Tribunal decisions

The decision

IN THE UPPER TRIBUNAL
IMMIGRATION AND ASYLUM CHAMBER Case No: UI-2025-005629
UI-2025-005630

First-tier Tribunal No: HU/00508/2025
EA/00469/2025

THE IMMIGRATION ACTS

Decision & Reasons Issued:

On 21st of May 2026

Before

UPPER TRIBUNAL JUDGE RASTOGI
DEPUTY UPPER TRIBUNAL JUDGE BURNS

Between

PJ
(ANONYMITY ORDER MADE)
Appellant
and

The Secretary of State for the Home Department
Respondent

Representation:
For the Appellant: Mr A. Pipe, Counsel, instructed by Duncan Lewis & Co Solicitors
For the Respondent: Mrs R Abdul-Karim , Senior Home Office Presenting Officer

Heard at Birmingham Civil Justice Centre on 17 April 2026

Order Regarding Anonymity

Pursuant to rule 14 of the Tribunal Procedure (Upper Tribunal) Rules 2008, the appellant and his family members are granted anonymity.

No-one shall publish or reveal any information, including the name or address of the appellant or his family members likely to lead members of the public to identify the appellant or his family members. Failure to comply with this order could amount to a contempt of court.

DECISION AND REASONS
1. The appellant appeals, with permission, the decision of the First-tier Tribunal (“FTT”) dated 20 October 2025 which dismissed his appeal against his deportation and the refusal of his human rights claim dated 3 March 2025.
2. The appellant is a citizen of Poland who offended in the United Kingdom following its departure from the European Union. On 3 December 2024, the respondent made a decision to deport him and the appellant exercised his right to appeal that deportation decision to the FTT. That is the appeal under the ‘EA’ number above. In response to that decision, the appellant made human rights submissions on 13 January and 3 February 2025, which the respondent refused on 3 March 2025. The appellant also appealed that decision. That is the appeal in the FTT under the ‘HU’ appeal number above.
3. Our task is to identify whether the FTT made an error on a point of law which justifies setting the decision aside. If so, we then have to decide how to proceed next. As will be seen, we have found there to be material errors of law in the FTT’s decision and we set it aside. We have not re-made the decision. That will happen on a future date, so at the moment, whether or not the appellant will be deported is still to be determined.
4. We were provided with a 802-page hearing bundle and we heard submissions on behalf of both parties. At the end of the hearing, we reserved our decision, which we now give together with our reasons.
Relevant Background
5. The appellant arrived in the United Kingdom in 2006 when he was ten years of age. He has lived here ever since and he was granted settled status under the EU Settlement Scheme (EUSS) in 2020.
6. The appellant has accrued a significant number of criminal convictions over that period. The full details were listed at [5] of the FTT decision but the main conviction to note was the one on 11 September 2024 when the appellant was convicted of possession of a controlled drug with intent to supply Class A cocaine and another of Class B and a possession of criminal property. On 18 October 2024 he was sentenced to a total of 38 months imprisonment.
7. The appellant has two children, Child A who was born in 2023 and Child B who was born in 2015. We have anonymised the appellant and them because, as will be seen, there are Family Court proceedings which are relevant to this appeal. It is important that the anonymity in those proceedings is not undermined by reference to the individual’s identity in these. Child A is the appellant’s child from his current relationship and Child B is his older child from a previous relationship. The appellant has not had contact with Child B since 2016 but, whilst in prison for the 2024 offences, he made a Family Court application to reinstate contact with Child B.
8. In his human rights submissions, the appellant relied on his current family life with his partner and Child A (along with his wider family ties, Child B and private life in the UK). Furthermore, the appellant relied on his poor mental health and the risk to that if he were deported to Poland.
9. The respondent refused the appellant’s human rights claim on the basis that it was not unduly harsh on the appellant or his family members for him to be deported and them to either remain here without him (the stay scenario) or for his partner and Child A to accompany him to Poland (the go scenario); nor that there would be very significant obstacles to him reintegrating into Poland; nor that there are very compelling circumstances over and above the Exceptions to deportation bearing in mind the seriousness of his offending.
