Tribunal decisions

The decision

IN THE UPPER TRIBUNAL
IMMIGRATION AND ASYLUM CHAMBER Case Nos: UI-2025-005674
UI-2025-005675
First-tier Tribunal Nos: HU/00210/2025
EA/02613/2024

THE IMMIGRATION ACTS

Decision & Reasons Issued:

On 22nd of April 2026

Before

UPPER TRIBUNAL JUDGE HOFFMAN

Between

SECRETARY OF STATE FOR THE HOME DEPARTMENT
Appellant
and

TOMASZ HENRYK ARENDT
(NO ANONYMITY ORDER MADE)
Respondent

Representation:
For the Appellant: Mr M Sheikh, Senior Home Office Presenting Officer
For the Respondent: Ms S Akinbolu of Counsel, instructed by Duncan Lewis

Heard at Field House on 2 April 2026

DECISION AND REASONS

1. The Secretary of State appeals with permission against the decision of First-tier Tribunal Judge Manyarara (“the judge”) promulgated on 15 August 2025. In that decision, the judge allowed Mr Arendt’s appeals against the decision dated 28 January 2025 to refuse his human rights claim in the context of his deportation to Poland, which would also have the effect of cancelling his indefinite leave to remain granted under the EU Settlement Scheme (EUSS).
2. For continuity, I will continue to refer to the parties as they were before the First-tier Tribunal, although it is the Secretary of State who is the appellant in the appeal before the Upper Tribunal. Therefore, Mr Arendt will be referred to as the appellant and the Secretary of State as the respondent.
Background
3. The appellant is a citizen of Poland born on 29 March 1991. He arrived in the UK on 2 September 2004 to join his parents. He was granted indefinite leave to remain under the EUSS on 21 April 2020.
4. On 17 September 2024, the appellant was convicted of causing death by careless/inconsiderate driving and on 31 October 2024 he was sentenced to nine months’ imprisonment. As a consequence, on 11 November 2024, the respondent notified the appellant that he was liable to deportation. In response, the appellant sent representations to the Home Office explaining why he should not be deported. However, on 28 January 2025 the respondent refused the appellant’s human rights claim and confirmed that he remained subject to a decision to make a deportation order. The appellant was granted rights of appeal against the refusal of his human rights claim as well as the cancellation of his indefinite leave to remain under the EUSS.
The appeal to the First-tier Tribunal
5. The appellant’s appeals were heard on 21 July 2025. In a decision promulgated on 15 August 2025, the judge considered whether the appellant satisfied any of the statutory exceptions to the public interest in deportation set out in s.117C of the Nationality, Immigration and Asylum Act 2002 (“the 2002 Act”). She found that the appellant met the private life exception (Exception 1), on the basis that he had lived in the United Kingdom for most of his life, was socially and culturally integrated here, and would face very significant obstacles to re‑establishing himself in Poland. The judge also found that the appellant met the family life exception (Exception 2), concluding that it would be unduly harsh either for his partner and children to return to Poland with him or for them to remain in the United Kingdom without him. Although it was unnecessary to do so in light of those findings, the judge went on to consider whether, pursuant to s.117C(6), there were very compelling circumstances in the appellant’s case over and above Exceptions 1 and 2. She concluded that there were, taking into account the same factors relevant to her assessments under Exceptions 1 and 2, together with her findings that the appellant had previously been of good character and that it was unlikely he would reoffend. The appellant’s appeals were accordingly allowed.
The appeal to the Upper Tribunal
6. The respondent was granted permission to appeal by Upper Tribunal Judge Perkins on 2 February 2026.
7. In essence, the respondent advances a single ground of appeal, namely that the judge made material misdirections of law and/or gave inadequate reasons in concluding that Exceptions 1 and 2 were met and that there were very compelling circumstances for the purposes of s.117C(6).
The hearing
8. I had before me: the 427-page consolidated bundle prepared by the respondent; and the appellant’s Rule 24 response dated 16 March 2026.
9. On behalf of the respondent, Mr Sheikh submitted that, in relation to Exception 1, he accepted that the judge made proper findings on the first two limbs of the test but argued that her conclusion that there were very significant obstacles to the appellant’s integration in Poland was inadequately reasoned. While the judge correctly directed herself to the relevant legal principles, it was submitted that she reached a bare conclusion on the obstacles the appellant would face on return without sufficient analysis. Particular reliance was placed on the Court of Appeal’s decision in Ackom v Secretary of State for the Home Department [2025] EWCA Civ 537. Mr Sheikh argued that the judge failed to engage with factors such as the appellant’s nationality, language skills, familiarity with Polish society, transferable employment skills, and access to benefits in what is an EU country.
