Tribunal decisions

The decision

IN THE UPPER TRIBUNAL
IMMIGRATION AND ASYLUM CHAMBER Case No: UI-2025-005777
First-tier Tribunal No: HU/00050/2025

THE IMMIGRATION ACTS

Decision & Reasons Issued:
On 1st April 2026

Before

UPPER TRIBUNAL JUDGE NEVILLE

Between

SECRETARY OF STATE FOR THE HOME DEPARTMENT
Appellant
and

MR DENIS MASTAKOV
(NO ANONYMITY ORDER MADE)
Respondent
Representation:
For the Appellant: Mr M Pugh, Senior Presenting Officer
For the Respondent: No attendance or representation

Heard at Field House on 9 March 2026

DECISION AND REASONS
1. Mr Mastakov is a Lithuanian national who entered the United Kingdom in 2012 aged 26 years old. He married a Ukrainian national from whom he has since divorced, but the two have continued to parent their daughter. She is now 11 years old and a British citizen. On 19 December 2024 the Secretary of State ordered that Mr Mastakov be deported. His appeal against the corresponding appealable decision was allowed by the First-tier Tribunal on 11 July 2025, and the Secretary of State appeals in turn to the Upper Tribunal. There is no basis upon which to order anonymity.
The FtT’s decision
2. The FtT began its decision by setting out the applicable legal principles in cases of deportation, as follows:
9. Section 117C of the [Nationality, Immigration & Asylum Act 2002] states:
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.
10. The Appellant relies on Exception 2 and, failing this, on very compelling circumstances. However the extent to which he meets both Exceptions is relevant to the question of very compelling circumstances so I set out the law on both here.
11. Social and cultural integration in the UK was explained by the Court of Appeal in CI (Nigeria) v Secretary of State for the Home Department [2019] EWCA Civ 2027, in particular at paragraphs 75 to 82. The relevant test is concerned solely with the person’s social and cultural affiliations and identity. The relevance of offending and imprisonment is to what extent this has disrupted his social and cultural ties in the UK. Relevant factors are illustratively set out at paragraph 76 in CI (Nigeria) as:
That in turn would require some consideration of CI's current situation to see whether, for example, he has maintained relationships with members of his family, has other social relationships, has accommodation, has found or looked for work, has avoided re- offending and has engaged in any activities of a positive nature following his release from custody.
12. Very significant obstacles to integration were recently considered by the Court of Appeal in Ackom v Secretary of State for the Home Department [2025] EWCA Civ 537. Lady Justice Andrews summarised the law as follows:
21. In Kamara v Secretary of State for the Home Department [2016] EWCA Civ 813; [2016] 4 WLR 152, the Court of Appeal addressed the meaning of "integration" in the phrase "very significant obstacles to integration". Sales LJ, with whom Moore-Bick LJ agreed, said this at [14]:
"…the concept of a foreign criminal's "integration" into the country to which it is proposed that he be deported, as set out in section 117C(4)(c) … is a broad one. It is not confined to the mere ability to find a job or to sustain life while living in the other country. It is not appropriate to treat the statutory language as subject to some gloss and it will usually be sufficient for a court or tribunal simply to direct itself in the terms that Parliament has chosen to use. The idea of "integration" calls for a broad evaluative judgment to be made as to whether the individual will be enough of an insider in terms of understanding how life in the society in that other country is carried on, and a capacity to participate in it, so as to have a reasonable opportunity to be accepted there, to be able to operate on a day-to-day basis in that society and to build up within a reasonable time a variety of human relationships to give substance to the individual's private or family life."
Those dicta were quoted with approval by Sir Declan Morgan (with whom the other members of the Supreme Court agreed) in Sanambar v Secretary of State for the Home Department [2021] UKSC 30; [2021] 4 All ER 873, at [55].
22. In AS (Iran) v Secretary of State for the Home Department [2017] EWCA Civ 1284; [2018] Imm AR 169, the Court of Appeal rejected the submission that whether someone could become "enough of an insider" in the Kamara sense is to be determined (solely) by reference to their ties or links to the country of destination. The Court said it was clear that generic factors (such as good health, the ability to work, intelligence, academic abilities, ability to adapt to the local culture, and robustness of character) could be of significance and form part of the broad evaluative judgment of whether or not someone would encounter very significant obstacles to integration.