The FTT Decision
10. Under the heading ‘Preliminary issues’ the judge said at [9]:
“The Appellant made an application in July 2025 for direct contact with his daughter, I highlighted that if I found the Appellant’s application for contact with his daughter to be a genuine attempt to gain contact, then I would allow the appeal on the grounds of very compelling circumstances. It would be a matter for the Respondent to make a further order following conclusion of those proceedings.”
11. At [13] the judge set out the disputed issues for the FTT to decide ((1)very significant obstacles to reintegration into Poland; (2) and (3) is his deportation unduly harsh on his partner and Child A on the stay or go scenario; (4) whether there are very compelling circumstances to outweigh the public interest in his deportation).
12. On Issue 1, from [17], the FTT judge evaluated the range of factors the appellant raised as being obstacles to his reintegration into Poland. Of particular significance in this appeal is the judge’s treatment of the medical evidence about the appellant’s mental health. The judge decided weight should attach to the report of Dr Nsoh and that the appellant’s mental health may deteriorate on return and that may be an obstacle for him [23]. The judge noted the appellant’s concern that he would not be able to access treatment in Poland because of his mental health, but at [24] found that his UK based family would be able to offer him support to do so. When the judge evaluated this factor alongside the others the appellant raised, the judge did not consider them to amount to very significant obstacles to his reintegration [25].
13. On issues 2 and 3, the judge did not find either the stay or go scenarios to be unduly harsh for the appellant, his partner or Child A [26]. The judge did not find there to be a family life between the appellant and Child B given their lack of contact since 2016 [34]. Furthermore, the judge did not find the appellant’s application to the Family Court to be genuine. At [34]-[35] the judge said:
“34. In respect of the Appellant’s first child, he has not had contact with her since 2016 and only utilised his indirect contact on one occasion. The Appellant has commenced family court proceedings in June of this year, but in my finding the Appellant does not have family life with his daughter and has only utilised the family court proceedings to obtain direct contact in the run up to his appeal hearing. The timing of the contact application appears non-genuine given the Appellant was well aware at the time of making it that deportation is being pursued and that a refusal of his human rights claim by the Respondent had taken place. Secondly, the Appellant is serving a sentence of imprisonment which makes direct contact most likely extremely difficult at this time.
35. I appreciate that the Appellant stated that he previously did not have the means to make an application, however, there are, as there are in prison, voluntary organisations outside of prison that assist with family applications and the timing, nearly 10 years after contact ceased and just before the Appellant’s appeal hearing makes it more likely than not that the Appellant embarked on the family court proceedings without a genuine intent to resume family life with his daughter.”
14. The judge found the best interests of both children to lay in staying with their respective mothers [36].
15. Turning to the ‘very compelling circumstances’ test (Issue (4)), the judge evaluated the factors on the respondent’s side of the balance sheet including the public interest in his deportation, the fact he had previously been warned that further offending may result in his deportation, yet he offended again and the seriousness of the type of offences he committed. Against that the judge balanced the factors on the appellant’s side of the scales, noting again the likelihood the appellant’s mental health would deteriorate on return. The conclusion the judge reached was that there were not very compelling circumstances over and above Exception 1 and 2 to outweigh the public interest in the appellant’s deportation.
16. The judge dismissed the appeal on Article 8 of the ECHR. No reference was made to the EA appeal.
The Grounds of Appeal
17. The appellant raised three grounds of appeal summarised as follows:
(1) the FTT erred in finding that the appellant’s application to the Family Court for contact with his daughter was not genuine, without properly engaging with supporting evidence from witnesses and expert reports and/or the finding was inadequately reasoned;
