe’ or ‘bleak’.
18. The Judge failed to adequately consider the evidence regarding the Appellant’s rehabilitation and its sustainability given his sentence has only very recently expired, and the ongoing risk the Appellant poses to OM remains ‘live’ given the evidence which is material to the outcome.
19. In relation to disposal, Mr Simpson submitted that while the Respondent had no strong view, the matter could be retained in the Upper Tribunal.
Appellant
20. The Appellant told the Tribunal that his licence expired on 19 July 2025. He has daily contact with OM, and they spend weekends together. He makes joint decisions with Ms SAB in relation to OM.
Decision on error of law
21. I remind myself of the limited circumstances in which an appellate Tribunal may interfere with findings of fact and credibility by the First-tier Judge. In Volpi & Anor v Volpi [2022] EWCA Civ 464; [2022] 4 W.L.R. 48, Lewison LJ, with whom Males and Snowden LJJ agreed, explained interference with findings of fact and credibility is appropriate only where such a finding is ‘plainly wrong’ or ‘rationally insupportable’ at [2]:
“The appeal is therefore an appeal on a pure question of fact. The approach of an appeal court to that kind of appeal is a well-trodden path. It is unnecessary to refer in detail to the many cases that have discussed it; but the following principles are well-settled:
(i) An appeal court should not interfere with the trial judge's conclusions on primary facts unless it is satisfied that he was plainly wrong.
(ii) The adverb “plainly” does not refer to the degree of confidence felt by the appeal court that it would not have reached the same conclusion as the trial judge. It does not matter, with whatever degree of certainty, that the appeal court considers that it would have reached a different conclusion. What matters is whether the decision under appeal is one that no reasonable judge could have reached.
(iii) An appeal court is bound, unless there is compelling reason to the contrary, to assume that the trial judge has taken the whole of the evidence into his consideration. The mere fact that a judge does not mention a specific piece of evidence does not mean that he overlooked it.
(iv) The validity of the findings of fact made by a trial judge is not aptly tested by considering whether the judgment presents a balanced account of the evidence. The trial judge must of course consider all the material evidence (although it need not all be discussed in his judgment). The weight which he gives to it is however pre-eminently a matter for him.
(v) An appeal court can therefore set aside a judgment on the basis that the judge failed to give the evidence a balanced consideration only if the judge's conclusion was rationally insupportable.
(vi) Reasons for judgment will always be capable of having been better expressed. An appeal court should not subject a judgment to narrow textual analysis. Nor should it be picked over or construed as though it was a piece of legislation or a contract.”
Ground 1
22. Ground 1 contends that the Judge failed to give adequate reasons to support his finding that a genuine and subsisting parental relationship exists between the Appellant and OM.
23. I have had regard to the authorities in relation to the adequacy of reasons and interference with factual findings. I note the following observations of Dingemans LJ in Terghazi v SSHD [2019] EWCA Civ 2017; [2020] Imm. A.R. 461 at [45]:
“A further principle which it is relevant to note is that, even if an appellate court is entitled to hear an appeal because of an error of fact (because the appeal court has jurisdiction to hear appeals on facts) appellate courts should be very cautious in overturning findings of fact made by a first instance judge. This is because first instance judges have seen witnesses and take into account the whole “sea” of the evidence, rather than indulged in impermissible “island hopping” to parts only of the evidence, and because duplication of effort on appeal is undesirable and increases costs and delay. Judges hearing appeals on facts should only interfere if a finding of fact was made which had no basis in the evidence, or where there was a demonstrable misunderstanding of relevant evidence, or a demonstrable failure to consider relevant evidence so that the decision could not reasonably be explained or justified.”
