Tribunal decisions

The decision

IN THE UPPER TRIBUNAL
IMMIGRATION AND ASYLUM CHAMBER Case No: UI-2025-005723
First-tier Tribunal No: HU/63170/2023

THE IMMIGRATION ACTS

Decision & Reasons Issued:

On 26th of May 2026

Before

UPPER TRIBUNAL JUDGE HOFFMAN

Between

SECRETARY OF STATE FOR THE HOME DEPARTMENT
Appellant
and

EMMANUEL CHUKWUNONSO IKE
(NO ANONYMITY ORDER MADE)
Respondent

Representation:
For the Appellant: Mr J Nappey, Senior Home Office Presenting Officer
For the Respondent: Mr A Jafar of Counsel, instructed by Graceland Solicitors

Heard at Field House on 31 March 2026

DECISION AND REASONS
1. The Secretary of State appeals with permission against the decision of the First-tier Tribunal promulgated on 24 November 2025 allowing Mr Ike’s appeal against a decision to deport him from the United Kingdom.
2. While it is the Secretary of State who is the appellant in this matter, for consistency, I will refer to the parties as they were before the First-tier Tribunal. Therefore, the Secretary of State will be referred to as the respondent and Mr Ike as the appellant.
Anonymity
3. While the hearing list anonymised the appellant, this appears to have been the result of an administrative error in the Upper Tribunal. No anonymity order was made by the First-tier Tribunal or the Upper Tribunal, and no application for anonymity has been made by the appellant. Having read the papers, I can see no rational basis on which to grant the appellant anonymity. That he has children is not itself a sufficient reason. I attach significant weight to the public interest in open justice, especially in cases involving foreign national offenders, and, in the present case, I am satisfied that it would be inappropriate to grant the appellant anonymity.
Background
4. The appellant is a national of Nigeria, born in 1975. On 15 December 2010, he was granted a visit visa valid until 15 June 2011. He entered the UK but failed to leave on expiry of his visa, thereafter remaining in the country unlawfully. On 28 August 2012, he applied for an EEA residence card, which was refused on 22 January 2013. On 25 February 2016, he was served with notice that he was liable to removal as an overstayer. He applied for leave to remain on human rights grounds on 1 March 2016; this was refused and certified as clearly unfounded on 22 March 2016. He subsequently made an asylum claim, which was rejected and certified on 18 October 2016.
5. On 27 June 2019, the appellant applied for indefinite leave to remain, which was refused on 11 January 2020. He also applied for naturalisation as a British citizen on 28 June 2019; that application was treated as invalid on 11 January 2020. On 5 November 2020, he applied for leave to remain on family and private life grounds.
6. On 4 November 2021, the appellant was convicted at Aberdeen Sheriff Court of being concerned in the supply of a controlled drug, and on 24 January 2022 he was sentenced to 18 months’ imprisonment. As a result of that conviction, he was served on 31 July 2022 with notice of the respondent’s intention to deport him to Nigeria. His representatives made human rights submissions on his behalf on 11 August 2022, relying on his relationship with his partner, their three children, and his partner’s child from an earlier relationship. On 30 October 2023, the respondent rejected his human rights claim and made a deportation order against him. The appellant was granted a right of appeal against that decision.
The appeal to the First-tier Tribunal
7. In her decision of 24 November 2025, the First-tier Tribunal judge allowed the appellant’s appeal on human rights grounds. In reaching her decision, the judge considered that the appellant’s deportation would have unduly harsh consequences for his partner, three children and stepdaughter. Furthermore, the judge also found that there were very compelling circumstances to the appellant’s case that outweighed the public interest in his deportation.
The appeal to the Upper Tribunal
8. On 19 January 2026, Upper Tribunal Judge Rimmington granted the respondent permission to appeal the First‑tier Tribunal’s decision on the sole pleaded ground: that the judge failed to provide adequate reasons for concluding that the appellant’s deportation would have unduly harsh consequences for his partner, children, and stepdaughter, or for finding that there were very compelling circumstances in his case.
The legal framework
9. The deportation of foreign national offenders is governed by the UK Borders Act 2007. Section 32 provides for the automatic deportation of foreign criminals sentenced to at least 12 months' imprisonment. Section 33 sets out the exceptions to automatic deportation. For the purposes of the present appeal, this includes where the person’s deportation would breach their rights under the European Convention on Human Rights (“ECHR”): see s.33(2)(a).
10. When considering Article 8 ECHR appeals raised by foreign criminals, s.117A of the Nationality, Immigration and Act 2002 (“the 2002 Act”) requires judges to have regard to the contents of ss.117B and 117C. The latter provision applies specifically to cases involving the deportation of foreign criminals:
Section 117C Article 8: additional considerations in cases involving foreign criminals
(1) The deportation of foreign criminals is in the public interest.
(2) The more serious the offence committed by a foreign criminal, the greater is the public interest in deportation of the criminal.
