Tribunal decisions

The decision

IN THE UPPER TRIBUNAL
IMMIGRATION AND ASYLUM CHAMBER Case No: UI-2025-005790
First-tier Tribunal No:
HU/51437/2024
LH/07998/2024

THE IMMIGRATION ACTS

Decision & Reasons Issued:
On 27 July 2026

Before

UPPER TRIBUNAL JUDGE PINDER

Between

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Appellant
and

B R
(ANONYMITY ORDER MADE)
Respondent

Representation:
For the Appellant in UT: Ms R Arif, Senior Presenting Officer.
For the Respondent in UT: Ms K Moran, Counsel instructed by Turpin Miller LLP.

Heard at Birmingham Civil Justice Centre on 28 April 2026

Order Regarding Anonymity

Pursuant to rule 14 of the Tribunal Procedure (Upper Tribunal) Rules 2008, the Respondent (BR) is granted anonymity.

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

DECISION AND REASONS
Introduction
1. The Appellant Secretary of State appeals the decision of the First-tier Tribunal (‘the FtT’/’the Judge’) dated 22nd May 2025, in which the Judge allowed the Respondent BR’s human rights appeal. BR’s human rights claim followed the making of a deportation order. The Secretary of State’s decision refusing BR’s human rights claim and maintaining the decision to deport him from the UK is dated 31st January 2024.
2. I have made an Anonymity Order in favour of the Respondent BR. Whilst this was not requested by BR himself, or his legal representatives, I have considered this of my own motion. I consider that, on the specific facts of this appeal, there is a real risk of a disproportionate interference with the rights protected under Article 8 ECHR of the wife and children of the Respondent BR. Whilst BR’s wife is an adult, she has significant health needs and I consider her to be vulnerable. BR’s youngest child is still a minor.
3. I have considered whether it would be sufficient not to provide any identifying details of the wife and child instead of anonymizing the Respondent himself. However, I have determined that the specific facts of this appeal justify the derogation that I have ordered from the principle of open justice. In particular, the Appellant’s youngest child, a teenager, is of an age that they can easily access the internet and there are real and justified concerns that identifying the Respondent BR in any publication is likely to cause at the very least emotional harm to BR’s wife and minor child, who are vulnerable for a number of reasons. As I have made the Anonymity Order after the hearing, either party is at liberty to apply, on notice to the other party, to either vary or set this Order aside.
4. Although this is the Secretary of State’s appeal, I will now refer to the parties as they appeared before the First-tier Tribunal (‘FtT’). From now on in this decision, BR will be ‘the Appellant’ and the Secretary of State will be ‘the Respondent’.
Factual and procedural background
5. The factual and procedural background is well known to both parties and I do not summarise this here in detail.
6. The Appellant is a national of Nepal. Following a criminal conviction in August 2020, which attracted a sentence of 30 months’ imprisonment, the Respondent decided on 26th February 2021 to issue the Appellant with a notice confirming that a deportation order would be made against him. The Respondent notified the Appellant that he was to raise any reasons why he should not be deported and the Appellant duly did so with his human rights claim. The Appellant’s case before the Respondent, and in turn before the FtT, centred around his relationship with his wife, her specific health and other needs and the Appellant’s relationship with their son, a minor.
7. It was accepted by the Respondent before the FtT that the Appellant has a genuine and subsisting relationship with his wife. It was not accepted that it would be unduly harsh for her to relocate to Nepal although in view of the Respondent’s position with regards to the Appellant’s youngest child, that was clarified in the Respondent’s review: given that it was accepted that it would be unduly harsh for the youngest child to move to Nepal, the Respondent also accepted that it would be unduly harsh for the Appellant’s wife to relocate to Nepal. The Respondent had not accepted that it would be unduly harsh for her or the minor child to remain in the UK without the Appellant. That was ultimately the issue that the FtT had to resolve, which it did in the Appellant’s favour.
The decision of the First-tier Tribunal
8. In reaching their findings on Exception 2 in s.117C(5) of the 2002 Act, and the ‘unduly harsh’ impact on the Appellant’s wife and child, caused by the Appellant being deported and the wife and child remaining in the UK, the Judge concluded at [26] that the Appellant’s wife’s evidence was generally credible and entitled to significant weight. This was despite the Judge considering that she had exaggerated the extent of her incapacity in claiming she could do “nothing”. Her oral evidence was more balanced and broadly consistent with the medical evidence, showing that she can undertake some basic tasks but remains substantially dependent on the Appellant for personal care, mobility, appointments, communication, and emotional support.
9. Similarly, the Appellant’s (adult) daughter’s evidence was also found by the Judge to be largely credible, save for an exaggerated claim that her mother requires “24/7 care”.