24. I have also noted the comments of Carnwath LJ in Mukarkar v SSHD [2006] EWCA Civ 1045; [2007] Imm. A.R. 57 at [40] approved by the Supreme Court in MM (Lebanon) v SSHD [2017] UKSC 10; [2017] 1 W.L.R. 771 at [107] that:
“… It is of the nature of such judgments that different tribunals, without illegality or irrationality, may reach different conclusions on the same case … The mere fact that one tribunal has reached what may seem an unusually generous view of the facts of a particular case does not mean that it has made an error of law, so as to justify an appeal under the old system, or an order for reconsideration under the new… However on the facts of a particular case the decision of a specialist tribunal should be respected”.
25. The Court of Appeal considered the meaning of “genuine and subsisting parental relationship” in Secretary of State for the Home Department v AB (Jamaica) and Anor [2019] EWCA Civ 661 (‘AB (Jamaica)’). Singh LJ at [88] referred to the judgment of Upper Tribunal Judge Plimmer in SR (Pakistan) in addressing the question of whether there was a “genuine and subsisting parental relationship”, as required by section 117B(6)(a). UTJ Plimmer stated at [35]:
“The assessment of whether there is a ‘genuine and subsisting parental relationship’ for the purposes of EX.1 and section 117B(6)(a) is different in form and substance to whether a parent has taken an ‘active role’ in the child’s ‘upbringing’ for the purposes of R-LTRPT1.1. It is possible to have a genuine and subsisting parental relationship with a child, particularly in cases where contact has only recently resumed on a limited basis, but for that relationship not to include a parent playing an active role in the child’s upbringing. The fact that SR has not been involved in making important decisions in A’s life does not necessarily mean that he has not developed a genuine and subsisting relationship. The nature and extent of that relationship requires a consideration of all the facts referred to RK at [42]. The child’s age is also likely to be a relevant factor.
26. Singh LJ stated at [89] that, like UTJ Plimmer, he “found helpful” the judgment of Upper Tribunal Judge Grubb in R (RK) v Secretary of State for the Home Department [2016] UKUT 31 (IAC) (‘RK’) and specifically the analysis of the concept of ‘parental relationship’ at [42], with which Singh LJ expressed his agreement:
“Whether a person is in a ‘parental relationship’ with a child must, necessarily, depend on the individual circumstances. Those circumstances will include what role they actually play in caring for and making decisions in relation to the child. That is likely to be a most significant factor. However, it will also include whether that relationship arises because of their legal obligations as a parent or in lieu of a parent under a court order or other legal obligation. I accept that it is not necessary for an individual to have ‘parental responsibility’ in law for there to exist a ‘parental relationship,’ although whether or not that is the case will be a relevant factor. What is important is that the individual can establish that they have taken on the role that a ‘parent’ usually plays in the life of their child.”
27. Singh LJ further endorsed UTJ Plimmer’s observations in SR (Pakistan) at [39] as follows:
“There are likely to be many cases in which both parents play an important role in their child's life and therefore both have subsisting parental relationships with the child, even though the child resides with one parent and not the other. There are also cases where the nature and extent of contact and any break in contact is such that although there is contact, a subsisting parental relationship cannot be said to have been formed. Each case turns on its own facts.”
28. In SR (Pakistan), UTJ Plimmer found at [36]-[37] that an element of “direct parental care” is required for a genuine and subsisting parental relationship to exist. For this proposition, she relied upon the judgment of McFarlane LJ in VC (Sri Lanka) in particular at [42]-[43]:
“For the reasons put forward by Mr Cornwell, it was, in my view, not possible for the circumstances of this case to come within the requirements of paragraph 399(a) of the Rules. On the basis of the Court of Appeal’s analysis of the family history, [VC] had played only a minimal role in the care of his children and, even when living at the family home, he had on a regular basis rendered himself unable to act as a parent as a result of heavy drinking and abusive behaviour. By the time of the Secretary of State’s decision to deport him, any vestiges of a ‘parental relationship’ with the children had long fallen away and had reduced to their genetic relationship coupled with the most limited level of direct contact which was intended to cease altogether on adoption. Mr Cornwell is correct to stress the words ‘genuine’, ‘subsisting’ and ‘parental’ within paragraph 399(a). Each of those words denotes a separate and essential element in the quality of relationship that is required to establish a ‘very compelling justification’ [per Elias LJ in AJ (Zimbabwe)] that might mark the parent/child relationship in the instant case as being out of the ordinary.