23. Both Kamara and the subsequent case of Parveen v Secretary of State for the Home Department [2016] EWCA Civ 932 (which concerned the meaning of the phrase "very significant obstacles to integration” in the different context of Paragraph 276ADE(i((vi) of the Immigration Rules) acknowledged that the threshold is an elevated one, as the word "very" connotes. In Parveen Underhill LJ referred at [9] to Kamara and rightly noted that the passage in Sales LJ's judgment at [14] focused more on the concept of integration than on what is meant by "very significant obstacles". He then considered the observations made on that subject by a Presidential Panel of the UT in Treebhawon v Secretary of State for the Home Department [2017] UKUT 13 (IAC) and said:
"It is fair enough to observe that the words "very significant" connote an "elevated" threshold, and I have no difficulty with the observation that the test will not be met by "mere inconvenience or upheaval". But I am not sure that saying that mere "hardship or difficulty or hurdles, even if multiplied, will not 'generally' suffice" adds anything of substance. The task of the Secretary of State or the Tribunal in any given case is simply to assess the obstacles to integration relied on, whether characterised as hardship or difficulty or anything else, and to decide whether they regard them as 'very significant'."
13. She went on at paragraph 49 to reiterate that the obstacles must “prevent or seriously inhibit… integrating… (as opposed to making integration difficult or challenging)”.
14. Furthermore, in NC v Secretary of State for the Home Department [2023] EWCA Civ 1379, Lady Justice Whipple said at 25 … the test is not subjective, in the sense of being limited to the appellant's own perception of the obstacles to reintegration, but extends to all aspects of the appellant's likely situation on return including objective evidence, and requires consideration of any reasonable step that could be taken to avoid or mitigate the obstacles (see Lal at [36]- [37]). 26. I would add this. The test posed by paragraph 276ADE(1)(vi) is a practical one. Regard must be had to the likely consequences of the obstacles to reintegration which are identified. In a case like this, where the only obstacle identified is the appellant's genuine but unfounded fear, particular care must be taken to assess the ways in which and the extent to which that subjective fear will or might impede re-integration. It cannot simply be assumed that it will. The likely reality for the appellant on resuming her life in her home country must be considered, given her subjective fear, and the availability of support and any other mitigation must be weighed. It is against that background that the judgment on whether the obstacles to reintegration will be very significant must be reached.
15. I note that this case concerned paragraph 276ADE(1)(vi) of the Immigration Rules (as they previously were) but the words “very significant obstacles to [the applicant’s / C’s] integration” are materially the same in that paragraph and section 117C. I therefore treat them the same.
16. The meaning of “unduly harsh” was explained by the Supreme Court in HA (Iraq). As relevant this said:
41 … I consider that the best approach is to follow the guidance which was stated to be “authoritative” in KO (Nigeria), namely the MK self-direction:
“… ‘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.”
42. 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).
43. 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.
44. 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.
45. 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.
17. If Exception 2 is not met, I look at very compelling circumstances. Paragraphs 46 to 50 of HA (Iraq) v Secretary of State for the Home Department [2022] UKSC 22 explained very compelling circumstances. It is possible for the Appellant to succeed despite not satisfying Exceptions 1 or 2, or to succeed in a very strong claim that does satisfy Exception 1 or 2. At paragraph 51 the Supreme Court went on to say:
51. When considering whether there are very compelling circumstances over and above Exceptions 1 and 2, all the relevant circumstances of the case will be considered and weighed against the very strong public interest in deportation. As explained by Lord Reed in Hesham Ali at paras 24 to 35, relevant factors will include those identified by the European Court of Human Rights (“ECtHR”) as being relevant to the article 8 proportionality assessment. In Unuane v United Kingdom (2021) 72 EHRR 24 the ECtHR, having referred to its earlier decisions in Boultif v Switzerland (2001) 33 EHRR 50 and Üner v The Netherlands (2006) 45 EHRR 14, summarised the relevant factors at paras 72-73 as comprising the following:
“• the nature and seriousness of the offence committed by the applicant;
• the length of the applicant’s stay in the country from which he or she is to be expelled;
• the time elapsed since the offence was committed and the applicant’s conduct during that period;
• the nationalities of the various persons concerned;
• the applicant’s family situation, such as the length of the marriage, and other factors expressing the effectiveness of a couple’s family life;
• whether the spouse knew about the offence at the time when he or she entered into a family relationship;
• whether there are children of the marriage, and if so, their age; and
• the seriousness of the difficulties which the spouse is likely to encounter in the country to which the applicant is to be expelled …
• the best interests and well-being of the children, in particular the seriousness of the difficulties which any children of the applicant are likely to encounter in the country to which the applicant is to be expelled; and
• the solidity of social, cultural and family ties with the host country and with the country of destination.”
