UI-2025-005871

• Status of case: Unreported
• Hearing date: 29 May 2026
• Promulgation date: 20 Jul 2026
• Publication date: 10 Aug 2026
• Last updated on: 10 Aug 2026

The decision

IN THE UPPER TRIBUNAL
IMMIGRATION AND ASYLUM CHAMBER Case No: UI-2025-005871
First-tier Tribunal No:
HU/00156/2024

THE IMMIGRATION ACTS

Decision & Reasons Issued:

20 July 2026

Before

UPPER TRIBUNAL JUDGE RUDDICK

Between

SEDDIK BELMADANI
Appellant
and

SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: Mr A. Chakmakjian, instructed by Reiss Edwards Immigration Lawyers
For the Respondent: Mr D. Simpson, Senior Home Office Presenting Officer

Heard at Field House on 29 May 2026


DECISION AND REASONS
1. The appellant is a citizen of Algeria and the father of two British citizen children. One was born in March 2021 and the other in 2026, after the First-tier Tribunal (“FtT”) determination that is the subject of the appeal before me. On 2 March 2023, the respondent made a deportation order against the appellant because theft offences he committed in August 2022, for which he had received a sentence of 30 months’ imprisonment. On 12 January 2024, the respondent decided that requiring him to leave the UK would not be a disproportionate interference with his family life with his wife and child. The appellant appealed against that decision, but in a decision dated 19 January 2025, the FtT dismissed his appeal.
2. The appellant’s appeal was required to be determined in accordance with two statutes passed by Parliament: the UK Borders Act 2007 (“the 2007 Act”) and sections 117B and 117C of the Nationality and Borders Act 2002 (“the 2002 Act”). The respondent now accepts that the FtT misunderstood the second of those statutes.
3. The appellant also says that the proceedings before the FtT were unfair, in that the FtT went behind a concession that the respondent had made in his favour, after having accepted that it could not do so. This deprived the appellant of any opportunity to address the issue. I agree. I also agree with the appellant that it was unlawful for the FtT to base part of its analysis on a presumption that a person born in one North African state would not face any significant difficulties in integrating into another. Finally, I agree with the appellant that the FtT’s assessment of the best interests of the appellant’s child was flawed.
4. The respondent contends that these errors, even taken together, could not have made a difference. She says that there was simply insufficient evidence for any reasonable judge to conclude that the effect of deportation on the appellant’s partner and child would be unduly harsh, or that there were very compelling circumstances outweighing the public interest in the deportation of foreign offenders.
5. There is real force to this argument. However, the question is not whether it is likely that another reasonable judge, applying the law correctly and proceeding fairly, would have come to the same conclusion. It is whether no rational judge could have come to a different one. That is a high standard. After careful reflection, I have concluded that it is not met.
Background
6. The appellant was born in 1991. He entered the UK clandestinely in July 2017 and in December 2017, he met his wife. She is a dual national of Italy and Morocco who has lived in the UK lawfully since September 2016. On 11 April 2019, the appellant and his wife married and the appellant’s status became lawful. As mentioned above, the couple’s first child was born in March 2021. She is now a British citizen.
7. On 27 August 2022, the appellant committed two thefts at Heathrow airport. He was arrested on the day after the offences and pleaded guilty the day after that. On 7 February 2023, he was sentenced to 30 months’ imprisonment.
8. Because the appellant is a not a citizen of the UK and he has been sentenced to more than 12 months’ imprisonment, he is a “foreign criminal” as defined at 32(2) of the 2007 Act. Section 32(5) of that act requires the respondent to make a deportation order against him unless one of the exceptions set out at section 33 applies. The relevant exception is set out at section 33(1): where removal of a foreign criminal would breach a person’s rights under the European Convention on Human Rights (“ECHR”).
9. In the decision of 12 January 2024, the respondent decided that it would not be a breach of the rights of the appellant, his wife or his child to deport the appellant to Algeria. She made her decision in accordance with the requirements of section 13 of the Immigration Rules. It is not necessary to set out here all of the respondent’s reasons. What is relevant to the issues before me is that with regard to Para. 13.2.5, the respondent found that “it would be unduly harsh for your child to live in Algeria as they are settled in the United Kingdom and have no connection to Algeria and have a settled status in the United Kingdom.” However, it was not accepted that it would be unduly harsh for the child to remain in the UK with her mother, who was her main career [sic] and “provides both emotional and financial provisions for your child.”
10. With regard to Para. 13.2.6, the respondent accepted that:
(i) the couple’s relationship was genuine and subsisting;
(ii) the appellant’s wife was settled in and resident in the UK; and
(iii) “the relationship was formed when you were in the UK lawfully and your immigration status was not precarious. This is because you were married when your status in the United Kingdom was not in doubt, and you had leave in the United Kingdom.”
11. However, the respondent did not accept that it would be unduly harsh for the appellant’s wife to live in Algeria. She was an Italian national and had adapted to life in the UK. Nor would it be unduly harsh for her to remain in the UK without him. The respondent explained
“It is noted that your partner has claimed in her attached statement that your deportation would have a severe emotional impact on both her and the child. However, no evidence has been received from a qualified medical practitioner to substantiate this claim. It is considered that if your partner requires any support then she can obtain this from sources such as any family members or friends that she has in the UK or public services such as the NHS.”
12. The respondent then gave her reasons for finding that there were no very compelling circumstances outweighing the public interest in his deportation.
13. The appellant appealed. In support of his appeal, he submitted a witness statement. He set out his version of the circumstances of the offences and asserted that he was “incredibly remorseful”. He had focused on “bettering himself” in prison and completed certain courses and had no more contact with the people connected to the offence. His wife had struggled a lot while he was in prison, completing her master’s degree while looking after their child. Her sister had come from Italy to help her, but this had been only a temporary solution as she had had to return to Italy. His wife was now looking after their child while he worked as a chef. She was pregnant with their second child and the situation was “very delicate”. If he were deported, she would have no one to look after the children and be unable to resume her career. His wife and child had visited Algeria, but his wife was not used to the way of life there.