(3) In the case of a foreign criminal (“C”) who has not been sentenced to a period of imprisonment of four years or more, the public interest requires C's deportation unless Exception 1 or Exception 2 applies.
(4) Exception 1 applies where—
(a) C has been lawfully resident in the United Kingdom for most of C's life,
(b) C is socially and culturally integrated in the United Kingdom, and
(c) there would be very significant obstacles to C's integration into the country to which C is proposed to be deported.
(5) Exception 2 applies where C has a genuine and subsisting relationship with a qualifying partner, or a genuine and subsisting parental relationship with a qualifying child, and the effect of C's deportation on the partner or child would be unduly harsh.
(6) In the case of a foreign criminal who has been sentenced to a period of imprisonment of at least four years, the public interest requires deportation unless there are very compelling circumstances, over and above those described in Exceptions 1 and 2.
(7) The considerations in subsections (1) to (6) are to be taken into account where a court or tribunal is considering a decision to deport a foreign criminal only to the extent that the reason for the decision was the offence or offences for which the criminal has been convicted.
11. For the purposes of Exception 2, the meanings of “qualifying partner” and “qualifying child” are defined under s.117D(1):
(1) In this Part—
“Article 8” means Article 8 of the European Convention on Human Rights;
“qualifying child” means a person who is under the age of 18 and who—
(a) is a British citizen, or
(b) has lived in the United Kingdom for a continuous period of seven years or more;
“qualifying partner” means a partner who—
(a) is a British citizen, or
(b) who is settled in the United Kingdom (within the meaning of the Immigration Act 1971 – see section 33(2A) of that Act).
12. 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.
The hearing
13. I heard submissions from both advocates, which are recorded in the record of proceedings, and at the conclusion of the hearing I reserved my decision.
14. Following the hearing, while reviewing the appellant’s evidence bundle from the First-tier Tribunal – which had not been incorporated into the respondent’s consolidated bundle – I noted that the appellant’s three biological children were all Nigerian citizens under the age of seven and therefore did not meet the definition of a “qualifying child” under s.117D(1) of the 2002 Act, i.e., they are neither British citizens nor have they lived in the UK for a continuous period of seven years or more. It also appeared that the appellant’s partner holds limited leave to remain and therefore does not meet the definition of a “qualifying partner” under the same provision, as she is neither a British citizen nor a person settled in the UK within the meaning of the Immigration Act 1971. If correct, their circumstances would not fall for consideration under s.117C(5) of the 2002 Act (Exception 2).
15. This issue was not raised before the First-tier Tribunal, nor was it advanced as a ground of appeal by the respondent. Nevertheless, given that judges are mandated to apply the provisions of Part 5A of the 2002 Act – including ss.117C and 117D – I considered that it would be inappropriate to determine the appeal without first giving the parties the opportunity to make submissions on the matter. I therefore issued directions on 20 April 2026, requiring the parties to file submissions addressing the following questions:
i. whether the appellant’s partner and biological children meet the definitions of “qualifying partner” and “qualifying child” under s.117D(1) of the 2002 Act;
ii. whether this is an issue that may properly be considered by the Upper Tribunal in circumstances where it was not raised in the grounds of appeal on which permission was granted; and, if so,
iii. to what extent it is material.
The parties were also given the opportunity to request a further hearing.
16. The respondent filed her submissions on 22 April 2026 and the appellant’s reply was received on 6 May 2026. The respondent did not file a further response.
Documents
17. In reaching my decision, I have had regard to the following documents: the respondent’s 157‑page consolidated bundle; Mr Jafar’s skeleton argument dated 30 March 2026; and the appellant’s First-tier Tribunal bundle, which was omitted from the consolidated bundle.
Discussion
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.
Whether the appellant’s partner and biological children are qualified
19. In their post-hearing written submissions, both parties accept that the judge erred in considering the circumstances of the appellant’s partner and his three biological children under Exception 2, on the basis that none met the definitions contained in s.117D(1).
20. In the respondent’s submissions, Mr Nappey acknowledged that this issue was not raised in the grounds of appeal on which permission was granted. He explained that it was not addressed in the decision dated 30 October 2023 because the respondent did not accept that the appellant had a genuine and subsisting relationship with his partner and children. Nevertheless, he submits that the issue was one of principle which was before the First-tier Tribunal and ought to have been resolved by the judge. Mr Nappey further contends that both parties bore an obligation to identify the issue correctly before the First-tier Tribunal. That may be so; however, it does not excuse the failure of the presenting officer to raise the point at that stage, nor does it explain the omission by the senior presenting officer who drafted the grounds of appeal.