Although, as I have explained, [VC’s] case falls, as it were, at the first hurdle in that it was not possible on the facts as they were at the time of the decision to hold that he had a ‘genuine and subsisting parental relationship’, I am also persuaded that the Appellant is correct in submitting that for paragraph 399(a) to apply the ‘parent’ must have a ‘subsisting’ role in personally providing at least some element of direct parental care to the child. The phrase in paragraph 399(a)(ii)(b) which required that ‘there is no other family member who is able to care for the child in the UK’ strongly indicates that the focus of the exception established in paragraph 399(a) is upon the loss, by deportation, of a parent who is providing, or is able to provide, ‘care for the child’. This provision is to be construed on the basis that it applies to a category of exceptional cases where the weight of public policy in favour of the default position of deportation of a foreign criminal will not apply. To hold otherwise, and to accept Ms Jegarajah’s submission that her client comes within the exception simply because he has some limited, non-caring contact with his child would enable very many foreign criminals to be included in this exception.”
29. In AB (Jamaica), Singh LJ stated at [94] that he respectfully disagreed with UTJ Plimmer that these passages “could simply be transplanted to the context of section 117B(6)(a)”. His Lordship explained at [95] that the language and structure of para. 399(a) of the Immigration Rules, which were under consideration by McFarlane LJ in VC (Sri Lanka), are different from the language and structure of section 117B(6)(a) which does not require that there be an element of direct parental care to the child. Singh LJ stated at [96]:
“In my view, it is clear that the provisions of para. 399 in that case included, as an essential element, that there was ‘no other family member who is able to care for the child in the UK’. That led McFarlane LJ to interpret the provision as a whole to require ‘at least some element of direct parental care to the child.’ In my view, it would not be right to give the same interpretation to the very different language of section 117B(6)(a).”
30. Singh LJ noted at [97] that in RK UTJ Grubb “did not add this gloss to the meaning of ‘parental relationship’”. His Lordship continued at [97]-[98]:
“In my view, UTJ Plimmer was right to derive assistance from what UTJ Grubb had said when she quoted para. 42 of his judgment in her judgment in SR (Pakistan). However, in my view where she then fell into error was in the subsequent passage, where she considered, at paras. 36-37 of her judgment, that the interpretation given by McFarlane LJ to para. 399 of the Immigration Rules in VC (Sri Lanka) also applies to the interpretation of section 117B(6)(a). In my respectful view, that interpretation would be wrong and should not be followed.
… In my view, the words used in the Act with which we are now concerned are words of the ordinary English language and no further gloss should be put upon them. Their application will depend on an assessment by the relevant court or tribunal of the facts of the particular case before it. The exercise is a highly fact-sensitive one.”
31. In the Decision, the Judge found at [36] that the Appellant has a “genuine and subsisting parental relationship” with OM as required by Exception 2 under s.117C (5) of the NIAA 2002. The Judge referred to the evidence that the Appellant was not permitted to contact Ms SAB or OM while he was in prison, and Ms SAB sent Easter greeting cards from OM to the Appellant via the Appellant’s brother at [32]. Following the completion of the custodial part of his sentence on 18 July 2024, the Appellant was taken into immigration detention and released on immigration bail on 12 September 2024. The conditions of the Appellant’s release included that he be electronically tagged, and that he “not seek to approach or communicate with [Ms SAB] or [OM] without prior approval of [his] supervising officer and/or Social Services.” The Appellant’s licence expiry date was 18 July 2025 at [34]. The Judge made the following findings at [35]-[36]:
“Whilst in the community, I accept that the Appellant continued to receive Easter cards and photographs of OM from Ms SAB via the Appellant’s brother and mutual friend, which were adduced at the hearing … I find the Appellant’s evidence that Ms SAB is facilitating contact from OM to the Appellant on the basis that they both believe their Catholic teaching that a child needs their father to be reliable evidence.