18. The assessment of the nature and seriousness of the offence was further discussed at paragraphs 60 to 71 of HA (Iraq). Seriousness is assessed by reference to the sentence imposed. If there is information showing the sentence was changed for reasons unrelated to seriousness, for example prior offences, personal mitigation or a guilty plea, these should be discounted from the level of sentence when assessing seriousness in the context of section 117C.
3. I have set out the FtT’s self-direction at such length first because it is relevant to Secretary of State’s grounds of appeal, and second because it is plainly an accurate and comprehensive description of the correct approach to the appeal. It cannot be said that the FtT did not know the task it was required to perform. This means that an error of law will be established only if the FtT can be seen by its reasoning not to have performed it.
4. The FtT next set out the relevant facts, including the offence underlying the Secretary of State’s decision to deport. The FtT described the circumstances of the offence as “unusual and relevant to the public interest in deportation”. I agree that they are capable of being described in that way, and like the FtT set out the sentencing remarks of Her Honour Judge Lowe in full:
Mr Mastakov, you can stay sitting down, you know what I have to sentence you for. I have to sentence you because the jury found that you, back in May of 2021, inflicted a really serious wound to the arm of [the victim]. A little background; so that you understand the basis upon which I am sentencing you. He was at the time in a relationship with your ex-wife, and in fact, as we learnt during the course of the trial, it was his relationship with her which had been the reason for the original breakdown in your marriage. He was at the time, at least for periods in the week, living with your wife and your young daughter, and I have absolutely no doubt that you have a close and loving and fulfilling relationship with your young daughter. On this particular evening, there had been some discussions between you and your ex-wife on the telephone, and those discussions if memory serves me correctly, centred around whether you could see [the victim] was present at the address, but that he and your ex-wife were having some discussions about bringing to an end their relationship, and as a result of those discussions you attended your wife's address. I think you did that simply in an effort to discover more about what you had been told on the telephone.
I conclude, having heard the evidence, that you did not set out with any plan to injure [the victim], or to assault him at all. The jury found that you did not arm yourself in advance of the meeting. When you arrived you invited him to come and speak, and that happened; you invited him into your van. It started raining. During the course of the conversation, he said something which I have no doubt was hurtful to you, and I have the evidence, and I take the view that you reacted to that comment with anger and aggression. You told [the victim] that you were going go drive him to the sea, but you did not go anywhere in fact, and instead you took hold of, what was a knife, that I accept you had on you, or near you, for the purposes of work and you stabbed that knife towards him. The knife struck [the victim]’s arm, and it caused, what is commonly described, as a ‘through and through’ stab wound; in order words, the blade went in one side of his forearm and came out the other.
I know, and in fact it was confirmed by the accident and emergency consultant from whom we heard during the course of the trial, that such an injury is a common defensive injury. People get those sorts of injuries when they are trying to protect themselves from an attack with a blade, and I have no doubt, in this case, that he sustained that injury by having his arm up, in an effort to protect him from what was a deliberate attack with a knife, albeit one, as the jury found, that you did not launch with the intent to cause him serious harm, really serious harm. It has been submitted to me that it was but one blow, but in fact thereafter there was a struggle over the knife, with [the victim] hanging on to it whilst you attempted to wrestle it back. During the struggle his head was bitten by you, and you gouged his eye, and you were telling him that you were going to make him ugly. He recollected the incident to be minutes in length, and it being some time until he was able to persuade you that you and he should leave go of the knife at the same time, which is what eventually happened. It was quite clear from the photos that I saw, again, during the course of the trial, and from how he described himself to be feeling, that he lost a lot of blood as a result of the injury that you inflicted on him.
You did thereafter try and do the decent thing and ensure that assistance was sought for him, and waited for the emergency services to arrive and give him care. When he attended hospital, his various injuries were noted. He had to have an operation to his arm; he had muscle injury inside his arm, one of his arteries suffered an 80% cut, no doubt accounting for the vast quantities of blood that he clearly lost. There was compression of nerves in the arm, causing damage, and it was initially noted that there was some difficulty with some movement of a couple of his fingers and a lack of sensation.
Moving forward, it would appear, that he had ongoing treatment for ongoing nerve damage, and loss of strength in his grip and movement in those two fingers. I have read a victim impact statement which he provided, about three and a half years now after the offence. He describes his arm as still being numb. He can move his fingers, so it looks mercifully like that aspect of the injury has resolved itself. He says, and I entirely accept, that what he describes as a large scar, acts as a constant reminder to him of the incident I have just described. In the immediate aftermath of this there was, I accept, significant impact on him, over and above the physical injuries I have described. It meant that he had issues with the work that he could undertake, and he suffered financial consequences as a result. He also describes, and I entirely accept this, that that led to significant stress and anxiety; it seems to me probably exacerbated by the particular going through his own family proceedings, and obviously had concerns about how he was going to financially provide for his child. He has been offered another operation to fix ongoing damage but has declined it, because he cannot face a hiatus from work again.