10. Drawing the above together, including in particular the medical evidence relating to the health and other needs of the Appellant’s wife as a result of a serious brain injury she sustained in 2024, the Judge accepted that it would be unduly harsh for the Appellant’s wife and son to remain in the UK without him. The Appellant’s wife is dependent on the Appellant to a considerable degree across a range of areas including certain aspects of personal care, being taken to medical appointments (and being assisted to communicated in those appointments) and aspects of rehabilitation following her brain injury.
11. Given the daughter’s full-time employment and inability to provide equivalent care as a result, the Judge concluded at [31] that the Appellant’s absence would have a “a very deleterious impact on his wife and thereby the (A)ppellant’s son as well”. The Judge was satisfied that the Appellant’s wife’s ability to care for their son (aged 16 years old at the time of the FtT hearing) would be “very significantly affected given her own needs” and consequently, the Judge was also satisfied that the Appellant’s absence would also have an undue harsh effect on him.
12. The Judge also found the Appellant not to be a wholly reliable witness and decided at [25] to treat his evidence with some caution. This was because the Judge did not find credible the Appellant’s claim to accept responsibility and feel remorse for his offence. Despite asserting that he accepted guilt, he had failed to explain why he had never expressed remorse in his various statements, including his witness statement from September 2024 which referred to rehabilitation. The Judge concluded at [22] that his omission was reflective of a continued lack of remorse and acceptance of responsibility. This was further undermined by the contents of the OASys report on the Appellant, which recorded that, after conviction, he had denied responsibility and alleged that the victim had made a false accusation ([23]).
13. The Judge also expressed concern at [24] with the Appellant’s evidence, which the Judge found to be unreliable due to inconsistent evidence about whether his mother-in-law would be moving into the family home. The Appellant had claimed during the course of her evidence that his mother-in-law had agreed to move in and to provide support, whereas his wife had stated that no such agreement existed and that her mother would not be moving in.
14. Because the Appellant, as a ‘medium’ offender, was eligible to invoke and was found to meet the provisions contained in Exception 2, the Judge confirmed at [32] that it was not necessary for him to consider the private life exception or the ‘very compelling circumstances’ over and above the statutory exceptions threshold. Accordingly, the Judge allowed the Appellant’s appeal on human rights grounds.
The Secretary of State’s appeal to the Upper Tribunal
15. The Respondent Secretary of State relied on her grounds of appeal lodged with the FtT when seeking permission from this Tribunal to appeal against the FtT’s decision.
16. In summary, the Respondent argues that the decision was inadequately reasoned and failed to establish the high threshold required for the ‘unduly harsh’ test. The Respondent submits that ultimately the totality of the medical evidence did not establish that the Appellant’s wife required care and the Judge’s acceptance of this claim has been inadequately reasoned. Further submissions are also made with regards to how the Judge approached the evidence of the Appellant’s wife and elder daughter.
17. Similar criticisms are made regarding the Judge’s findings concerning the Appellant’s son, with the Respondent arguing that there was no independent social worker’s evidence or any other objective evidence regarding any adverse impact the Appellant’s imprisonment or his wife’s accident has had on the Appellant’s son’s wellbeing, with the only evidence coming from family members. The Judge is said to have accepted claims of undue harshness without any evidential support or explanation.
18. The Respondent further argues that the Judge failed to properly consider alternative sources of support, including the presence of the Appellant’s adult daughter and of his mother-in-law, the Appellant’s son himself, and other alternative potential professional care. Given these factors, the Respondent submits that the consequences of deportation would not be so severe so as to satisfy the unduly harsh test. The decision therefore involved a material error of law.
19. The Respondent was granted permission to appeal the Judge’s decision on all grounds by a Judge of the Upper Tribunal on 28th January 2026.
20. In her oral submissions, Ms Arif elaborated on the grounds pleaded. Ms Arif maintained the submission that it was unclear from [26]-[27] of the Judge’s decision what was accepted from the wife’s and daughter’s evidence and what was rejected from their evidence after finding some elements of their respective accounts to be exaggerated. Nor had the Judge addressed whether the wife’s needs could be met through alternative sources of support.
21. Ms Arif also maintained the submission that the Judge’s conclusion that the wife’s reduced ability to care for their son would have an unduly harsh impact on him was inadequately reasoned. While expert evidence may not have been essential, the Judge failed to explain how that conclusion was reached in its absence. Mr Arif also submitted that the findings at [29] and [31] were not sufficiently reasoned as to why the elevated threshold was met despite concerns about exaggeration and limited medical evidence. Ms Arif submitted that the Judge’s reasoning suggested an assessment based on what would be difficult or undesirable rather than the higher threshold required.