Keeping in mind the limitations placed on the Appellant by the licence conditions, for good reasons, on a holistic view and on balance, I find that the Appellant has a genuine and subsisting parental relationship with OM due to the Appellant’s concerted effort to reform and regain OM as a daughter, which I find is also what OM wants, notwithstanding that the Appellant’s contact is limited to receiving correspondence from OM at the discretion of Ms SAB.”
32. While the Judge did not cite the authorities referred to above at [25]-[30], his assessment of whether the Appellant has a genuine and subsisting parental relationship with OM was undertaken within the correct legal framework and applying the legal principles articulated in the authorities. Accordingly, there is no merit in the Respondent’s claim that the Judge misdirected himself in law. Nor is there substance in the Respondent’s assertion that the Judge failed to provide adequate reasons, as the analysis in the paragraphs cited above is balanced and sufficiently reasoned and based on the evidence.
33. The finding that the Appellant has a genuine and subsisting parental relationship with OM was rationally open to the Judge, and the fact that the Respondent disagrees, or that another Judge may have reached a different conclusion, does not mean the Judge’s decision can or should be interfered with. It follows that I am not satisfied that Ground 1 is made out.
Ground 2
34. Ground 2 contends that the Judge erred in law in failing to properly reason how OM’s circumstances come to be unduly harsh, and failing to have regard to the elevated threshold demanded in the unduly harsh test as set out in the authorities.
35. The meaning of “unduly harsh” was considered by the Supreme Court in KO (Nigeria). Lord Carnwath said at [23]:
“On the other hand the expression ‘unduly harsh’ seems clearly intended to introduce a higher hurdle than that of ‘reasonableness’ under section 117B(6), taking account of the public interest in the deportation of foreign criminals. Further the word ‘unduly’ implies an element of comparison. It assumes that there is a ‘due’ level of ‘harshness’, that is a level which may be acceptable or justifiable in the relevant context. ‘Unduly’ implies something going beyond that level. The relevant context is that set by section 117C(1), that is the public interest in the deportation of foreign criminals. What it does not require in my view (and subject to the discussion of the cases in the next section) is a balancing of relative levels of severity of the parent's offence, other than is inherent in the distinction drawn by the section itself by reference to length of sentence. Nor (contrary to the view of the Court of Appeal in IT (Jamaica) v Secretary of State for the Home Department [2017] 1 WLR 240, paras 55 and 64) can it be equated with a requirement to show ‘very compelling reasons’. That would be in effect to replicate the additional test applied by section 117C(6) with respect to sentences of four years or more.”
36. The Supreme Court again considered the unduly harsh test in HA (Iraq), and approved the self-direction given by the Upper Tribunal in MK (Sierra Leone) at [46]:
“… By way of self-direction, we are mindful that ‘unduly harsh’ does not equate with uncomfortable, inconvenient, undesirable or merely difficult. Rather, it poses a considerably more elevated threshold. ‘Harsh’ in this context, denotes something severe, or bleak. It is the antithesis of pleasant or comfortable. Furthermore, the addition of the adverb ‘unduly’ raises an already elevated standard still higher…”
37. In his judgment in HA (Iraq), Lord Hamblen made the following observations in relation to the ‘unduly harsh’ standard at [41]:
“This direction has been cited and applied in many tribunal decisions. It recognises that the level of harshness which is “acceptable” or “justifiable” in the context of the public interest in the deportation of foreign criminals involves an “elevated” threshold or standard. It further recognises that “unduly” raises that elevated standard “still higher” - ie it involves a highly elevated threshold or standard. As Underhill LJ observed at para 52, it is nevertheless not as high as that set by the “very compelling circumstances” test in section 117C(6).