So far as the Sentencing Guidelines are concerned, I conclude that this a high culpability offence. This was the use of a knife, deliberately. In other words, as I find on the evidence, it was a deliberate movement of a knife towards [the victim]. Accepting what the jury said, not intending to cause him serious harm; but it certainly was not, on the evidence that I heard, a reckless act, it was a deliberate act intending to cause some harm, or not really caring whether you were going to cause harm and taking the risk anyway.
That movement with that knife, I have no doubt, renders this a high culpability offence on the guidelines. So far as the injury is concerned, it is grave injury; in other words, Category 2, for all the reasons which will have been obvious from my summary of those injuries. So, it follows that the relevant starting point in the Sentencing Guidelines is three years' imprisonment, with a range of two to four years. There are no further aggravating features that I identify. So far as mitigating features are concerned, there are, I conclude, three significant aspects of mitigation. The first is your character, not just a lack of previous conviction, but positive good character, spoken about on your behalf by your friends and work colleagues during the course of the trial, which leads me to the conclusion, as I expressed during discussions with your counsel, that this was on any view completely out of character for you; I accept that entirely.
Second, and significantly, I take the view that the fact that you have a relatively young child with whom, as I have said, I have no doubt you have a close and loving and fulfilling relationship, and who no doubt will suffer greatly in the event that I decide that I must send you into immediate custody for this offence, and I take that into account. I should say though, on that point, that you have to appreciate that on my finding, my reading of the evidence in this case, you took a deliberate decision, albeit in a heightened state of emotion, you took a deliberate decision to do something which was extraordinarily dangerous, and unfortunately when people take decisions such as that, which lead to consequences, as happened on this case, there can be knock on effects, knock on implications; for example, on friends on family should the time come that you end up in custody.
But all that stems from the deliberate decision taken by you, it is not, as a result of any sentence that this Court imposes that such impact might arise. Significantly also, in my judgement, is the fact that you are a hard worker, and it would seem from the evidence that you gave during the course of the trial, and which I accept, that no matter the circumstances you found yourself in, you always tried your level best to provide, not just for yourself, but for your dependants as well.
But my task I suspect would be made far easier in this case had you pleaded guilty, because I could have given you significant credit for that plea of guilty; I should explain a little further. It is of course right that you indicated, I think at a PTPH hearing, that you would be prepared to plead guilty at that stage to the offence that you were ultimately convicted of. The prosecution declined that offer, and instead pursued you on the Section 18 charge, which you were ultimately acquitted of. At my direction, the Crown, during the course of the trial, provided an indictment which was amended to add the lesser alternative, the Section 20 count, of which you were ultimately convicted. You were arraigned on that count when it went on the indictment, and you pleaded not guilty; in order words the jury convicted you of it. The case that you ran up to that point, and which went before the jury, was not one which was consistent with a plea of guilty to a Section 20 offence. It follows that, in my judgment, there is no credit to afford you in this case. The position may well have been significantly different had you pleaded guilty when that count went on the indictment, during the course of the trial, but you did not. The position may have been significantly different if you had run a case consistent with a plea of guilty to Section 20, but you did not. So, I am afraid, for those reasons I cannot afford you any credit.
Please appreciate, Mr Mastakov, that this is not a task which I find easy, in fact, it is one which I find difficult. I have assessed this incident as being entirely out of character for you, but it had a massive impact on your victim, and you are, in my view, incredibly lucky that that impact was not even more significant. When people pull out knives during times of heightened emotion and anger, devastating consequences can, and do, occur. This Court sees that very regularly indeed, sadly. And so, difficult though I find it, I must honour the duty that I have to the public. You stabbed at [the victim] forcefully and deliberately; it caused him a serious defensive wound with long term consequences. It was motivated by jealously, or anger, about his relationship with your wife, and I am afraid for all the reasons I have given, I do not have any option other than to conclude that this offence is so serious only custody is appropriate. And the sentence that I pass on the count that you were convicted of, is the least possible sentence allowing for aggravating and mitigating features that I have spoken about, and that sentence is one of 30, three zero months' imprisonment. You will serve up to half of it in custody before being released on licence and supervision; it will be just licence in fact. Victim surcharge applies, there will be no costs or compensation in the circumstances.