10. In respect of Exception 2, Mr Sheikh submitted that the judge failed to explain why deportation would result in consequences that were “unduly harsh” for the appellant’s partner or children. He argued that there was no sufficiently reasoned analysis of why the family could not reintegrate in Poland, given their knowledge of the language and heritage, nor of the alternative scenario in which the children remained in the United Kingdom with their mother and the support of an extended family network. The reasoning was said to fall short of the elevated threshold required by statute. Finally, in relation to s.117C(6), the respondent relied on the contention that the judge’s assessment merely repeated matters already considered under Exceptions 1 and 2 and failed to identify properly what constituted very compelling circumstances over and above those exceptions.
11. On behalf of the appellant, Ms Akinbolu submitted that the respondent’s appeal amounted to no more than a disagreement with the judge’s factual findings and evaluative conclusions. She emphasised that the judge had carefully directed herself to the relevant statutory framework and case law and had made unchallenged factual findings which formed the proper starting point for her analysis. In relation to Exception 1, it was submitted that the judge had properly addressed the test in Secretary of State for the Home Department v Kamara [2016] EWCA Civ 813, taking into account the appellant’s length of residence, absence of family ties in Poland, and the fact that he would be returning as an outsider after many years away. It was argued that the respondent’s reliance on access to benefits and societal structures in Poland was misplaced, as no evidence had been adduced to show that such factors would in fact mitigate the appellant’s difficulties on return.
12. As to Exception 2, Ms Akinbolu submitted that the judge’s reasoning on undue harshness was clear and adequately explained, particularly in relation to the impact on the children. She relied on findings concerning the eldest daughter’s previous emotional difficulties during the appellant’s imprisonment, her established private life and educational progress, and the evidence from the independent social worker and school. Although another judge might have reached a different conclusion, it was submitted that the conclusion reached was plainly one that was open to the judge. The “stay” scenario had been considered by reference to the impact of the appellant’s previous absence, and the respondent’s assertion that the partner could rely on wider family support failed to engage properly with the judge’s findings. Finally, Ms Akinbolu submitted that the judge had conducted a proper balancing exercise under s.117C(6), taking into account the seriousness of the offence, remorse, rehabilitation, and the cumulative impact on the family, and had identified features going beyond the statutory exceptions. The conclusion that deportation would be disproportionate was therefore sustainable and disclosed no error of law.
13. Having heard submissions from both parties, I reserved my decision.
Legal framework
14. Section 117C of the 2002 Act governs the deportation of foreign criminals and sets out the public interest considerations. The general principle is that the deportation of foreign criminals is in the public interest (s.117C(1)) and where a person has been sentenced to less than four years’ imprisonment, the public interest requires deportation unless one of the statutory exceptions applies (s.117C(3)).
15. Where a person has been sentenced to at least four years’ imprisonment, deportation is required unless there are very compelling circumstances over and above those described in Exceptions 1 and 2 (s.117C(6)). Exception 1, which relates to private life, is set out under s.117C(4). It applies where the person has been lawfully resident in the UK for most of their life, is socially and culturally integrated, and there would be very significant obstacles to integration in the country of return. Exception 2, which relates to family life, is set out under s.117C(5). It applies where the person has a genuine and subsisting relationship with a qualifying partner or child, and the effect of deportation on that partner or child would be unduly harsh.
16. The burden is on the appellant to prove the facts of their case applying the civil standard of balance of probabilities. The relevant date is the date of the hearing.
Discussion – Error of Law
17. In order to succeed with her appeal, the respondent acknowledges that she must identify a material error of law in relation to all three aspects of the judge’s decision, i.e. Exception 1, Exception 2 and very compelling circumstances.