14. In her statement, the appellant’s wife said that she had exercised her EU treaty rights since arriving in the UK in September 2016. She had completed her undergraduate and master’s degrees and worked as a chartered surveyor. She had stopped worked to look after their child but hoped to return to work when the children were older. If her husband were deported, she would have to return to work immediately and arrange child care. This would cost all of the money she earned, and taking her daughter to nursery and picking her up would be difficult. It had been very difficult while her husband was in prison. Her sister had come from Italy to help, but this had only been a temporary solution. “The thought of knowing that Seddik will be back was comforting at times but I could not have progressed personally on my own.” She was now pregnant with her second child and needed her husband’s support “more than ever”. Her husband and her daughter had a very strong bond. He realised the severe consequences of his offending.
15. The appellant also submitted: proof of his daughter’s registration as a British citizen; evidence of his wife’s educational qualifications and employment; bank statements; evidence of their cohabitation; family photos; evidence of his employment prior to his offence; and certificates showing that while he was in prison, he had obtained qualifications in reading English, construction health and safety and security and had completed courses in victim awareness and thinking skills. There was a brief letter from the appellant’s brother attesting to the fact that the appellant was a devoted husband and father and two letters of support from friends. An OASys assessment completed in May 2023 stated that the appellant did not accept responsibility for the offence and that the offence was part of an established pattern of similar offending and an escalation from two previous convictions for theft in July 2017 and January 2018. His probability of non-violent offending was assessed as medium and of violent offending, low.
16. The respondent’s bundle contained documents relating to the appellant’s offending, including the judge’s sentencing remarks. The judge found that the offences were of “high culpability because, although the planning may not have been particularly sophisticated it was undoubtedly significant”. The harm was category 1 because one of the handbags that was stolen was a Birkin bag containing a Rolex watch, and the combined value of these items was £40,000. The judge also noted that the objects were also of sentimental value to the victim because they had been gifts from her mother and her aunt. The victim had been put to the inconvenience of replacing her Greek identity documents, her travel plans had been “disturbed” and she had had to change the locks to her flat and the front door of her building and provide new keys to other tenants. Travellers at airports are “vulnerable”, because they are tired and distracted, and are often nervous.
The challenged decision
17. The FtT judge (the “FtTJ”) began by setting out the documents before the tribunal. The OASys report had not been served on the appellant, but the appellant did not seek an adjournment: [5].
18. The issues, as agreed with the parties, were:
“(a) Is the deportation of the Appellant unduly harsh on his wife?
“(b) Is the deportation of the Appellant unduly harsh and [sic] his daughter?
“(c) If neither (a) nor (b) is satisfied, are there very compelling circumstances meaning that the public interest in the Appellant’s deportation is outweighed by the level of interference with his private and family life?”: [6]
19. The FtTJ then identified concessions made the respondent and expressed his disagreement with them:
“7. The Respondent’s decision contained two relevant concessions relating to these issues. The first is at paragraph 30. This says:
‘30. It is accepted that it would be unduly harsh for your child to live in Algeria as they are settled in the United Kingdom and have no connection to Algeria and have a settled status in the United Kingdom.’
“8. I expressed surprise at this position because the child does have a connection to Algeria in that her father is from the country. Furthermore, I had in mind that her mother is also originally from a neighbouring North African country, namely Morocco. It was unclear to me how the elevated threshold of the situation being unduly harsh was met on the Respondent’s analysis. I said that the reasons would not be adequate if I were to rely upon them in making such a decision.
“9. After taking instructions, Mr Syed [the Home Office Presenting Officer] confirmed that the Respondent maintained the concession and added to it that she no longer submits that it would not be unduly harsh on the Appellant’s wife to go to Algeria because she must remain in the UK with their daughter. Although I remain sceptical about the reasons for these concessions, I do not go behind them as it is not in the interest of justice for the Tribunal to determine issues which are not before it when dealing with professionally represented parties. I do however look at the underlying facts when considering very compelling circumstances, which I discuss later in this decision as part of issue (c).
“10. The second concession is at paragraph 38. This says:
‘38. It is accepted that your relationship with Samaira Bouraya was formed when you were in the UK lawfully and your immigration status was not precarious. This is because you were married when your status in the United Kingdom was not in doubt, and you had leave in the United Kingdom.’
11. Mr Wilford [appellant’s counsel], rightly in accordance with his professional duties, drew my attention to this being factually incorrect. The Appellant was in the UK unlawfully when his relationship with Ms Bouraya began. On taking instructions, Mr Syed withdrew this concession.”
20. At [12]-[13], the FtT set out that it heard oral evidence from the appellant and his wife and submissions from the representatives but gave no details.
21. At [14]-[30], the FtT made a series of findings of fact to the relevant standard of proof, which was the balance of the probabilities. I do not recite them all here. The findings I consider relevant to my decision are that the difference between the appellant’s oral evidence, on the one hand, and the sentencing remarks and the OASys report, on the other, showed that the appellant had a “tendency […] to minimise his offending”: [17] The appellant’s status was regularised by his marriage in April 2019: [19]. The appellant’s daughter was a citizen of Italy and the UK, but there was no evidence whether she was a citizen of Morocco or Algeria: [21].