(2) the FTT’s finding that the appellant could not show very significant obstacles to his reintegration into Poland was irrational in light of accepted psychiatric evidence diagnosing recurrent moderate to severe depression, and a risk of significant deterioration on removal including a risk of completed suicide and the inability of the family to assist;
(3) when considering the ‘very compelling circumstances test’, the FTT placed insufficient weight upon the appellant’s age on arrival; his length of lawful residence, and integration in the UK, contrary to the principles in Maslov v Austria [2008] ECHR 546.
18. Permission was granted on all grounds.
The Legal Framework
19. As to the scope and role of the Upper Tribunal, the Court of Appeal said at paragraph [26] of Ullah v Secretary of State for the Home Department [2024] EWCA Civ 201:
“Sections 11 and 12 TCEA 20071 Act restricts the UT's jurisdiction to errors of law. It is settled that:
(i) the FTT is a specialist fact-finding tribunal. The UT should not rush to find an error of law simply because it might have reached a different conclusion on the facts or expressed themselves differently: see AH (Sudan) v Secretary of State for the Home Department [2007] UKHL 49 [2008] 1 AC 678 at paragraph [30];
(ii) where a relevant point was not expressly mentioned by the FTT, the UT should be slow to infer that it had not been taken into account: e.g. MA (Somalia) v Secretary of State for the Home Department [2010] UKSC 49 at paragraph [45];
(iii) when it comes to the reasons given by the FTT, the UT should exercise judicial restraint and not assume that the FTT misdirected itself just because not every step in its reasoning was fully set out: see R (Jones) v First Tier Tribunal and Criminal Injuries Compensation Authority [2013] UKSC 19 at paragraph [25];
(iv) the issues for decision and the basis upon which the FTT reaches its decision on those issues may be set out directly or by inference: see UT (Sri Lanka) v The Secretary of State for the Home Department [2019] EWCA Civ 1095 at paragraph [27];
(v) judges sitting in the FTT are to be taken to be aware of the relevant authorities and to be seeking to apply them. There is no need for them to be referred to specifically, unless it was clear from their language that they had failed to do so: see AA (Nigeria) v Secretary of State for the Home Department [2020] EWCA Civ 1296 at paragraph [34];
(vi) it is of the nature of assessment that different tribunals, without illegality or irrationality, may reach different conclusions on the same case. The mere fact that one tribunal has reached what might appear to be an unusually generous view of the facts does not mean that it has made an error of law: see MM (Lebanon) Secretary of State for the Home Department [2017] UKSC 10 at paragraph [107].”
20. Section 117C of the Nationality, Immigration and Asylum Act 2002 says:
“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.”
Discussion
21. On its face, the FTT’s decision seemed thorough, well-structured and clearly reasoned. However, we are satisfied on closer analysis of the evidence before the judge and the treatment of the issues raised within Grounds 1 and 2 in particular, that the judge materially erred in law. We set out our reasons below.
Ground 1
22. We set out the paragraphs in which the judge raised the issue of the Family Court application in full given their centrality to this ground. It is self-evident from what the paragraph said at [9] that this issue was potentially determinative of the appeal before the FTT2.
23. The judge’s reasoning for rejecting the genuineness of the Family Court application appeared to focus entirely on the timing of it and the appellant’s explanation as to why he did not make an application earlier. In so doing, the judge addressed the applicant’s evidence about that. However, the judge did not make any reference to other parts of the evidence which demonstrated that since the suspension of contact with Child B in 2016, the appellant has either tried to or expressed a wish to resume his contact with her.
24. In fact, there is considerable evidence in the medical evidence to this effect. Dr Nsoh had been provided with the appellant’s GP records and made relevant comment on the content of that report. Of relevant note to this issue Dr Nsoh noted the appellant’s account that he had struggled to gain custody of Child B following the break-up [4.8] and this was when his mental health problems started [4.9]. Dr Nsoh cross-referenced to page 5 of the appellant’s medical notes and noted that at this time he had thoughts of ending his life [6.1]. She further noted there was an improvement in August 2017 because he had made some progress with custody of his daughter [6.3].