18. I am mindful that this Tribunal should not interfere with the decision of the First-tier Tribunal merely because it might have reached a different conclusion on the facts. The role of this Tribunal is not to re-try the case but to determine whether the decision under challenge involved the making of a material error of law. As emphasised in Volpi v Volpi [2022] EWCA Civ 464 at [2] to [3], findings of fact are entitled to respect and should only be disturbed where they are vitiated by legal error, such as a failure to apply the correct test, a misdirection, or inadequate reasoning that prevents the losing party from understanding why they lost. It is against that standard that I have assessed the merits of the respondent’s appeal.
Exception 1
19. I am satisfied that despite her extensive citation of the relevant case law, the judge’s reasoning in relation to the private life exception is inadequate so far as it concerns her assessment of whether there would be very significant obstacles to the appellant’s reintegration in Poland.
20. The judge’s findings in respect of the very significant obstacles test are addressed only briefly at [72]. While the judge was entitled to take into account the fact that the appellant had not lived in Poland since he was 13 years old and no longer had immediate family living there, it is difficult to understand the rationale for her conclusion that he would be an outsider on return or why, even taken cumulatively, those things would amount even to significant obstacles, let alone very significant obstacles. As Mr Sheikh submitted, the appellant spent the first 13 years of his life in Poland, he speaks Polish, is in good health, will have some familiarity with Polish society, as well as transferable employment skills. The judge does not engage with any of those matters. Accordingly, while the judge properly directed herself at [71] that the exercise required a broad evaluative judgment, that direction is not reflected in the analysis undertaken by her.
Exception 2
21. The judge’s reasoning in relation to the “unduly harsh” test is also comparatively brief. In considering the consequences of deportation for the appellant’s two daughters, at [79] the judge took into account that they were unable to communicate in Polish (although they understood some words) and found that they would be unable to integrate into the Polish education system. At [80], the judge found that the children had lived nowhere other than the United Kingdom, had “no meaningful connection to Poland”, and that the evidence demonstrated that the eldest daughter had “suffered in the absence of her father” during his period of imprisonment, to the extent that she required monitoring and support from the school’s wellbeing team. The youngest daughter was also said to have been distressed and to have struggled with the separation. On that basis, the judge concluded at [81] that it would be unduly harsh either for the children to remain in the United Kingdom without the appellant or to relocate to Poland with him.
22. I accept the respondent’s submission that, in applying the unduly harsh test, the judge’s reasoning fails adequately to explain what, precisely, about the children’s circumstances would result in consequences going beyond those that are even “severe, or bleak” under either the “stay” or the “go” scenarios: see MK (section 55 - Tribunal Options) Sierra Leone [2015] INLR 563 at [46] as endorsed by the Supreme Court in KO (Nigeria) v Secretary of State for the Home Department [2018] UKSC 53 at [27] and HA (Iraq) v Secretary of State for the Home Department [2022] UKSC 22 at [43].
23. It is unsurprising that the appellant’s children would be distressed by his imprisonment and, by analogy, by any further separation resulting from their father’s return to Poland without them. Sadly, that is an inevitable consequence of deportation. Something more was therefore required to demonstrate that the elevated unduly harsh threshold was met in the context of the “stay” scenario. Furthermore, as Mr Sheikh submitted, despite finding at [83] that their mother’s side of the family in the United Kingdom were close-knit, the judge fails to consider what support, if any, they could provide to the children (and their mother) were the appellant to return to Poland without them.
24. As regards the “go” scenario, the judge also took into account that the children have lived only in the United Kingdom and made a finding that they are unable to communicate in Polish. However, it is difficult to discern why those factors, whether taken individually or cumulatively, would meet the elevated threshold. It is not unusual for children to relocate abroad with their parents, including to countries where they do not speak the language, and to adjust to life there. In the present case, the children would have the support of their parents, both of whom are Polish nationals and are Polish speakers, and the children were found to have at least some understanding of the language, yet, as Mr Sheikh submitted, the judge did not take these matters into account.