22. At [22]-[24], the FtT set out the facts of theft offences that had led the respondent to decide to deport him. At [23], it noted that what the appellant said about the circumstances of the offences was inconsistent with the OASys report and the sentencing remarks, and that the appellant was “again minimising his culpability”.
23. At [25], the FtT set out the family’s income prior to the appellant’s imprisonment. As [26], it found that:
“While the Appellant was in prison his wife cared for their daughter while studying at university two days per week. She had the help of friends, her sister who visited from Italy, and a childminder, at different times during this period.”
24. At [27]-[29], the FtT described the family’s current circumstances:
“27. The Appellant was released in April 2024 on licence. Since his release he has obtained a full-time job as a chef. His wife recently started a new full-time job as well. The Appellant says that he no longer associates with the people who involved him in the crimes. Given my concerns about his honesty – his statement says things about his offending that are not true and he has convictions for five dishonesty offences1 – I do not take this at face value. However there is no evidence that he has reoffended since his release and I accept that he has done courses to reduce that risk.
“28. The current circumstances of the family are that the Appellant lives in a rented property with his wife and daughter. He typically starts work at around 14.00 and works until late in the evening. He does not work on Tuesdays but does work at weekends. His wife works normal office hours. It is early days in her employment so she does not yet know the level of flexibility from her employer, however her office hours are 09:30 to 16:30 and she must work in the office on Thursday. Their daughter begins primary school next week. The family are currently working out the logistics of childcare and expect it may need some use of after school clubs and/or a childminder. The Appellant has a strong bond with his daughter, though this was no[t] explored in detail as the Respondent accepts they have a genuine and subsisting relationship.
“29. The Appellant’s wife sadly suffered a miscarriage earlier this year. At the time of the hearing she was in the early stages of pregnancy once again. Her family are all in Italy. Despite this she said that if the Appellant were deported she would remain in the UK rather than going to that country. She did not expand on her reasons for this.”
25. Finally, at [30], the FtT found that the appellant had a brother in the UK and a mother in Algeria. Although he had said during cross-examination that he would face difficulties in Algeria, he did not elaborate.
“In the absence of any explanation, I am unable to make findings of what these difficulties might be. I remind myself that the burden is on the Appellant in relation to such matters and that these could, potentially, be a new matter requiring the consent of the Respondent for consideration by the Tribunal.”
26. The next section of the decision is entitled “Legal framework”. This begins with a recital of section 117C:
“(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.”
27. This is the correct legal framework.
28. The FtTJ then directed himself that although the appellant relied only on Exception 2 and, “failing this, on very compelling circumstances” under section 117C(6), the extent to which he met either Exception 1 or Exception 2 was relevant to the assessment of very compelling circumstances: [32] This is also correct.
29. At [33]-[39], the FtT set out excerpts from leading caselaw about the proper interpretation and application of section 117C. The appellant has raised no complaint about the FtT’s self-direction here.
30. This section concludes:
“41. Finally, section 117B(4) says:
‘(4) Little weight should be given to—
(a) a private life, or
(b) a relationship formed with a qualifying partner, that is established by a person at a time when the person is in the United Kingdom unlawfully.’
“42. I now apply these facts to the legal framework to decide the issues in the appeal.”
31. The next section of the decision contains what the respondent now concedes was a misdirection in law:
“Unduly Harsh of [sic] Wife
“43. In light of the little weight provision in section 117B(4), and that the relationship was formed when the Appellant was in the UK unlawfully, it is difficult to see how I could find that deportation would be unduly harsh on the Appellant’s wife. Mr Wilford rightly said that the focus must be upon the effect on the child.”
32. At [44], the FtT gave reasons for finding that the appellant’s deportation would not have unduly harsh consequences for his daughter. She would “lose the physical care and direct emotional support of her father” and be in a worse financial position. However, her mother had “shown herself to be a caring and effective mother and breadwinner”. It continued:
“She is currently starting a new job and in the early stages of pregnancy, both of which heighten the uncertainty at this stage. However her track record is of being able to provide adequate care to her daughter in the absence of the Appellant.”
33. Some findings about the impact of separation on the appellant’s wife were made here, but only so far as they affected her care for her daughter.
34. At [45]-[60], the FtT made a series of findings related to whether Section 117C(6) was met. In doing so, it first looked at the factors relevant to Exception 1. It found that the appellant had arrived in the UK at the age of 25 and had subsequently lived in the country unlawfully for two years and lawfully for six. He was socially and culturally integrated in the UK but there would not be very significant obstacles to his reintegration in Algeria. Therefore only one of the three limbs to Exception 1 was met: [46]-[49].
35. At [50]-[60], the FtT made findings about each of the factors listed at [51] of H (Iraq) v SSHD [2022] UKSC 22 in turn, effectively treating this as a checklist of all relevant factors. After each finding, he assigned the factor no weight, “little weight”, “some weight”, “moderate weight” or “significant weight” The appellant does not say that this approach was wrong.
36. I do not reproduce all of the findings here. The sections relevant to the issues before me are the following:
“Nationalities of the various persons concerned
“54. The Appellant’s Algerian. His wife is Moroccan and Italian. Their daughter is Italian and British. I do not have evidence of whether she is also Moroccan or Algerian. I am conscious that as a British citizen the daughter has a right to live in the UK. However her parents have a right to decide where she should live subject to the laws of that country. Notwithstanding the concession of the Respondent it seems plain to me that this is a family that has options other than living in the UK. I nevertheless give significant weight to the best interests of the British child in Britain.
“Applicant’s family situation, such as the length of the marriage, and other factors expressing the effectiveness of a couple’s family life