21. The respondent’s written submissions further contend that, notwithstanding the failure to raise the issue in the grounds of appeal, the Upper Tribunal retains the power to consider it under its general case management powers.
22. In reply, Mr Jafar submits that, absent exceptional circumstances, the Tribunal should not engage with an issue overlooked by the respondent. He relies on the respondent’s failure to include the appellant’s First-tier Tribunal evidence bundle in the Upper Tribunal hearing bundle; however, that point is immaterial. The true failure is that of the respondent’s representatives to identify the issue both before the First-tier Tribunal and when settling the grounds of appeal. Mr Jafar also submits that the question whether the appellant’s partner and children were qualifying persons for the purposes of s.117C(5) was not an “obvious controversial point” which the judge was required to identify (see Lata (FtT: principal controversial issues) [2023] UKUT 00163 (IAC)). I disagree. Irrespective of whether the parties identified the issue, the judge was under a statutory obligation to apply Part 5A of the 2002 Act correctly. Section 117A(2) provides:
“In considering the public interest question, the court or tribunal must (in particular) have regard—
(a) in all cases, to the considerations listed in section 117B, and
(b) in cases concerning the deportation of foreign criminals, the considerations listed in section 117C.” (Underlining added)
It is trite that the judge was required to apply s.117C in accordance with the law. In applying subsection (5), she was required to be satisfied that the appellant’s partner and children were “qualifying” within the meaning of s.117D(1). The judge ought to have been familiar with the relevant criteria. The evidence before her indicated that the appellant’s biological children were neither British citizens nor, given their ages, had they resided in the United Kingdom for a continuous period of seven years or more. There was also evidence that the appellant’s partner was a Nigerian citizen with limited leave to remain and therefore neither a British citizen nor a settled person.
23. Turning to Mr Nappey’s submission that the Tribunal has jurisdiction, under its general case management powers, to entertain a ground not advanced by an appellant, I am not persuaded that is correct. Neither party’s post-hearing submissions make reference to the “Robinson obvious” test: see R (Robinson) v Secretary of State for the Home Department [1998] QB 929. The principle articulated in that case has recently been summarised by the Court of Appeal in AL v Secretary of State for the Home Department [2026] EWCA Civ 370, at [68]-[69]:
“68. The appellate authorities are not obliged to search for new points, this court said. ‘If there was a readily discernible and obvious point of Convention law which favours the applicant although he has not taken it, then the special adjudicator should apply it in his favour, but he should feel under no obligation to prolong the hearing by asking the parties for submission on points which they have not taken but which could properly be categorised as “merely arguable” as opposed to “obvious”. Similarly, if when the tribunal reads the special adjudicator’s decision there is an obvious point of Convention law favourable to the asylum-seeker which does not appear in the decision, it should grant leave to appeal. If it does not do so there is a danger that this country will be in breach of its obligations under the Convention. When we refer to an obvious point, we mean a point which has strong prospects of success if it is argued. Nothing less will do’ (paragraph 946B-D).
69. The principle in Robinson is a narrow principle. It is limited to points of refugee law which favour a person who claims to be a refugee, and which are ‘obvious’ and arguable with ‘strong prospects of success’. The reason for that principle is that it is necessary to enable the United Kingdom to comply with its obligations under the Refugee Convention.”
24. In the present case, it is beyond doubt that the judge’s error is obvious. However, it does not arise in the context of a Refugee Convention claim, nor does it operate in the appellant’s favour. I recognise that the authorities are not entirely consistent as to the scope of the Robinson principle. For example, some panels of the Court of Appeal have confined its operation to points benefiting an appellant (George v Secretary of State for the Home Department [2024] EWCA Civ 1192 at [75]), whereas others have suggested that the Secretary of State may, in certain circumstances, rely on it (see the obiter observations in SA v Secretary of State for the Home Department [2025] EWCA Civ 357 at [45]–[46]). In any event, the present error arises in the context of the respondent’s obligations under the ECHR, and the courts have not extended the Robinson principle that far (see GH (Afghanistan) v Secretary of State for the Home Department [2005] EWCA Civ 1603 at [17]).
25. In my view, it is undesirable for the Upper Tribunal to be placed in a position where it must overlook a clear error in the application of statutory provisions which a judge is required to consider. That is particularly so where, as here, the issue concerns the deportation of a foreign national offender, a matter of considerable public interest.
