Tribunal decisions

The decision

IN THE UPPER TRIBUNAL
IMMIGRATION AND ASYLUM
CHAMBER
Case No: UI-2025-005787
First-tier Tribunal No: HU/00674/2025

THE IMMIGRATION ACTS

Decision & Reasons Issued:
On 25th February 2026

Before

UPPER TRIBUNAL JUDGE GREY

Between

SECRETARY OF STATE FOR THE HOME DEPARTMENT
Appellant
and

DD
(ANONYMITY ORDER MADE)
Respondent
Representation
For the Appellant: Mr E. Terrell, Senior Home Office Presenting Officer
For the Respondent: Mr R. Main, Counsel instructed by Batley Law Solicitors

Heard at Field House on 10 February 2026

Although this is an appeal by the Secretary of State, to avoid confusion, I shall refer to the parties as they were in the First-tier Tribunal.

Order Regarding Anonymity
Pursuant to rule 14 of the Tribunal Procedure (Upper Tribunal) Rules 2008, the appellant is granted anonymity. No-one shall publish or reveal any information, including the name or address of the appellant, likely to lead members of the public to identify the appellant. Failure to comply with this Order could amount to a contempt of court.
Decision and Reasons
Introduction
1. This is an appeal brought by the respondent against the decision of a First-tier Tribunal Judge (“the Judge”) promulgated on 1 December 2025, in which she allowed the appellant’s appeal against the respondent’s refusal of her human rights claim against the decision to make a Deportation Order against her. The appellant is a citizen of Poland. Her immigration history is set out in the respondent’s refusal decision (HB/1278). She first entered the UK in August 2005 when she was 12 or 13 years old.
2. The background to this appeal is set out in the decision of the First-tier Tribunal (“FtT”) and does not require verbatim repetition herein. In summary, following the appellant’s conviction on 11 February 2025 for conspiracy/supply of a class A drug (heroin) she was sentenced to 3 years imprisonment, making her a “medium” offender for the purposes of section 117C of the Nationality, Immigration and Asylum Act 2002 (“NIAA”). Her human rights submissions in respect of the decision to deport her were refused and she appealed that refusal to the FtT.
The FtT Decision
3. The Judge recorded at [34] of the decision that the appellant claimed she satisfied Exception 1 and Exception 2 under section 117C(4) and (5) NIAA and satisfied the “very compelling circumstances” test under section 117C(6).
4. Having set out the evidence heard at the hearing extensively, the Judge then addresses Exception 2 at [57] and [58] of the decision. The Judge records the fact the appellant is a mother of two British born children who are subjects of a Family Court Special Guardianship Order (“SGO”) in favour of the grandparents with whom they live. The Judge notes that the refusal decision accepted that is would be unduly harsh to require the children to relocate to Poland. The decision then states at [57]:
I have already accepted that owing to unique personal circumstances/history of their mother’s medical/drug reliance background that it would be unduly harsh to conclude that the appellant lacks a genuine and subsisting parent relationship with her children because she has equally shown her determination to regain her position as a responsible parent.
5. At [58] the Judge refers to the fact that the appellant cannot have direct unsupervised contact with her children but that the SGO is a temporary measure and the appellant has never rejected her children. The Judge determined that it was in the best interests of the children for them to build a relationship with the appellant. At [22] the Judge noted that the appellant had had no direct contact with her children since 2021. At [59] the Judge stated that she found the appellant meets the requirements of Exception 2.
6. The Judge set out her findings on Exception 1 at [60] to [65], finding that the appellant also satisfied this Exception. The Judge found that the appellant had been lawfully resident in the UK since she was 12 years of age and that this was for “most of her life.” The Judges concludes that the appellant is socially and culturally integrated in the United Kingdom at [61], referring to the appellant's education and previous work history in the UK, her fluency in speaking English and “integration into her local society”.
7. At [62] to [65] the Judge provides her reasoning for finding that the appellant would face “very significant obstacles “to her integration into Poland, referring to the lack of a family and support network available to the appellant in Poland and her lack of fluency in the Polish language, of which she only has a “working knowledge”.
8. At [66] et seq the Judge set out her reasoning for finding there were “very compelling circumstances” such that the public interest does not require her deportation. The reasoning in respect of this issue relates to the circumstances of the appellant’s children and the previous findings on Exceptions 1 and 2.
The Appeal to the Upper Tribunal
9. The respondent claims the decision of the FtT is vitiated by material errors of law in the following respects:
1) The Judge made a material error of law in relation to Exception 2, conflating the requirement for the appellant to have a genuine and subsisting parental relationship with a qualifying child with the issue of whether it would be unduly harsh for the appellant’s children to remain in the UK without her in the event she was deported to Poland.
2) The Judge failed to make a clear finding of fact as to whether the appellant presently has a genuine and subsisting relationship with her children.
3) When assessing Exception 1, the Judge fails to consider whether the appellant’s integration into the UK was lost as a result of her criminal offending and due to her periods of drug use which started in 2020.