“55. I have discussed this above. The Appellant and his wife have been married for a significant time and she is not herself a citizen of Algeria. Their relationship was formed in the UK and has subsisted in the UK. They continue to have effective family life here. However the relationship gets little weight because it was formed when the Appellant was in the UK unlawfully. There are no exceptional features which mean that the little weight provision shall not apply in the [sic] situation. […]
“Seriousness of the difficulties which the spouse is likely to encounter in the country to which the applicant is to be expelled
“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.
“58. I look at these factors together. I have mentioned above that this is a family that has options other than living in the UK. The Respondent conceded that it would be unduly harsh on the Appellant’s wife and daughter to live in Algeria. My scepticism about this concession remains. It is unclear to me why, on the evidence provided, it would be severe or bleak for Ms Bouraya to live in the North African country that neighbours the North African country were she was born. It is something she is simply not given evidence on. Indeed the little evidence I do have is that the Appellant’s child and wife have visited Algeria. The burden is on the Appellant to explain the difficulties and I do not have evidence about them. I therefore give this factor little weight in the Appellant’s favour.
59. I have already considered the best interests of the child as a result of her nationality and I give significant weight to that.”
37. The FtT stated its conclusion at [61]: these were not very compelling circumstances. The appeal was dismissed.
The grounds of appeal
38. The appellant initially brought three grounds of appeal.
39. Ground One was entitled “Failure to consider, or adequately consider, material evidence/Failure to give adequate reasons – the separation scenario”. The appellant submitted that the FtT erred by:
(i) Referring to the wife’s “track record” of providing care for her daughter while the appellant was in prison without taking into account how the temporary separation of imprisonment differed from the permanent separation of deportation, with reference to Sicwebu v SSHD [2023] EWCA Civ 550 at [63];
(ii) Failing to take into account the wife’s evidence of the challenges she had faced during her husband’s imprisonment; and
(iii) Failing to consider how the wife’s situation would be affected by her pregnancy.
40. Either these factors had not been taken into account or, in the alternative, the FtT had given inadequate reasons for placing little weight on them.
41. Ground Two was entitled “Consideration of immaterial factors/procedural unfairness – Very Compelling Circumstances exception”. The appellant pointed to three errors in the assessment of very compelling circumstances:
(i) The FtT had erred by giving weight to its presumption that the appellant’s wife could integrate into Algeria because she was a citizen of Morocco:
“Whilst Morocco and Algeria are both North African states, that does not impute that the partner has an innate ability to integrate in a neighbouring North African state, nor does it create a burden on her to disprove that her Moroccan heritage immunises her (and her daughter) from encountering serious difficulties in Algeria.”
(ii) The factors relevant to integration had been identified in SSHD v Kamara [2016] EWCA Civ 813, but these had not been taken into account.
(iii) It was procedurally unfair for the FtT to expect the appellant to have provided evidence of the obstacles to his wife’s integration in Algeria, given that the respondent had conceded that it would be unduly harsh for her and their child to relocate there.
42. Ground 3 was entitled “Failure to consider the best interests of the child as a primary consideration”. The appellant submitted here that the FtT had made “some findings” relevant to the child’s best interest but erred by not treating those best interests as a primary consideration.
43. The Upper Tribunal granted the appellant permission to appeal on all grounds.
The respondent’s Rule 24 response
44. With regard to Ground One, the respondent submitted that the only factors that the appellant said had been overlooked were those raised in the partner’s witness statement (“potentially changing jobs, struggling to balance education and looking after the child and some ‘significant difficulties’ which focused on pick up times and arranging care”) and the partner’s pregnancy. The “only conceivable finding” on this evidence was that separation would not be unduly harsh.
45. With regard to Ground Two, the respondent pointed out that in HA (Iraq), the difficulties a spouse or any children would face in the country of destination were identified as relevant factors in the assessment of whether there were very compelling circumstances over and above Exceptions 1 and 2. The appellant could therefore be expected to provide evidence relevant to these factors.
46. Moreover,
“When considering VCC they must be over and above those described in exceptions 1 and 2. When the Judge has found those exceptions are not met, any complaints about the lack of weight given to the Exception 2 factors will not change the outcome of the proportionality assessment.”
47. With regard to Ground Three, the respondent pointed out that the judge had given “significant weight” to the best interests of the child at [54], [57] and [59]. This demonstrated that they had been treated as primary consideration.
The error of law hearing of 31 March 2026
48. This appeal came before me for hearing on 31 March 2026. At the hearing, I informed the parties that I considered that the FtT had clearly misdirected itself in law at [43], because the fact that a relationship began when a foreign national offender’s status was in the UK unlawfully does not mean that Exception 2 cannot be met. Mr Chakmakjian made an application for permission to amend the appellant’s grounds to include this. I heard submissions from both parties as to whether it was in the interests of justice to exercise my discretion to allow such a late amendment. After careful consideration, I decided that it was. The error constituted a clear misapplication of the statutory scheme. Moreover, it was underlay Ground One, because it was the obvious reason for why the consideration of the wife’s circumstances was so limited. Finally, the appeal would have a significant impact on the best interests of two British citizen children.
49. Mr Simpson asked for an adjournment, which Mr Chakmakjian did not oppose. I issued directions for the appellant to put his new ground of appeal in writing, and for the respondent to serve any reply she wished to make to it prior to the resumed hearing.
The appellant’s new ground of appeal and the respondent’s reply
50. The appellant’s fourth ground is entitled: “Material misdirection to apply s.117B(4) to Exceptions in s.117C”. The appellant argues:
“6. It is acknowledged that s.117B is to be considered where the public interest question arises in all cases (s.117A(2)(a)). That is not the same as requiring it to be considered at every stage of every case. The FtTJ’s insertion of s.117B(4) into s.117C overlooks the concept of exceptions to the public interest in deportation articulated by s.117C(5) and (6)”.
51. The appellant relied on KO (Nigeria) v SSHD [2018] UKSC 53 at [22].
52. This error had been material because as a consequence of believing that little weight could be put on the relationship, a number of material considerations were ignored. These included that although the relationship had begun when the appellant was unlawfully in the UK, it had developed since 2019 while he was here lawfully.
53. In her position statement of 29 April 2024, the respondent conceded that the FtT had erred as contended under Ground Four. She nonetheless set out in detail that the scope of her concession was narrow. It was that the FtT erred by treating section 117B(4) as a “complete answer” to Exception 2 with regard to the wife. Although it was not a complete answer, it was a necessary factor in the Exception 2 consideration. The respondent acknowledged that in KO (Nigeria)the Supreme Court had found that Exception 2 was self-contained. However, the plain language of the statute provided that the considerations listed at section 117C were in addition to those set out at section 117B. As the Supreme Court had not expressly said that 117B(4) was “ultra vires” or “a drafting error” and “thus, they didn’t in any form expressly or impliedly rule that s.117B(4) must not be applied.”
54. The respondent then cited Kapikanya v Secretary of State for the Home Department [2025] EWCA Civ 987 at [48] for its endorsement of Lord Hamblen’s statement at [31] of HA (Iraq) in that
“the "unduly harsh test involves a comparison between the level of harshness which is "acceptable" or "justifiable" in the context of the public interest in the deportation of foreign criminals, and the greater degree of harshness which is connoted by the requirement of "unduly" harsh."
55. The respondent then submitted that “precariousness is also a relevant consideration as it goes to the question of what degree of harshness is in fact justifiable” (although how this can be inferred from Kapikanya was not spelt out).
56. She relied in addition on Agyarko and Ikuga, R (on the applications of) v Secretary of State for the Home Department [2017] UKSC 11 (22 February 2017) at [54] and submitted that:
“Where a relationship has been formed in precarious circumstances, any harshness that is then visited on the partner is more likely to be justifiable in the context of the public interest in the deportation of the foreign criminal.”
57. Without spelling this out, it appears that the respondent is arguing here that the question of the weight to be attached to family life is the same as the question of the consequences of deportation for a partner.
58. This appears to be the basis of her later submission:
“117B(4) characterises the relationship of the FNO and their partner. It follows that when considering the quality and strength of family life, within the confines of s.117C(5) that a tribunal would be right to recognise the effect of 117B(4), when concluding about whether the impact of the FNO’s deportation would be unduly harsh on the qualifying partner.”
59. The respondent further submitted that if the relationship was formed when one partner is in the UK precariously, it will have been “built on the knowledge their family may not be able to remain in the UK throughout their relationship”. This would reduce the harm to the partner, either from separating or from leaving the UK.
60. Finally,
“whether the relationship began when the A was here unlawfully or when their status was precarious remains a requirement to meet the immigration rules under Immigration Rules - Immigration Rules part 13: deportation - Guidance - GOV.UK 13.2.6 (d). Not meeting these rules is a relevant consideration to the public interest when it comes to 117C(6) Very Compelling Circumstances.”
61. Finally, the respondent submitted that the error was not material because the question of whether removal would have unduly harsh consequences was “all but conceded at the hearing”, and when the wife’s witness statement is considered, there is nothing in it that could possibly have met the high threshold required.
The hearing
62. At the hearing before me, the following documents were before the tribunal:
(i) The appellant’s composite bundle of 380 pages, filed on 19 March 2026; this included the respondent’s Rule 24 response to the first three grounds of appeal;
(ii) An appellant’s skeleton argument, dated 24 March 2026;
(iii) The appellant’s fourth ground of appeal, filed on 9 April 2024; and
(iv) The respondent’s position statement in relation to the fourth ground of appeal, filed on 29 April 2026.
63. I heard helpful submissions from both representatives. As they overlapped with the written submissions summarised above, I do not repeat them here. I will refer to any materially different submissions in the discussion below.
64. At the end of the hearing, I reserved my decision, which I now give with my reasons.
Discussion
65. In deciding whether the Judge’s decision involved the making of a material error of law, I have reminded myself of the principles set out in a long line of cases, including Ullah v Secretary of State for the Home Department [2024] EWCA Civ 201, at [26], Yalcin v SSHD [2024] EWCA Civ 74, at [50] and [51], Gadinala v SSHD [2024] EWCA Civ 1410, at [46] and [47], and Volpi & Anor v Volpi [2022] EWCA Civ 464, at [2-4] and of the danger of “island-hopping”, rather than looking at the evidence, and the reasoning, as a whole. See Fage UK Ltd & Anor v Chobani UK Ltd & Anor [2014] EWCA Civ 5 [114]. Particularly relevant here is the presumption that FtT judges know the law and have applied it correctly.
66. I consider that this is a case in which there is clear evidence of a misdirection in law by the FtT, sufficient to displace that presumption. I start with Ground 4.
67. I agree with the appellant’s submission that to import section 117B(4) into Exception 2 would be inconsistent with KO (Nigeria). In that case, the respondent had argued, unsuccessfully, that in deciding what was “unduly harsh”, other “wider public interests factors” were relevant, such as the parents’ immigration history: [6] That is similar to the argument the respondent is pursuing in this case with regard to the appellant’s immigration status.
68. In giving its reasons for rejecting the respondent’s argument, the Supreme Court began by considering the intention behind section 117C. It found that Parliament intended promote consistency, predictability and transparency in article 8 decision-making, first by approving the Immigration Rules of July 2012 and then (in 2014) by passing the new Part 5A of the 2002 Act (which contains sections 117A-117C): [12]-[14]. Lord Carnawath therefore started his interpretation of section 5A