26. However, the proper course would have been for the respondent to make a renewed application for permission to appeal on this ground, accompanied by an application for an extension of time. That course was not taken. There is authority suggesting that an appellate court or tribunal may take a new point of its own motion where it is of general importance or where the interests of justice so require (see Miskovic v Secretary of State for Work and Pensions [2011] 2 CMLR 20 at [110]). It is, however, unnecessary for me to determine the extent to which such a principle interrelates with the Robinson test, because, for the reasons set out below, I am satisfied that the respondent succeeds on the grounds as pleaded.
The unduly harsh test
27. The respondent, in her grounds of appeal, contends that the judge’s findings that the appellant’s deportation would have unduly harsh consequences for his partner, children and step-child are insufficiently reasoned and do no more than list the “commonplace” consequences on a family where a member is removed from the country.
28. I remind myself that there is no notional comparator test: see HA (Iraq) v Secretary of State for the Home Department [2022] UKSC 22, at [40]. However, a judge is nevertheless required to explain how the particular circumstances of a case meet the elevated threshold required to demonstrate unduly harsh circumstances as articulated in the self-direction explained in MK (Section 55: Tribunal Options: Sierra Leone) [2015] UKUT 223 (IAC), as approved by the Supreme Court in KO (Nigeria) v Secretary of State for the Home Department [2018] UKSC 53 and HA (Iraq) v Secretary of State for the Home Department [2022] UKSC 22, 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…”
The Go scenario
29. In the present case, at [22], the judge recorded the appellant’s evidence that he did not wish his children to return to Nigeria with him (“the Go scenario”) because “they had a good life in the UK but in Nigeria many things could happen, including kidnap, and he did not want that to happen”. She further noted that there was no reason why the appellant would be unable to work on return, although he stated that he “did not know anyone there or have any job or home or place for the children to stay”. The appellant reiterated that he “would not allow” his children to visit him in Nigeria because they might be kidnapped and he did not wish to expose them to that risk.
30. At [23], the judge took into account the evidence of the appellant’s partner that, during his imprisonment, she was unable to work, relied on state benefits, and borrowed money from friends and family to support herself and the children. Since his release, she had worked 20 hours per week but remained in debt. At [24], the judge recorded that the partner stated she had no remaining family in Nigeria.
31. At [25], the judge noted the partner’s evidence that she would not accompany the appellant to Nigeria because her and her children’s lives were in the United Kingdom, the children had never left the country, one of them (the appellant’s stepdaughter) was British, and relocation would uproot them from their established lives.
32. The judge then considered whether it would be unduly harsh for the partner and children to return to Nigeria with the appellant. In relation to the children, the judge made the following findings at [28]:
“I am satisfied that for all of the children, leaving the country that has been the only home they have known, when they have already been uprooted once from London to Aberdeen and had to experience the sudden absence of their father / step-father and then being permitted to see him only at prison visits, of living in a household in which money was so scarce that their mother had to get into debt just to avoid them going hungry, with all the stress that entails, to go to a country with a very different culture, and a kidnap risk (as was the Appellant’s unchallenged evidence), would be unduly harsh. I consider this to be particularly the case for the Appellant’s step-child, who would in addition to the consequences experienced by her siblings, be deprived of living in the country of her nationality, with all the benefits that brings, and would be separated from her father, with whom she has in-person contact.”
33. It is unclear why the children’s experience of the appellant’s sudden absence during his imprisonment is relevant to the assessment of whether it would be unduly harsh for them to accompany him to Nigeria. Similarly, the relevance of the financial hardship arising from his imprisonment is not readily apparent in the context of relocation. Nor is it clear why their adaptation to Nigerian culture would be unduly harsh, given that both their parents are Nigerian and the appellant’s biological children are themselves Nigerian citizens.
34. As to the weight placed on the appellant’s stepdaughter and her relationship with her biological father, I agree with the respondent that, in the absence of any meaningful analysis of the nature and quality of that relationship – beyond noting that he lives in London and has some contact – it is difficult to see how the elevated threshold for undue harshness is met. In fact, there appears to be a tension between the judge’s finding at [28] that it would be unduly harsh for the stepdaughter to be separated from her biological father with the earlier finding, at [17], where the judge appears to accept that the appellant has parental responsibility for his stepdaughter because she lived in Aberdeen while her father lived in London, which implies a lack of close ties with him.