25. Furthermore, analysis of the GP notes themselves affords more detail. In early 2017 the appellant reported that his mental health had been adversely affected because he had been stopped from seeing Child B and he could not raise the funds to go through the courts, he did not qualify for legal aid and his family had financial issues so could not talk to them; by March 2017 he had found a new solicitor and hoping to get access; whilst in prison on 13 March 2019 he was noted as saying he would like to have contact with Child B but would need to make some lifestyle choices first; on 20 March 2019 that he is paying child maintenance and, before this prison sentence, he was doing a course to allow for direct contact - at the moment it is indirect only; on 21 May 2019 he was noted as starting to work with PACT3 which was also supporting his mother to have access to Child B and he is keen to complete courses to assist him getting access; there was reference in June 2019 to a court case which reads as if it relates to Child B but it is redacted.
26. The other reference to the motivation for contact is in the report of the Independent Social Worker (“ISW”) which noted that the appellant’s partner is very keen on the appellant obtaining contact with Child B so they can promote the sibling relationship between child A and Child B [HB86].
27. This evidence was all before the judge. On its face, it corroborates the appellant’s evidence that he had indirect contact through court proceedings; that his ex-partner obstructed it; that he struggled to progress this due to his imprisonment [HB52-53]. His mother’s evidence was to the same effect [HB70].
28. Mr Pipe accepted that it was open to the judge to find the Family Court application not to be genuine, but submitted it was not open to the judge to do so without explaining why the aforementioned evidence did not support a finding that the application was genuine.
29. We start by reminding ourselves that the judge’s reasons do not have to be lengthy to be adequate. But we are firmly driven to the conclusion here that, given the centrality of this issue to the outcome of the appeal, it was incumbent on the judge to explain clearly what she made of the evidence which pre-dated (by some margin) the actual application to the Family Court. It was necessary for the judge to do that because there is evidence therein as to the difficulties the applicant had with progressing contact with Child B. That corroborated his evidence that his application was not opportunistic and that there were reasons which made it difficult for him to proceed earlier. If the judge took a different view, it was necessary to explain why that was so.
30. For the above reasons, Ground 1 is made out and is clearly material to the outcome of the appeal.
Ground 2
31. This ground requires a more detailed evaluation of the medical report in order to fully understand why the Judge fell into error in her treatment of the medical evidence and the potential impact that has on the finding that there are not very significant obstacles to the appellant’s reintegration into Poland.
32. Dr Nsoh made a number of particular striking observations and findings in her report about the appellant’s risk of suicide and the fragility of his mental health.
33. Dr Nsoh noted relevant entries in the appellant’s GP notes. In June 2016, the GP noted the appellant had thoughts of ending his life through hanging or electrocution [6.1]; his mental health deteriorated after he was assaulted [6.4], upon his first experience of prison in 2018 [6.5] and then upon the making of the deportation order in 2024 [6.6]; Dr Nsoh concluded his mental health has declined steadily since 2016 [6.7].
34. His presentation to Dr Nsoh gave rise to a diagnosis of a “moderate to severe depressive episode, recurrent, without psychotic symptoms” [7.1] including thoughts of suicide and death [7.2]. At [10.1] the appellant was able to precisely explain to Dr Nsoh how he would kill himself if the outcome of the proceedings was deportation [12.1]; that if he had to return to Poland, being away from Child A and partner “would mean a cessation of his purpose to his existence” and that death would be preferable [13.1]. At [14.1] Dr Nsoh said “he is at high risk of completing suicide if sent to Poland”. At [15.2] Dr Nsoh noted that the appellant’s mental health problems started when he was separated from his child (Child B). At [16.2] that his mental health would “significantly deteriorate the moment he is told that he is to go back to Poland” and that it is likely he could “carry out a very drastic decision such as ending his life”. This was reiterated again at [19.3].
35. We were struck by this evidence. It is unusual in our experience to see evidence in quite so clear terms from a health professional and with such a fully formed plan articulated by a person.