22. With regards to the adverse credibility findings against the Appellant at [22]-[25], Ms Arif suggested that these should have undermined the reliability of the evidence regarding the Appellant’s wife’s needs and the availability of alternative support.
23. In response, Ms Moran addressed that the Respondent’s complaints are not that the Judge’s reasoning cannot be understood or is in some way insufficient or inadequate, but simply that the Respondent disagrees with it. Under the relevant appellate jurisdiction guidance, a challenge based on adequacy of reasons can only succeed where the Judge’s reasoning cannot be followed.
24. Ms Moran submitted that the Judge’s findings on the Appellant’s wife’s evidence were clear. The Judge expressly found that parts of the written evidence were exaggerated but accepted that the wife’s oral evidence aas candid, compelling, and consistent with the available medical evidence. The Judge was entitled to prefer that oral evidence, read together with the medical evidence before them, and the Judge adequately explained why.
25. It was further argued that the Judge did consider the limitations of the medical evidence. The Judge specifically acknowledged at [30] the absence of more detailed medical evidence but nevertheless identified support within the GP evidence for the finding that the Appellant’s wife remained significantly dependent on the Appellant, particularly outside of the home. The Judge therefore gave sufficient reasons for accepting some evidence while discounting other parts. Furthermore, the Judge’s criticism of the elder daughter’s evidence was limited to her claim that the wife required “24/7 care”. Otherwise, the Judge found her evidence credible and he adequately explained that conclusion.
26. As to the Appellant’s son, Ms Moran submitted that no expert evidence was required. Given the accepted evidence that the Appellant’s wife herself required substantial support, which she derived from her husband – the Appellant - it was an obvious and rational conclusion that her ability to care for their son would be significantly affected in the Appellant’s absence.
27. With regards to the provision of alternative support and the Respondent’s submissions that the Judge had failed to consider this, Ms Moran ultimately submitted that the Judge found that the Appellant’s wife depended on the Appellant not only for physical assistance but also for emotional support, which could not readily be replaced by external carers or family members.
28. Finally, Ms Moran submitted on behalf of the Appellant that the Judge had correctly directed himself in law and had applied the correct ‘unduly harsh’ test. The challenge amounted to mere disagreement with the outcome rather than identification of any legal error. The Judge was aware of the relevant legal framework, considered the relevant factors, and was entitled to conclude that the impact on the wife and son would be unduly harsh.
29. After hearing oral submissions from both parties, I reserved my decision of whether the Judge made material error(s) of law.
Analysis and conclusions
30. I have very carefully considered the parties’ competing submissions.
31. The need for an elevated standard to be met is made clear in HA (Iraq) v Secretary of State for the Home Department [2022] UKSC 22:
“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.”
32. It is also clear from [11]-[16] that the Judge has directed themselves entirely correctly to the right legal framework and relevant authorities. Furthermore, from the findings reached and in particular from the language used, that the Judge has made an informed assessment of the effect of the Appellant’s deportation on his qualifying partner and child and has made an evaluative judgment concluding that that elevated standard has been met on the facts and circumstances of the case as found before them.
33. I remind myself that the Judge’s reasons must be read fairly and as a whole, without focusing merely on individual phrases or passages in isolation and without being hypercritical: DPP Law Ltd v Greenberg [2021] EWCA Civ 672 at [57], as cited in the Practice Direction: Reasons for decisions.
34. Adhering to those principles, it is plain that the Judge was engaged overall in assessing the nature of the Appellant’s wife’s needs in order to assess the harshness of any separation from the Appellant and that he did so taking into consideration all of the evidence before him, including documentary and medical evidence and written and oral evidence as well from several of the Appellant’s witnesses.
35. The observations of the Judge on the Appellant’s own evidence are part of a larger whole and should not be picked out in isolation and presented as failing by themselves to justify the final conclusion. It is clear from the Judge’s findings and reasons that he accepted the evidence of the wife’s dependence on the Appellant not from the Appellant’s own evidence in isolation but from primarily the medical evidence, the evidence of the Appellant’s wife herself and that of their elder daughter. Those conclusions were entirely open to the Judge on the evidence before them and whilst presented as a reasons challenge, the Respondent’s grounds in effect amount to pleading irrationality. The latter is not in any way made out.