“with the expectation that the purpose is to produce a straightforward set of rules, and in particular to narrow rather than widen the residual area of discretionary judgment for the court to take account of public interest or other factors not directly reflected in the wording of the statute.”:[15]
69. Lord Carnawath then endorsed Elias LJ’s reasoning in MA (Pakistan) Upper Tribunal (Immigration and Asylum Chamber) [2016] EWCA Civ 705 at [36] with regard to section 117B(6). It is worth setting that out here. At [16]-[17], Elias LJ wrote:
“16. The paragraphs in section 117B achieve different objectives. The structure of subsections (4) and (5) differs from subsections (1) to (3). The latter identify factors bearing upon the public interest which a court or tribunal is under a duty to consider but it is for the decision maker to decide upon the weight to give to these factors in making the determination, subject only to compliance with public law principles. Subsections (4) and (5) implicitly accept that the matters identified therein should be taken into account, but there is a direction as to the weight – or more accurately, the relative lack of it - which should be given to these considerations. Parliament has here sought to identify both relevance and weight.
“17. Subsection (6) falls into a different category again. It does not simply identify factors which bear upon the public interest question. It resolves that question in the context of article 8 applications which satisfy the conditions in paragraphs (a) and (b). It does so by stipulating that once those conditions are satisfied, the public interest will not require the applicant's removal. Since the interference with the right to private or family life under article 8(1) can only be justified where there is a sufficiently strong countervailing public interest falling within article 8(2), if the public interest does not require removal, there is no other basis on which removal could be justified. It follows, in my judgment, that there can be no doubt that section 117B(6) must be read as a self-contained provision in the sense that Parliament has stipulated that where the conditions specified in the sub-section are satisfied, the public interest will not justify removal. It is not legitimate to have regard to public interest considerations unless that is permitted, either explicitly or implicitly, by the subsection itself.”
70. In KO (Nigeria), Lord Carnawath considered the structure of section 117C:
“20. Turning to section 117C the structure is not entirely easy to follow. It starts with the general rules (1) that deportation of foreign criminals is in the public interest, and (2) that the more serious the offence the greater that interest. There is however no express indication as to how or at what stage of the process those general rules are to be given effect. Instead, the remainder of the section enacts specific rules for two categories of foreign criminals, defined by reference to whether or not their sentences were of four years or more, and two precisely defined exceptions. For those sentenced to less than four years, the public interest requires deportation unless exception 1 or 2 applies. For those sentenced to four years or more, deportation is required “unless there are very compelling circumstances, over and above those described in Exceptions 1 and 2”.
“21. The difficult question is whether the specific rules allow any further room for balancing of the relative seriousness of the offence, beyond the difference between the two categories. The general rule stated in subsection (2) might lead one to expect some such provision, but it could equally be read as no more than a preamble to the more specific rules. Exception 1 seems to leave no room for further balancing. It is precisely defined by reference to three factual issues: lawful residence in the UK for most of C’s life, social and cultural integration into the UK, and “very significant obstacles” to integration into the country of proposed deportation. None of these turns on the seriousness of the offence; but, for a sentence of less than four years, they are enough, if they are met, to remove the public interest in deportation. For sentences of four years or more, however, it is not enough to fall within the exception, unless there are in addition “very compelling circumstances”.
“22. Given that exception 1 is self-contained, it would be surprising to find exception 2 structured in a different way. On its face it raises a factual issue seen from the point of view of the partner or child: would the effect of C’s deportation be “unduly harsh”? Although the language is perhaps less precise than that of exception 1, there is nothing to suggest that the word “unduly” is intended as a reference back to the issue of relative seriousness introduced by subsection (2). Like exception 1, and like the test of “reasonableness” under section 117B, exception 2 appears self-contained.”
71. Mr Simpson argued before me that it would be inconsistent with the statute not to apply all of the section 117B factors to the consideration of Exception 1 and Exception 2, because section 117A(2)(a) says that the factors listed in section 117B apply in “all cases”. However, this submission flatly contradicts KO (Nigeria). Section 117A(2)(b) says that the considerations listed in section 117C apply “in cases concerning foreign criminals”. This is just as unconditional as section 117A(2)(a), even if the word “all” is missing. Yet the Supreme Court held in KO (Nigeria) that in applying Exception 2, only the impact on the child was relevant and even the general principle that “The more serious the offence committed by a foreign criminal, the greater is the public interest in deportation of the criminal” did not apply.
72. Mr Simpson suggested that the Supreme Court treated Exception 2 as self-contained because of specific principles relating only to children and pointed to the fact that the it had cited Zoumbas v Secretary of State for the Home Department [2013] UKSC 74. This ignores the Court’s focus on the structure and language of the statute itself. It further ignores that the Court applied the same reasoning to find that Exception 1 is also self-contained, and Exception 1 is silent about children. Finally, it ignores the fact that at [22], the Court referred to the impact on “the partner or child”. The decision was expressly not confined to the impact on children.
73. Perhaps most fatal to the respondent’s argument here is what was said by Lord Hamblen (with whom Lord Reed, Lord Leggatt, Lord Stephens and Lord Lloyd-Jones agreed) in HA (Iraq) at [5]:
“a proportionality assessment will be carried out in all foreign criminal cases, unless the medium offender can show that Exception 1 (which relates to length of lawful residence and integration) or Exception 2 applies, in which case the public interest question is answered in favour of the foreign criminal, without the need for such an assessment.”
74. This is simply another way of saying that Exceptions 1 and Exceptions 2 are self-contained. If they are met, there is no need to consider any other factors – whether the seriousness of the offence (as discussed in KO (Nigeria) or the foreign offender’s immigration status, as the respondent submits here.