36. The judge dealt with this evidence at [23]-[24] as follows:
“23. Considering the Appellant’s mental health, I take note of the Appellant’s statement. That states that the Appellant does not know the medical system in Poland. The Appellant states he is suicidal and on a suicide watch list. The report of Dr Nsoh, on which I place weight, indicates that the Appellant is likely to face a deterioration in his mental health on return. I accept that is likely to be true. The Appellant states that this may prevent him accessing treatment overseas.
24. The Appellant does have connections with Poland, his parents lived there previously and have visited Poland since coming to the UK. The Appellant’s parents can assist in integration, registering the Appellant with appropriate medical professionals and providing support to the Appellant when he first arrives in Poland, and I find that the Appellant would be able to avail himself to the medical system and get support from his family members in doing so.”
37. Having attached weight to Dr Nsoh’s report and having apparently accepted the conclusions therein, we are firmly of the view that the judge’s treatment of it was inadequate. Saying the appellant’s mental health would deteriorate fails to reflect what Dr Nsoh also said would constitute that deterioration, namely the likelihood of completed suicide upon the appellant being told he is to be deported and/or upon return to Poland.
38. We pause here to note that the judge recorded the appellant’s evidence that the family he has in Poland want nothing to do with him [18]. There appeared to be no challenge to that evidence, and the judge did not question it. Accordingly, the only inference to be drawn from the judge’s reference to the appellant’s family at [24] is that it is the UK family the judge had in mind. This appears to accord with her reference to the appellant’s ‘parents’ and the judge’s finding here appears to stem from the evidence that the parents have visited Poland since they relocated to the UK so they can assist him. This was not the evidence before the FTT – quite the opposite (see [25]-[26] of the appellant’s mother’s witness statement).
39. Accordingly, we are satisfied that it was not open to the judge to find that the appellant’s mental health could be managed in Poland without engaging with the detail of the medical evidence as to the extent to which his mental health was likely to deteriorate, or the evidence before her that he would be returning to Poland without family support. On its face, the judge’s decision that the appellant would not face very significant obstacles to his reintegration into Poland is irrational and, at the very least, it is inadequately reasoned.
40. This clearly is a material error given that if there were ‘very significant obstacles’ to the appellant’s reintegration, he would have been able to meet Exception 1, and his deportation would not be required. Ground 2 is made out.
Disposal
41. Given that Grounds 1 and 2 are made out, it is not necessary to decide Ground 3. The errors already identified are such that the decision is to be set aside.
42. There were very few findings of fact made, and the main one there was (the non-genuine nature of the Family Court application) is infected by an error of law. Accordingly, we are satisfied a de novo hearing is required at which relevant findings of fact are to be made and the law applied accordingly. At this stage we simply note that the Court of Appeal has recently considered the interplay between concurrent Family Court and immigration proceedings in Ahmed v Secretary of State for the Home Department [2026] EWCA Civ 509. The disposal of the appeal, at this stage, would also need to deal with the ‘EA’ appeal.
43. We have given consideration to where the remaking of the appeal should take place. In light of the Court of Appeal’s decision in AEB v SSHD [2022] EWCA Civ 1512, the decision in Begum (Remaking or remittal) Bangladesh [2023] UKUT 00046 (IAC) and para. 7.2 of the Senior President’s Practice Statements, and having regard to the need for fact-finding (which will be mainly on the nature of the Family Court application, the appellant’s mental health and the circumstances which he will face in Poland including family support), we find the appropriate course is for the appeal to be remitted to the FTT for re-making de novo.
Notice of Decision
The decision of the First-tier Tribunal contains material errors of law and is set aside.
The appeal is remitted to the First-tier Tribunal to be re-made by a different judge.

SJ Rastogi
Judge of the Upper Tribunal
Immigration and Asylum Chamber

12 May 2026