36. Contrary to the written and oral submissions made on behalf of the Respondent, the Judge’s findings at [27]-[28] could not be clearer. The Judge was concerned with a particular aspect of the Appellant’s wife’s written evidence and similarly with an aspect of the elder daughter’s evidence. Both of these aspects were tested in cross-examination and the wife’s assertion that she could not “do nothing” was not accepted for the reasons given at [27] and the daughter’s assertion that her mother needed “24/7 care” was not accepted either for the reasons at [28].
37. In particular, the Judge noted that the Appellant’s wife accepted in oral evidence that she could undertake certain aspects of her personal care and could warm up food for herself. The Judge otherwise considered that this evidence, and the wife’s oral evidence more generally, was consistent with the medical evidence available. The evidence that was consistent with the medical evidence was accepted by the Judge, as confirmed at [27]. Those were findings that were full reasoned, as I have summarised here, and which were entirely open to the Judge and entirely supported by the evidence before them.
38. The Judge dealt with the elder daughter’s evidence and exaggeration on the “24/7 care” assertion more succinctly at [28] but the reasons given were entirely sufficient, in particular when noting that the Judge recorded at [28] that the Presenting Officer did not point to any features of her evidence so as to undermine its credibility. As I have addressed already, the evidence of the Appellant’s wife and eldest daughter was tested in oral evidence. As a result of this, the Judge has made findings on what aspects of their evidence the Judge accepted and what they did not accept. That is, after all the purpose of a hearing, and those findings were ultimately reasonably open to the Judge.
39. With regards to any alternative sources of support, the Judge expressly considered and ultimately accepted the inability of the elder daughter to assist for the reasons given at [31], read with [27]. I also accept Ms Moran’s submission considering the context that is relevant here, namely that of a husband and wife relationship, in which the wife significantly depends on her husband both physically and emotionally as a result of a serious brain injury sustained as recently as 2024. Even if the Appellant’s mother-in-law was prepared to assist, the Judge’s finding that the loss of her husband’s assistance would render the impact of his deportation on his wife unduly harsh is sustainable for the reasons given at [31], which I regard to be more than adequate and sufficient. Neither do I consider that the Judge assessed matters to a lower threshold as asserted by the Respondent. The language used by the Judge is clear, it is easy to follow the Judge’s reasoning and the matters considered by the Judge are themselves, on any view, capable of amounting to the elevated threshold in question, as ultimately found by the Judge.
40. I also agree with Ms Moran that it was not necessary for the Judge to detail any further reasoning for their finding at [31] that the loss of the Appellant’s support through his deportation would not only have an unduly harsh impact on his wife but also in turn on his younger child. Ms Arif acknowledged that expert evidence on these issues is not mandatory or essential.
41. I am satisfied that there was sufficient evidence, as addressed by the Judge at [26]-[31], to enable the Judge to make an informed assessment of the care and other needs of the Appellant’s wife and of, consequently, the effect of the Appellant’s deportation on his qualifying partner and in turn his child. This has also allowed the Judge to make a comprehensive evaluative judgment concluding that that elevated standard has been met on the facts and circumstances of the case as found before them. It cannot be argued in my view that the Judge’s conclusion in this respect is inadequately reasoned or irrational. The Respondent’s written submission that “(u)ltimately, the evidence does not show that (the wife) requires care and the FTTJ’s acceptance of this claim has been inadequately reasoned in this regard” is not sustainable when looking at the evidence as a whole, which is what the Judge did.
42. Lastly, the submission made by Ms Arif that the adverse credibility findings against the Appellant at [22]-[25] should have undermined the reliability of the evidence regarding the Appellant’s wife’s needs and the availability of alternative support is one that is not included in the pleaded grounds of appeal. Nor is it one that is particularised. It is well-established that a party may not be truthful on certain matters, here on the nature of his offending and the Appellant’s responsibility for the same, but this may not necessarily affect the reliability of a different aspect of the same witness’ evidence. In addition, the Judge expressly directed themselves to treat the Appellant’s evidence with caution and the Judge’s findings, and reasons for allowing the appeal, are grounded in evidence other than that which stemmed directly from the Appellant himself.
43. For the reasons above, I am not satisfied that the grounds of appeal pursued by the Respondent are made out and I am of the firm view that the Judge has not erred in law as pleaded. I agree with Ms Moran that the Respondent’s complaints amount to mere disagreement.
44. For the reasons above, there is no error of law in the FtT’s decision.
Notice of Decision
45. The decision of the First-tier Tribunal did not involve the making of material error(s) of law and the decision to allow the BR’s appeal shall stand.
46. The Secretary of State’s appeal is dismissed.

Sarah Pinder

Judge of the Upper Tribunal
Immigration and Asylum Chamber

13.07.2026