75. I deal briefly with the other submissions made in the position statement. I can see no basis for treating the question of the weight to be given to the relationship as the same as the question of the consequences of separation for the partner. The words used are plainly different, and I am not aware of any case in which the Court of Appeal or the Supreme Court have treated them as the same.
76. This is not to say that the partner’s immigration status can never play a role in the Exception 2 assessment (although Mr Simpson conceded he could not identify any case in which it had). The partner’s immigration status could have affected the nature of the couple’s relationship, such that the partner retained some emotional distance or financially independence that would mitigate the effects of separation. The couple could have made specific plans for how to cope if the foreign offender was required to leave the country. But these would be specific findings of fact about the consequences of deportation on the particular couple.
77. It was uncontroversial that 117B(4) applies to the proportionality assessment conducted pursuant to section 117C(6). This adds force to the respondent’s argument that the error cannot have been material. The difficulty here is that the FtT carried forward the mistaken belief that the consequences for the wife were effectively irrelevant from [43] to [55] of its decision. As noted immediately above, I am not persuaded that the issue of the weight to be given to the relationship is precisely the same as the issue of the consequences of separation on the partner. In other words, the FtT was required somewhere in the decision to take into account the impact of separation on the appellant’s wife, and it did not so.
78. Secondly, it is trite that little weight does not mean no weight. Here, there was a fact capable of having a material impact on the amount of weight that could be put on the relationship that was not taken into account, which was that in spite of the relationship having started when the appellant was in the UK unlawfully, the appellant had later obtained lawful residence on the basis of it.
Ground One
79. Ground One overlaps with Ground Four. Although it would have been open to a reasonable judge not to put much weight on the various issues raised in the wife’s statement, the problem with the FtT’s undue harshness assessment is much simpler than whether material factors were not given proper consideration. There was, expressly, no consideration of the impact of deportation on the appellant’s wife at all, as the FtT stated clearly at [43]. Some of the adverse consequences raised by the wife in her statement were considered at [44], but only through the prism of how they might affect her ability to care for her child. There was, deliberately, no consideration of the direct impact on the wife. This is clearly an error.
Ground Two
80. Ground Two is clearly made out. Although the FtT was entitled to question the respondent’s concession on undue harshness in the “go” scenario, once the respondent confirmed that the concession was maintained, it was not entitled to go behind it. See: Carcabuk & Bla v SSHD 00/TH/01426 at [11], cited with approval in MH (Appendix EU; withdrawal of concession) Albania [2025] UKUT 00351 at [40].
81. Moreover, the FtT’s decision to go behind the concession was clearly procedurally unfair. For the respondent to say that the appellant should have prepared evidence about the impact on his wife and child of relocating to Algeria because it is an issue raised in HA (Iraq) at [51] is to ignore the adversarial nature of proceedings before the FtT and the duty on the parties to identify the issues in dispute, so frequently emphasised in recent case law, including in Lata (FtT: principal controversial issues) [2023] UKUT 00163 (IAC), MH and AL v SSHD [2026] EWCA Civ 370. The issue had been conceded by the respondent, and the appellant was entitled to consider that it would not be before the FtT.
82. This does not mean that the FtT could not have allowed the respondent to withdraw the concession at the hearing had she sought to do so. But in this case, the FtT would have been required to consider whether the appellant had had a fair opportunity to address the new issue and, if not, whether the hearing should be adjourned. MH at 55(VII).
83. Quite conspicuously, that is not what happened here. The FtT went behind the respondent’s concession, but only after the hearing and after indicating to the appellant that the concession still stood. This quite obviously denied the appellant a fair opportunity to address the issue of whether it would be unduly harsh for the family to relocate to Algeria together, either by requesting an adjournment and adducing new evidence or at least in oral evidence. It is significant here that the FtT commented at [29] on the wife’s failure to explain why she would remain in the UK rather than relocate to Italy and at [30] on the appellant’s failure to explain the difficulties he would face in Algeria. Then at [58], it remarked that it was “unclear” why it would be severe or bleak for the appellant’s wife to live in Algeria because it was “something that she simply had not given evidence on”. I consider the situation is analogous to when a person has not given oral evidence in reliance on a concession. To echo what was said in MH, the “implications for procedural fairness were stark”: [40]
84. The unfairness was compounded by the perversity of the FtTJ’s comment that his “scepticism” about the respondent’s concession was based partly on the fact that the appellant’s wife had been “born in a neighbouring North African country”. The FtTJ may have independent expert knowledge about the various countries of North Africa that entitled him to conclude that in spite of their different ethnic make up, geography, and historical and political development, all North African countries that neighbour each other are sufficiently socially and culturally similar that it can be presumed that a person born in one country would face no significant difficulties in relocating to another. If so, he should have put that expert knowledge to the appellant’s wife for comment and referred to its in his decision. I consider it more likely that the FtT has relied here on the presumption that one North Africa country cannot be significantly different from another. It is even more concerning that this presumption is described as arising out of the appellant’s wife’s birth in Morocco. Even if the FtT was right to presume that familiarity with Moroccan culture would assist a person in integrating into Algeria, there is no consideration of whether the appellant’s wife was in fact familiar with Moroccan culture. I do not see that there was any evidence about this before the FtT. The appellant’s wife did not mention Morocco in her statement, other than to say she was born there. The FtT then found at [29] that “[h]er family are in Italy”. The suggestion of unconscious bias is deeply concerning.