5. That sentence was subsequently reduced to 24 months by the Court of Appeal. I have not seen its judgment, but the decision seems to have been made on the basis that Mr Mastakov should have had credit for a guilty plea after all. The FtT rightly decided to still treat the length of sentence as 30 months for the purpose of measuring the strength of public interest in deportation.
6. The FtT then set out some of the facts relating to Mr Mastakov’s background, his friends and community in the UK including his daughter, a British citizen aged 10 at the date of the hearing, and the effect imprisonment had had on her. None of these appear to have been controversial between the parties.
7. First addressing Exception 1, the FtT first observed that Mr Mastakov had not lived in the UK for over half his life. It nonetheless held that he was socially and culturally integrated in the UK, its reasons echoing some of the observations on Mr Mastakov’s life set out in the sentencing remarks. It then found that Mr Mastakov would not face very significant obstacles to integration in Lithuania, needing only to do such retraining as necessary to have his qualification as an electrician recognised in that country. Exception 1 was not met. The Secretary of State takes no issue with this part of the FtT’s analysis.
8. On Exception 2, the Secretary of State had sensibly accepted that it would be unduly harsh for Mr Mastakov’s daughter to go to Lithuania with him, as this would entail separation from her mother. On the “stay” scenario, the FtT accepted the Secretary of State’s arguments to find as follows:
31. I find the Appellant’s deportation does not reach the level of being unduly harsh on his daughter. Although I have no doubt it would materially harm her and be contrary to her best interests, and there is evidence of educational harm already having occurred because of the Appellant’s absence in prison, the test of undue harshness requires a situation that is severe or bleak. That level is not reached in this case.
9. Next moving on to very compelling circumstances, the FtT directed itself according to the Unuane considerations endorsed by Lord Hamblen in HA (Iraq) at [52], as already set out above, taking each bullet as a subheading. Weighing the factors in the balance, the FtT found that very compelling circumstances were established. The Secretary of State challenges that decision.
The appeal to the Upper Tribunal
10. Mr Mastakov was released from prison some months ago on immigration bail. The various documents concerning this onward appeal, including the notice of hearing, have been sent to him at the last address known to both the Tribunal and (Mr Pugh confirmed) the Home Office. He has not responded and did not attend the hearing. Mr Pugh confirmed that there were no other circumstances known to the Home Office that might explain his lack of engagement or otherwise justify an adjournment. While I note Mr Mastakov’s full engagement with the proceedings before the FtT, the notice of hearing was properly served under rules 13 and 36 and I considered it appropriate to continue with the hearing.
11. Several arguments advanced within the Secretary of State’s grounds of appeal are more logically addressed under different headings. I therefore structure my consideration by topic rather than by individual grounds. In doing so I have nonetheless been careful to restrict the Secretary of State to her pleaded grounds, particularly given Mr Mastakov’s absence from the hearing.
The correct appellate approach to proportionality
12. This onward appeal concerns a proportionality assessment, albeit one aimed at answering whether Mr Mastakov meets the statutory test imposed by section 117C(6). The issues arising in this appeal would make no contribution to the already burgeoning corpus of case law on section 117C. Therefore, as held in Shvidler v Secretary of State for Foreign, Commonwealth and Development Affairs [2025] UKSC 30:
148. …a first instance court has to follow and apply the guidance given previously, there is no significant need or justification for an appellate court to re-assess the matter afresh and it is likely to be appropriate to leave the application of the general law in the light of that guidance to the judgment of the lower court (subject only to review that it has directed itself correctly according to that guidance and has reached a reasonable conclusion within the relevant parameters for its assessment). Similarly, in matters of wide social concern, it is only necessary that the appellate courts examine them in order to exercise their own judgment as they first arise, not on every occasion thereafter.
13. The correct approach is therefore as follows:
147. … In such a case it will be appropriate for the appellate court to adopt an approach according to which it asks whether the lower court directed itself correctly, has had due regard to relevant matters and has reached a conclusion reasonably open to it, without any need to second-guess that court's proportionality assessment if it has: JR123, para 36.
A – Legal misdirection concerning the public interest
14. The Secretary of State argues that the FtT “failed to properly consider the public interest”, or alternatively that it “failed to reflect the correct approach”, pointing to some of the aggravating elements of the offence cited in the sentencing remarks as not having been “properly considered”. She also asserts that “no consideration was given” by the FtT to the different elements of the public interest in deportation.
15. The FtT’s self-direction on the relevant legal principles is set out above. It is accurate and comprehensive, and Mr Pugh made no submission to the contrary. Insofar as the grounds argue a positive misdirection of law this must be rejected.