25. In respect of the appellant’s partner, the judge noted at [82]–[83] that she had arrived in the United Kingdom in 2011 at the age of sixteen, had a close‑knit family in this country, and had no ongoing connection to Poland, which, like the appellant, she had visited only once since leaving. The judge also accepted that the partner suffered from sciatica which had been exacerbated by the stress arising from the appellant’s imprisonment, rendering her unable to work and requiring support from her eldest daughter. She had also sought counselling to assist her in coping with the difficulties faced by the family. At [84], the judge took into account the oral evidence of the appellant’s parents, who confirmed that they had provided practical and financial support to their daughter during the appellant’s absence. The judge concluded that, taken cumulatively, these matters demonstrated that it would be unduly harsh for the partner either to remain in the United Kingdom without the appellant or to return to Poland with him.
26. With regard to the “stay” scenario, the judge was entitled to place weight on the fact that the partner suffers from sciatica and mental health issues following the appellant’s imprisonment. Nevertheless, it is unclear from her reasoning why it would be unduly harsh for the partner to remain in the United Kingdom when it had also been accepted that she receives support from her close-knit family in the country and is in receipt of medical support, including counselling.
27. Moreover, the judge’s findings in respect of the “go” scenario are insubstantial. The only discernible reasons identified at [84] for concluding that it would be unduly harsh for the partner to return to Poland with the appellant are that she has a close‑knit family in the United Kingdom and that she has not lived in Poland since childhood. It is difficult to see how those factors, without more, suffice to meet the elevated threshold. No consideration is given to the fact that the partner’s primary family unit is with her husband and children or to the support the appellant could provide to his partner and their children in Poland. Nor is any explanation offered as to why it would be unduly harsh for a Polish national, who speaks the language and lived in Poland until the age of 16, to relocate there with her immediate family.
28. For these reasons, I am satisfied that the judge’s findings in respect to Exception 2 are inadequately reasoned.
Very compelling circumstances
29. In considering s.117C(6), the judge gave more extensive reasons, taking into account matters such as the seriousness of the appellant’s offending and the risk of reoffending. Her findings on those matters are not challenged. However, she again relied on the same findings made in relation to Exception 1 ([106]) and Exception 2 ([107]–[108]). Although the judge expanded upon her assessment of the children’s circumstances at [109]–[113], with reference to the independent social worker’s report and the headteacher’s letter, that discussion is directed to the children’s best interests rather than to the unduly harsh consequences test and it does not materially add to the earlier findings. I am therefore satisfied that the judge’s reliance on the same insufficient reasoning underpinning her conclusions on Exceptions 1 and 2 means that her findings in respect of the “very compelling circumstances” test are likewise vitiated.
Disposal
30. Both parties were in agreement that if a material error of law was found, the appeal should be remitted to the First-tier Tribunal for a de novo hearing.
31. I remind myself that there is a presumption that an appeal should be retained by the Upper Tribunal unless the proceedings before the First-tier Tribunal were tainted by procedural unfairness, or the nature or extent of the fact‑finding required to remake the decision would be extensive. In the present case, as none of the judge’s findings are capable of being preserved, the case would indeed have to be heard de novo. Taking into account the number of witnesses who appeared before the First-tier Tribunal, that would inevitably require the judge to hear extensive evidence. Therefore, applying paragraph 7.2 of the Practice Statements of the Immigration and Asylum Chambers of the First-tier Tribunal and the Upper Tribunal, I am satisfied that the appeal should be remitted to the First-tier Tribunal for rehearing.
Notice of Decision
The decision of the First-tier Tribunal is vitiated by a material error of law and is set aside.
The appeal is to be remitted to the First-tier Tribunal at Taylor House to be heard by any judge other than Judge Manyarara.

M R Hoffman

Judge of the Upper Tribunal
Immigration and Asylum Chamber

17th April 2026