Whilst it may be said that the self-direction involves the use of synonyms rather than the statutory language, it is apparent that the statutory language has caused real difficulties for courts and tribunals, as borne out by the fact that this is the second case before this court relating to that language within four years. In these circumstances I consider that it is appropriate for the MK self-direction to be adopted and applied, in accordance with the approval given to it in KO (Nigeria) itself.
Having given that self-direction, and recognised that it involves an appropriately elevated standard, it is for the tribunal to make an informed assessment of the effect of deportation on the qualifying child or partner and to make an evaluative judgment as to whether that elevated standard has been met on the facts and circumstances of the case before it.
Such an approach does not involve a lowering of the threshold approved in KO (Nigeria) or reinstatement of any link with the seriousness of the offending, which are the other criticisms sought to be made of the Court of Appeal’s decision by the Secretary of State.”
38. The Judge’s reasons in relation to whether it would be unduly harsh on OM if the Appellant were deported are at [37]-[41] of the Decision:
“… The determinative consideration under Exception 2 is whether or not the effect of the Appellant’s deportation on OM would be unduly harsh.
The Respondent refers to the Appellant’s offences and the lack of contact or support provided to OM by the Appellant to argue that it would not be unduly harsh on OM if the Appellant is deported. Further, that the Appellant could maintain contact with OM from Poland. I find the aforementioned to be factually correct and cogent considerations.
OM was three years of age at the time of the Appellant’s offences and that was also the last time OM had any direct contact with the Appellant. OM’s memories of her father, the Appellant, if she has any, are of horror and fear. OM is now five years of age and the aforementioned will be OM’s lasting memories of her father with the Appellant’s deportation. Furthermore, the Appellant’s deportation will also deprive OM of having a father during her early formative years, at least, which I find will have an unduly harsh effect on OM through no fault of her own, contrary to OM’s best interests, which is a primary consideration.
I find the effect on OM will be unduly harsh particularly as there is an alternative, being not depriving OM of a devoted father who readily admits to have made mistakes and has singularly focused on reforming and regaining the love and trust of his only child. That also appears to me to be what OM’s responsible parent, Ms SAB, wants; being a father in OM’s life. I find that the Appellant knows and has also demonstrated that he must conduct himself appropriately and through the proper means without even threatening any form of harm on OM, Ms SAB or the public good in seeking to re-enter OM’s life.
On a holistic view and having taken all of the considerations and the respective weight to be attached to each in the balance, I find that the effect of the Appellant’s removal on OM will be unduly harsh. In my view, the effect will be far more than being mere inconvenience for OM and it will deprive OM of a reformed father even before OM’s life starts in earnest. Therefore, the Appellant satisfies Exception 2 under s.117C (5) of the NIAA 2002 and the appeal stands to be allowed on Article 8 ECHR ground of appeal.”
39. In my view, the Judge provided detailed and cogent reasoning for his conclusions in respect of the ‘unduly harsh’ element of Exception 2 under s.117C (5) of the NIAA 2002, and these conclusions were anchored in the evidence before him. Although the Judge did not cite the authorities referred to in [35]-[37] above, there is no indication from the Judge’s reasoning or his findings that he did not appreciate the elevated threshold required to meet the ‘unduly harsh’ requirement of Exception 2. The reasoning clearly took into account both negative and positive factors in the round before a conclusion was reached. The reasoning cannot be said to be inadequate, and the conclusion was rationally open to the Judge. The fact that the Respondent disagrees, or that another Judge may have reached a different conclusion, does not mean the Judge’s decision can or should be interfered with. It follows that I am not satisfied that Ground 2 is made out.
Notice of Decision
40. The Decision of the First-tier Tribunal promulgated on 5 September 2025 which had allowed the Appellant’s appeal did not involve the making of a material error of law and shall stand.

Linda Kirk

Deputy Judge of the Upper Tribunal
Immigration and Asylum Chamber

10 April 2026