B – Factors relied upon by Mr Mastakov
16. Several discrete complaints are made concerning the FtT’s fact-finding. Where the FtT made a finding of fact, it must be plainly wrong before appellate interference is justified: Volpi v Volpi [2022] EWCA Civ 464 at [2], Clin v Walter Lilly & Co. Ltd [2021] EWCA Civ 136 at [83]-[86] and Lord Hamblen’s speech in HA (Iraq):
72. It is well established that judicial caution and restraint is required when considering whether to set aside a decision of a specialist fact finding tribunal. In particular:
(i) They alone are the judges of the facts. Their decisions should be respected unless it is quite clear that they have misdirected themselves in law. It is probable that in understanding and applying the law in their specialised field the tribunal will have got it right. Appellate courts should not rush to find misdirections simply because they 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] AC 678 per Baroness Hale of Richmond at para 30.
(ii) Where a relevant point is not expressly mentioned by the tribunal, the court should be slow to infer that it has not been taken into account - see MA (Somalia) v Secretary of State for the Home Department [2010] UKSC 49; [2011] 2 All ER 65 at para 45 per Sir John Dyson.
(iii) When it comes to the reasons given by the tribunal, the court should exercise judicial restraint and should not assume that the tribunal misdirected itself just because not every step in its reasoning is fully set out - see R (Jones) v First-tier Tribunal (Social Entitlement Chamber) [2013] UKSC 19; [2013] 2 AC 48 at para 25 per Lord Hope.
17. Where it is argued that the FtT disregarded a material fact, this must be apparent from its reasoning; the FtT is under no duty to express every step of its reasoning, and a realistic and reasonably benevolent approach must be taken: Practice Direction: Reasons for decisions.
18. The grounds, as developed by Mr Pugh, put forward several discrete factual matters as having been neglected by the FtT, such as substitutes for Mr Mastakov’s logistical support with childcare or his prospects in Lithuania. I am quite satisfied that the FtT had all the necessary facts in mind; in the absence of express reasoning, it would be absurd to think that the FtT had forgotten that buses or taxis can sometimes be available in place of a lift, or that any of these relatively non-serious considerations were afforded excessive discrete weight in the balance exercise.
19. At para 9(g) of her grounds, the Secretary of State refers to one of the facts concerning Mr Mastakov’s daughter as carrying material significance in the FtT’s assessment, but a fair reading of the relevant part of the decision shows it to be just one aspect of a wider consideration of harm.
20. Finally under this ground, the Secretary of State observes that no medical records, evidence from an independent social worker or from Mr Mastakov’s daughter’s school was provided; both this and the FtT’s failure to explicitly set out that such evidence had not been provided is said to “seriously undermine” its findings. It is right that school records and an ISW report will often be valuable evidence, and in some appeals its presence or absence might well be critical to the outcome. The making of findings of fact and the application of threshold tests still depends on the content of evidence rather than its form, and when asked to identify the specific findings about the child’s circumstances that are seriously undermined in this appeal, the Secretary of State has been unable to do so. The argument of this ground revealed the Secretary of State’s true argument to be instead that in every appeal the FtT can only make positively determinative findings concerning a child if medical or expert evidence is provided or its absence explicitly noted and explained. There is no principled basis upon which to impose that discrete evidential requirement on appellants, much less to impose a discrete requirement on judges in the FtT to always set out certain matters. This would run contrary to the principles set out in the Practice Direction, supra. It is sufficient to apply the ordinary legal principles that apply to findings of fact, their reasoning and their appellate consideration: Volpi. In the present appeal, both Mr Mastakov and his ex-wife gave oral evidence that the FtT accepted for adequate and comprehensible reasons.
C – Factors relied upon by the Secretary of State
21. Several factors are cited in the grounds as having been either omitted from the FtT’s consideration or afforded impermissibly little weight.
22. None were omitted. The FtT’s analysis expressly referred to all the factors bearing on the public interest cited cited in the Secretary of State’s grounds. Throughout its reasons the FtT refers to the public interest in deportation, including the seriousness of the offence as being marked by the sentence imposed, which in turn was taken as informing the weight carried by the public interest. It was plainly alive to all the circumstances of the offence and the remarks of the sentencing judge, having set them out at length because the facts were “unusual” and later at [37] affording significance Mr Mastakov’s recklessness as to whether he would wound his victim and that he did in fact do so. Nor should the Secretary of State have argued at para 8(d) of the grounds that “no consideration” was given to the different elements of the public interest, when the FtT expressly did so1 at [52].