4) The Judge failed to properly assess the matter of very significant obstacles to integration for the purposes of Exception 1.
5) The Judge’s conclusion on “very compelling circumstances” is vitiated by the errors made in respect Exceptions 1 and 2.
10. Permission to appeal was granted by the FtT on all grounds on 19 December 2025.
The Hearing Before Me and Decision on the grounds
11. Mr Terrell adopted the grounds of appeal and relied upon the recent Court of Appeal decision in Ackom v SSHD [2025] EWCA Civ 537 in relation to the issue of very significant obstacles to integration into Poland.
12. Mr Main initially relied upon his Rule 24 response/skeleton argument to address the grounds. However, I indicated early on into Mr Main’s submissions that I was persuaded by the grounds, and why. Mr Main, fairly, accepted that the Judge had materially erred in law. Given the nature of the errors; that it was unclear from the decision what matters were actual findings of the Judge as opposed to a record of the evidence heard; and, the extent of fact-finding required, it was agreed by all parties that the appeal should be remitted to the FtT for a de novo hearing so that the appellant would have the benefit of the two-tier appeal process.
13. In these circumstances I only briefly set out my conclusions on the nature of the Judge’s errors and avoid providing detailed findings which may prejudice either party or unduly influence the judge at the de novo hearing.
14. It is fair also to record the obvious time and effort invested by the Judge in case-managing this difficult case, in reaching her decision, and in writing the lengthy decision.
15. I find that the Judge made a material misdirection at [57] in relation to Exception 2 where she records that it would be unduly harsh to conclude that the appellant lacks a genuine and subsisting relationship with her children because she has shown her determination to regain her position as a responsible parent. As asserted by the respondent, this appears to conflate the issue of whether the appellant has a genuine and subsisting relationship with her children with the issue of whether her deportation would be unduly harsh on her children. What the Judge set out at [57] of the decision is not the relevant test to be applied in respect of Exception 2.
16. I am unable to identify any reasoning in the decision to indicate, and am unable to infer from the decision, that the Judge properly directed her mind to whether it was unduly harsh on the appellant’s children, who live with their grandparents under terms of a SGO, to remain in the UK whilst the appellant is deported to Poland. I acknowledge that the Judge found it was in the best interests of the children for them to be able to build a relationship with their mother, but the assessment of whether deportation of the appellant would be “unduly harsh” on the children involves consideration beyond the children’s best interests. Further, I find that the Judge fails to adequately consider whether the appellant currently has a genuine and subsisting relationship with her children. There are references to the appellant’s aspiration to regain her position as a responsible parent and to it being in the children’s best interests to build a relationship with their mother, but these findings fall short of an assessment of their present relationship, and whether it meets the requirements of Exception 2.
17. For these reasons, the Judge’s findings on Exception 2 are unsafe and consequently must be set aside.
18. In relation to Exception 1 the Judge’s conclusions on the appellant’s integration in the UK at [61] fail to address at any stage the potential impact on the appellant’s integration arising from her criminal convictions and drug use. Whilst it may be open to the Judge to find that the appellant is socially and culturally integrated into the UK, her reasoning does not indicate that she has considered the appellant’s criminality, drug use and the guidance in this regard from Binbuga v Secretary of State for the Home Department [2019] EWCA Civ 551. I find this is a material omission in the consideration of this issue.
19. Further, the Judge’s conclusion and reasoning in relation to the matter of “very significant obstacles” indicate that she may not have appreciated the elevated threshold the appellant was required to meet. It is unclear from the Judge’s reasoning what would prevent or seriously inhibit the appellant integrating into life in Poland, a developed European country of which the appellant has a working knowledge of the language. The recent Court of Appeal assessment of this issue in Ackom, in the context of an appellant facing deportation to Germany, is of assistance on the facts of this case.
20. For these reasons, the Judge’s findings on Exception 1 are unsafe and consequently must be set aside.
21. The errors identified in relation to the Judge’s findings on Exception 1 and 2 are undoubtedly material. Given the material errors identified in relation to Exceptions 1 and 2, I must also conclude that the Judge’s conclusion on very compelling circumstances under section 117C(6), which is predominantly based on the Judge’s earlier findings on the Exceptions, is vitiated by a material error of law.
22. As stated previously, due to the nature and extent of the errors in question, the decision must be set aside in its entirety with no findings preserved and the appeal will be remitted to the FtT for a de novo hearing.
Notice of Decision
The Secretary of State’s appeal is allowed. The decision of the First-tier Tribunal is vitiated by material errors of law and is set aside.
The appeal is remitted to the First-tier Tribunal for a hearing before another judge.

S. Grey

Judge of the Upper Tribunal
Immigration and Asylum Chamber

17 February 2026