35. Furthermore, even if the appellant may have held a genuine subjective fear that his children might be kidnapped in Nigeria (and it is unclear who is said to have posed such a risk), there appears to have been no evidence before the First-tier Tribunal demonstrating that there was a real, objective risk of such an event occurring. The judge nevertheless proceeded on the basis that, because the respondent had not expressly challenged the appellant’s evidence on this point, it could be accepted as true. However, as Mr Nappey submitted, the absence of express submissions from the respondent does not amount to a concession. Moreover, a judge is not required to treat as established or uncontroversial an improbable assertion made by an appellant merely because the presenting officer did not engage with it directly. In those circumstances, I am satisfied that the appellant’s subjective belief that his children might be kidnapped in Nigeria was not a matter to which any significant weight should have been afforded in assessing whether the unduly harsh test was met.
36. The judge then considers the Go scenario in respect of the partner at [29]:
“I am satisfied also that it would be unduly harsh for the Appellant’s partner, principally because of the suffering it would cause to her children, and the anxiety it would cause to her having already suffered a great deal including through poverty, and sudden single parenthood when her partner was remanded into custody and later given a considerable custodial sentence.”
37. Again, these factors – poverty, single parenthood – relate to separation from the appellant. It is difficult to discern how these reasons are directly related to partner’s ability to continue her family life with the appellant and her children together in Nigeria, which is her home country. While I note the reference to anxiety, it is unclear why this itself meets the high threshold required to meet Exception 2. Furthermore, it is unclear what “suffering” the children would face in Nigeria.
The Stay scenario
38. The judge then goes on to consider at [31] whether it would be unduly harsh for the appellant’s partner, children and stepdaughter to remain in the United Kingdom without him (“the Stay scenario”):
“I note in particular the Appellant’s partner’s unchallenged evidence as to the profound difficulties she would face in coping with four children on her own, one of whom has health difficulties sufficiently serious that she is on a waiting list for surgery. I note she is already in serious debt, and only just beginning to address it through the money she earns from her job, which she is only able to do because the Appellant is at home with the children. I accept that if the Appellant were deported, his partner would no longer be able to work because of the lack of trusted and affordable childcare, and that previously when she could not work she had to borrow money from family, friends and on credit cards, just to get by, and because of her difficulties in paying that money back in the past, she would not be able to access that credit again. I note the difficulties she would have in taking a six-year-old child to important hospital appointments in London whilst her other three children, aged under 10, are in Scotland. I note also the emotional support the Appellant provides to the children, in person, through playing football with them and reading to them and hugging them, all of which this family have shown was so important to them that a mother and four children relocated hundreds of miles from London to Aberdeen to enable it to continue even just once a month.”
39. I am satisfied that the judge’s reasons for concluding that the elevated unduly harsh threshold is met are, again, inadequately reasoned. In particular, there is no assessment of the scale of the partner’s indebtedness, no explanation of what is meant by a lack of “trusted” childcare, and no consideration of the support mechanisms available within the United Kingdom to mitigate the risk of the children falling into poverty. Nor is there any examination of the anticipated timing of the six-year-old child’s surgery, the likelihood of any ongoing medical needs once the operation has taken place, or whether the partner would in fact need to continue residing in Aberdeen given that the appellant would no longer be imprisoned there. Furthermore, the fact that the children would be deprived of the appellant’s in-person emotional support – such as hugging, playing football, and reading to them – while undoubtedly sad, does not, without more, establish circumstances going beyond the level of harshness that could properly be described as severe or bleak.
40. For these reasons, I am satisfied that the judge’s findings as to why Exception 2 is met are inadequately reasoned.
Very compelling circumstances
41. As the judge had found that the appellant met the requirements of Exception 2, there was no need for her to go on to consider whether there were very compelling circumstances in his case. Nevertheless, the judge proceeded to find that such circumstances were present.
42. In summary, the judge acknowledged at [36] that the appellant had received a significant custodial sentence, which signified the seriousness of the offence that he committed and, consequently, there was a significant public interest in his deportation. At [37], the judge also took into account the appellant’s “irregular immigration history”, which suggested a lack of regard for immigration law. However, the judge further noted that the appellant had only a single conviction; that he had expressed remorse; and that “the shock he and his family felt at his sudden imprisonment and separation from them when he was sent to prison”, together with the stress caused by the deportation proceedings, meant that “he is highly unlikely to commit any criminal offence again.” The judge then stated at [38] that, having considered all the circumstances in the round and the “cumulative effect on the Appellant, his partner, and her four children”, there were very compelling circumstances in the case.