23. The Secretary of State also argues that the FtT:
…does not appear to have fully considered PG (Jamaica) [2019] EWCA Civ 1213 which states at para [39]:
“there is in my view only one answer to the question. I recognise of course the human realities of the situation, and I do not doubt that SAT and the three children will suffer great distress if PG is deported. Nor do I doubt that their lives will in a number of ways be made more difficult than they are at present. But those, sadly, are the likely consequences of the deportation of any foreign criminal who has a genuine and subsisting relationship with a partner and/or children in this country”.
24. I cannot see how that extract contains any proposition of law neglected by the FtT, which defined its task by reference to more recent and authoritative cases. If the Secretary of State intended to point to the result in PG, then caution must be exercised. As held by Underhill LJ in HA (Iraq) v Secretary of State for the Home Department) [2020] EWCA Civ 1176 at [129], in observations left undisturbed on appeal to the Supreme Court:
129. … I am not so austere as to say that a tribunal may not sometimes find it useful to consider the outcomes in other apparently similar cases as a cross-check on a conclusion which it is minded to reach. But the exercise can only ever be valuable up to a point. Ultimately the tribunal has to make its own evaluation of the particular facts before it. As the UT put it at para. 14 of its decision, in response to the same submission from Mr Bazini:
"Although the application of a legal test to a particular set of facts can sometimes shed light on the way in which the test falls to be applied, it is the test that matters. If this were not so, everything from the law of negligence to human rights would become irretrievably mired in a search for factual precedents."
I would add that it is often difficult to be sure that the facts of two cases are in truth substantially similar. And, even where they are, the assessment of "undue harshness" is an evaluative exercise on which tribunals may reasonably differ. …
25. I reject that the FtT erred by failing to have regard to anything said in PG.
D – Very compelling circumstances
26. Having rejected that the FtT erred by failing to have regard to the relevant factors advanced by the Secretary of State, I turn to whether – to paraphrase Shvidler – the FtT had due regard to relevant matters and reached a conclusion reasonably open to it. I take “due regard” as meaning whether the FtT afforded a matter the weight required by the relevant authorities. By, “reasonably open to it”, in the present context this must mean irrational or perverse; the appellate caution against interference in findings of fact extends to the evaluation of those facts: see Clin at [83],[86]; HA (Iraq), supra, and Yalcin v Secretary of State for the Home Department [2024] EWCA Civ 74 at [39]. Of course, none of those principles will justify a decision being upheld if it is inconsistent with proper application of the statutory test.
27. In addressing the Secretary of State’s arguments, perversity and adequacy of reasons can be taken together as two sides of the same coin: on her case, either the FtT’s decision on proportionality was not reasonably open to it or, if somehow such a decision could be rationally justified, then the FtT fails to explain why this was so here.
28. It is consistent with the statutory scheme that a person might establish very compelling circumstances despite meeting neither of the two Exceptions, as described in Yalcin:
57. NA (Pakistan) thus establishes that the effect of the over-and-above requirement is that, in a case where the "very compelling circumstances" on which a claimant relies under section 117C (6) include an Exception-specified circumstance ("an Exception-overlap case")[9], it is necessary that there be something substantially more than the minimum that would be necessary to qualify for the relevant Exception under subsection (4) or (5): as Jackson LJ puts it at para. 29, the article 8 case must be "especially strong". That higher threshold may be reached either because the circumstance in question is present to a degree which is "well beyond" what would be sufficient to establish a "bare case", or – as shown by the phrases which I have italicised in paras. 29 and 30 – because it is complemented by other relevant circumstances, or because of a combination of both. I will refer to those considerations, of whichever kind, as "something more". To take a concrete example, if the Exception-related circumstance is the impact of the claimant's deportation on a child (Exception 2) the something more will have to be either that the undue harshness would be of an elevated degree ("unduly unduly harsh"?) or that it was complemented by another factor or factors – perhaps very long residence in this country (even if Exception 1 is not satisfied) – to a sufficient extent to meet the higher threshold; or, as I have said, a combination of the two.
58. There is nothing at all surprising about this, at least in the case of a serious offender. Even if the over-and-above requirement were not explicit, it is in my view inherent in the structure of section 117C that a serious offender will need to meet a higher threshold than a medium offender in order to satisfy the test in subsection (6).
29. Mr Pugh put forward the finding of very compelling circumstances in this case as nonetheless being “too great a leap” from the findings that neither Exception was met: on private life, Mr Mastakov failed to meet two of the three limbs at Exception 1; on family life, the consequences of deportation on his daughter was held to fall short of being “unduly harsh” as required by Exception 2. Clear reasoning was required to justify a finding of disproportionality, Mr Pugh argued, which was simply absent from the FtT’s reasoning.