85. Mr Simpson submitted that this was no different from the Court of Appeal’s comment in Ackom v SSHD [2025] EWCA Civ 537 that “life in Germany is not so different from life in the UK”. I disagree. The Court of Appeal was comparing its own country, the UK, to a country with which the UK had shared an ever-deepening legal and institutional framework and freedom of movement of goods, services, people and culture for 47 years, and with which it continued to share the common framework of the European Convention on Human Rights. It was not surprising that the Court considered itself entitled, under those circumstances, to take judicial notice of the cultural and social similarities between the two countries. There is nothing to suggest that the FtTJ had such a deep knowledge of the culture of either Morocco or Algeria.
86. For these reasons, Ground Two is made out.
Ground Three
87. Ground Three is also made out. Although the FtT refers to the “best interests” of the appellant’s child three times (at [54], [57], and [59]), it never identifies where those best interests lie. The paragraph entitled “unduly harsh on daughter” contains a number of factual findings relevant to the best interests assessment, but the best interests assessment never takes place. That, in itself, is no error at this stage of the decision, because the question being addressed here is a different one, which is whether the consequences of her father’s deportation would be unduly harsh. The error arises because there is no best interests assessment elsewhere. At [54], the FtT finds that the family “has options other than living in the UK, but asserts that “I nevertheless give significant weight to the best interests of the British child in Britain”. I take this as a reference to what was said in ZH (Tanzania) v Secretary of State for the Home Department [2011] UKSC 4 and subsequent cases about the important benefits that, in general, flow from being a British child living in Britain. This is repeated at [59] when the FtT says “I have already considered the bests interests of the child as a result of her nationality”.
88. There is a separate reference at [57] to placing significant weight on the child’s best interests ”despite not finding that the Appellant’s deportation would be unduly harsh on her”. I read this as a reference to the factors identified in the unduly harsh consideration: the loss of physical care and direct emotional support from her father and the decline in the family’s financial position. What the FtT does not do is bring the various relevant factors together and make a clear decision about where the child’s best interests lie. Different issues are parcelled out along the HA (Iraq) checklist. I consider that this is inconsistent with Zoumbas v Secretary of State for the Home Department [2013] UKSC 74 at [10]:
“(4) While different judges might approach the question of the best interests of a child in different ways, it is important to ask oneself the right questions in an orderly manner in order to avoid the risk that the best interests of a child might be undervalued when other important considerations were in play;
“(5) It is important to have a clear idea of a child's circumstances and of what is in a child's best interests before one asks oneself whether those interests are outweighed by the force of other considerations;
“(6) To that end there is no substitute for a careful examination of all relevant factors when the interests of a child are involved in an article 8 assessment.”
Materiality
89. Even taken together, it is not obvious that these errors were material. With regard to the consequences of the appellant’s removal on his wife, I agree with Mr Simpson’s submission that even if everything that the appellant’s wife said in her witness statement was accepted, the elevated threshold of unduly harsh consequences could not be met.
90. As to the errors regarding whether the wife and child could relocate with the appellant to Algeria, it is difficult to see how they would be material if the judge was entitled to find that it would not be unduly harsh for the wife and children to remain in the UK alone.
91. Moreover, there were several factors that any reasonable judge would have weighed against the appellant. These included the contents of the OASys report and the contradictions between the appellant’s account of his offending and the account contained in that report and in the sentencing remarks.
92. I agree with Mr Simpson that it is difficult to see how the threshold of very compelling circumstances could be met on this evidence.
93. On the other hand, the assessment of whether there were very compelling circumstances under section 117C(6) requires a consideration of all relevant factors. Several factors were not considered here: the best interests of the child, properly identified; the effects of removal on the appellant’s wife; the appellant’s period of lawful residence; and the fact that the appellant’s wife was pregnant, having recently suffered a miscarriage and said she needed her husband’s support for this reason (a factor Mr Chakmakjian emphasised in his submissions). Moreover, a reasonable judge could have accepted the submission, made in the skeleton argument, that in assessing the nature and seriousness of the appellant’s offence, the sentence was the starting point but it was relevant that the sentence reflected in significant part not the effect on the victim or on society but the market value of the high-end luxury products that were stolen.
94. The question before me is not whether it is likely that the decision would have been the same if the FtT had not made the identified errors. It is whether it would inevitably have been the same. On balance, I conclude that that I cannot say that this high threshold is met.
95. I therefore conclude that the decision contained material errors of law requiring it to be set aside.
96. I preserve no findings. This is for two reasons. First, human rights claims must be decided on the basis of the situation as at the date of hearing. The rehearing of this appeal will take place at least a year after the hearing before the FtT, and this is capable of being a significant period of time in the lives of young children. Secondly, there is a risk that the unfairness and unconscious bias displayed in the decision may have affected more than the findings on relocation to Algeria.
97. Taking into account the guidance set out in Majera v SSHD [2025] EWCA Civ 159, Begum (Remaking or remittal) Bangladesh [2023] UKUT 00046 (IAC) and AEB v SSHD [2022] EWCA Civ 1512, as well as the Practice Statement of 11 June 2018, I consider that it is appropriate to remit this matter to the FtT for a fresh hearing. No factual findings are preserved, and the proceedings below were infected by unfairness.
Notice of Decision
The FtT’s decision of 19 September 2025 is set aside in its entirety. The appeal is remitted the FtT for a hearing de novo before any other judge.

E. Ruddick

Judge of the Upper Tribunal
Immigration and Asylum Chamber

1 July 2026