43. I am satisfied that the judge’s reference to “all the circumstances of the case” and to the “cumulative effect” on the appellant’s partner and her children must necessarily relate to her earlier findings in respect of Exception 2. As already explained, those findings are inadequately reasoned. Moreover, the “very compelling circumstances” test requires an appellant to identify factors “over and above” those contained within Exceptions 1 and 2. That does not mean that an appellant must meet the requirements of both Exceptions 1 and 2 before they can demonstrate very compelling circumstances; however, a judge is not expected to bypass Exceptions 1 and 2 and proceed immediately to very compelling circumstances: see Kapikanya v Secretary of State for the Home Department [2025] EWCA Civ 987 at [42].
44. In the present case, the judge made no findings in respect of Exception 1. It seems likely the appellant did not seek to rely on that provision before the First-tier Tribunal because, at the very least, he could not satisfy the criterion requiring him to have been lawfully resident in the UK for most of his life. Mr Jafar objected to this point being raised by Mr Nappey at the hearing because it had not been raised in the grounds of appeal. Mr Nappey submitted that this was not a new ground but an example of how the judge had failed to properly reason her conclusions on very compelling circumstances. On consideration, I am satisfied that the judge’s failure to consider whether or not the appellant could meet Exception 1 does amount to an example of her conclusions on the very compelling circumstances test being insufficiently reasoned. Simply put, it is unclear what circumstances the judge believed the appellant would find himself in if returned to Nigeria, and this was something relevant to the overall assessment, including his ability to support his family on return.
45. Moreover, at [43], the Court in Kapikanya endorsed the findings of Underhill LJ in Yalcin v Secretary of State for the Home Department [2024] EWCA Civ 74 regarding the approach to very compelling circumstances:
“The judgment of Underhill LJ in Yalcin demonstrates that in order to satisfy s 117(C)(6) [sic] “something more” is required than under Exception 1 or Exception 2. Underhill LJ envisages two types of case. The first is where deportation would have what in a convenient shorthand phrase he describes as an “unduly unduly harsh effect” on a qualified child or partner. The second is where the appellant can point to the combination of an unduly harsh effect on a qualifying child or partner and some other factor amounting to very compelling circumstances. Underhill LJ emphasises that a serious offender will have to surmount a higher threshold than a medium offender.”
46. In the present case, the only factor identified by the judge that lay outside Exception 2 was the appellant’s apparent rehabilitation. There was no OASys report before the First-tier Tribunal, and I am satisfied that, on the evidence available, the judge was reasonably entitled to find that the appellant posed a low risk of reoffending. Nevertheless, apart from the finding that the appellant would, in essence, be too scared of the consequences to risk committing another offence, there was no evidence of any positive rehabilitative steps undertaken by him. As the Supreme Court explained in HA (Iraq) v Secretary of State for the Home Department [2022] UKSC 22 at [58] (per Lord Hamblen, with whom the other Justices agreed), where “the only evidence of rehabilitation is that no further offences have been committed then, in general, that is likely to be of little or no material weight in the proportionality balance.”
47. In circumstances where the judge acknowledged both the seriousness of the appellant’s criminal offending and the consequent strong public interest in his deportation, as well as his disregard for UK immigration laws, it is difficult to see how the appellant’s low risk of reoffending could, as the sole addition to the factors relied upon under Exception 2, amount to very compelling circumstances. Moreover, for the reasons already given, the judge’s findings in relation to Exception 2 are themselves insufficiently reasoned, which necessarily infects the consideration under s.117C(6).
Conclusion
48. For the reasons given above, while I do not have jurisdiction to consider the judge’s erroneous application of Exception 2 to the appellant’s partner and biological children, I am nevertheless satisfied that the judge’s findings in respect of Exception 2 and very compelling circumstances are insufficiently reasoned and this amounts to a material error of law.
Disposal
49. 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.
50. 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. I am also satisfied that the extent of fact-finding in relation to the circumstances of the appellant, his partner, their three children, and the appellant’s stepdaughter, will 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 a different judge.

M R Hoffman

Judge of the Upper Tribunal
Immigration and Asylum Chamber

15th May 2026