30. I agree with Mr Pugh that, while the FtT is engaged in a proportionality assessment, the accompanying statutory requirement to establish very compelling circumstances “over and above” those described in the Exceptions would be undermined if the failure to meet them were not taken into account. In Yalcin, addressing the obligation of the FtT in that case to identify what the factors were that took “took the case into the territory of ‘very compelling circumstances’”, Underhill LJ held as follows:
62. … it is also logically inherent in such a case that the tribunal will have found the "something more" which is necessary to satisfy the higher threshold under subsection (6): see para. 57 above. I agree that it would in principle conduce to transparent decision-making if the tribunal identified with precision in every case what the something more consisted of; but that will not always be straightforward. The proportionality assessment is generally multi-factorial and requires a holistic approach. A tribunal must of course in its reasons identify the factors to which it has given significant weight in reaching its overall conclusion. It is no doubt also desirable that it should indicate the relative importance of those factors, but there are limits to the extent to which that is practically possible: the factors in play are of their nature incommensurable, and calibrating their relative weights will often be an artificial exercise. It would in my view place an unrealistic burden on tribunals for them to have to decide, and specify, in every case whether the something more consists of the Exception-specific circumstance being present to an elevated degree, or of some other circumstance or circumstances, or a combination of the two. There may be cases where for some reason peculiar to the case this degree of specificity is necessary; but I do not believe that there is any universal rule. We should not make decision-making in this area more complicated than it regrettably already is.
31. Because Mr Mastakov is a medium offender, the “something more” must logically be the type of complementary factors described by Underhill LJ at [57]. The question is whether they and the weight they were afforded can be identified from the decision.
32. It is clear from the FtT’s concluding reasons at [53] that four broad topics were treated as significant: first, Mr Mastakov’s 14 years’ lawful residence in the UK prior to imprisonment and the social and cultural integration achieved during that time [33], [38]; second, the effect of deportation on the child of the family [49]; third, the circumstances of the offence [37], [40]; and fourth, relatedly, rehabilitation and lack of likelihood of future offending [41]. The first two are treated as carrying “significant weight”, but nothing in the FtT’s reasons suggests they could have carried the day in the absence of other circumstances. On a fair reading of the whole decision, it is the reduction to the public interest occasioned by the third and fourth factors that carried more significance than in the ordinary run of cases. This resulted in the first two factors being able to tip the balance.
33. Notwithstanding the caution with which tribunals must approach making such a finding based on assertions, prison courses or lack of offending for a relatively short period since, in this case the FtT was rationally entitled to find that Mr Mastakov would not reoffend. This finding, together with that the “offence was a genuine one-off”, was reached with care and balance, and resulted not only from the lack of prior and subsequent offending, but also the unique circumstances of the offence. The FtT also recognised that, as held in HA (Iraq) at [58], lack of future offending reduced only one aspect of the public interest, protection of the public, while leaving intact the other aspects of general deterrence and public concern. The cogency of the FtT’s final reasoning is somewhat undermined by the overall public interest being described as “slightly” blunted as a result, but this does not undermine the overall conclusion.
34. I conclude that the decision is adequately reasoned. The relevant facts were found, relative and absolute weight afforded to each, and a final conclusion expressed as to where the balance lay. The FtT squarely confronted itself with the relevant high threshold for a finding of very compelling circumstances, reached nuanced findings that recognised both positive and negative aspects to Mr Mastakov’s case, and evaluated the overall circumstances to answer the question posed by section 117C(6). That is why the Secretary of State lost, and the FtT was not obliged to give reasons for reasons. As observed in Yalcin in [62], “there are limits to the extent to which that is practically possible: the factors in play are of their nature incommensurable, and calibrating their relative weights will often be an artificial exercise”. I respectfully agree, the weight afforded to each factor on a balance-sheet cannot usually be referenced to a precise quantity: KB (Art 8: points-based proportionality assessment) [2022] UKUT 161 (IAC).
35. Finally, perversity. It may be that this decision does fall close to the outer bounds of the range within which reasonable disagreement is possible, but while saying “not all judges would have allowed the appeal, but…” is something of a cliché in this jurisdiction, I cannot conscientiously say that this outcome falls outside that range. The FtT performed the task set for it by Parliament and did so in accordance with the law. There is no basis upon which its decision can be set aside.

Notice of Decision
(i) The decision of the First-tier Tribunal to allow Mr Mastakov’s appeal against the Secretary of State’s decision stands.

J Neville
Judge of the Upper Tribunal
Immigration and Asylum Chamber

30 March 2026