Tribunal decisions

The decision

IN THE UPPER TRIBUNAL
IMMIGRATION AND ASYLUM CHAMBER Case No: UI-2025-005884
First-tier Tribunal No: HU/00868/2025

THE IMMIGRATION ACTS

Decision & Reasons Issued:
On 16th April 2026

Before

UPPER TRIBUNAL JUDGE JACKSON

Between

DANIEL OKERJIYE OSIOH
(NO ANONYMITY ORDER MADE)
Appellant
and

SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: Ms K McCarthy of Counsel, instructed by AurexLegal Ltd
For the Respondent: Ms L Clewley, Senior Home Office Presenting Officer

Heard at Field House on 30 March 2026

DECISION AND REASONS
1. The Appellant appeals with permission against the decision of First-tier Tribunal Judge Singer promulgated on 3 October 2025, in which the Appellant’s appeal against the decision to refuse his human rights claim in the context of deportation dated 19 June 2025 was dismissed.
2. The Appellant is a national of Nigeria, born on 29 June 1978, whose application for entry clearance to the United Kingdom was refused in June 2006, however he subsequently entered the United Kingdom that year in a false identity. The Appellant used the identity of ‘Sheldon Cooper’ for an application for leave to remain as a student which was granted from 1 September 2006 to 8 December 2010 and used the same false identity to make an application for indefinite leave to remain/a no time limit stamp on 21 March 2011 which was refused. Further applications were made in the same false identity on family and private life grounds, initially on 12 December 2014 which was refused on 15 February 2016 and then on 21 September 2018 which was granted with leave to remain to 11 October 2021; and a further application made on 24 September 2021. The Appellant also made an application under the EU Settlement Scheme which was withdrawn.
3. On 17 February 2025, the Appellant was convicted of making false representations for gain and for seeking leave to enter/remain by deception, for which he was sentenced to 12 months’ imprisonment for both, to run concurrently.
4. On 21 March 2025, the Appellant was given notice of a decision to deport him from the United Kingdom. The Appellant’s representations against deportation were on the basis of his private and family life in the United Kingdom, where he has a partner (a Nigerian citizen with limited leave to remain to 2027) and a 14 year old son (a British citizen, born in the United Kingdom with health conditions).
5. The Respondent refused the Appellant’s human rights claim in the context of deportation for the following reasons. First, although it was accepted that the Appellant was in a genuine and subsisting relationship with his partner and qualifying child and that it would be unduly harsh for them to relocate to Nigeria with him; it was not accepted that it would be unduly harsh for them both to remain in the United Kingdom without him. In particular, the Respondent considered that the Appellant’s son could be cared for by his mother, as he was whilst the Appellant was in prison and that there was a public support network available to the family in the United Kingdom; as well as the Appellant being able to maintain communication with them from Nigeria, where he can seek employment and offer financial support from there. Secondly, the Appellant did not meet the private life exception to deportation as he had not lived in the United Kingdom lawfully for more than half of his life; he was not socially and culturally integrated here given the long-term use of deception causing harm to the individual whose identity he assumed and finally there would be no very significant obstacles to the Appellant’s reintegration in to Nigeria. Thirdly, there were no very compelling circumstances to outweigh the public interest in deportation. Finally, there was consideration as to the Appellant’s medical conditions, which included stage 3 chronic kidney disease and depression, but it was found that there would be access to appropriate healthcare in Nigeria and the high threshold for an Article 3 claim on health grounds was not met.
6. Judge Singer dismissed the appeal in a decision promulgated on 3 October 2025 on all grounds, only one aspect of which is challenged in this appeal as to whether the family life exception was met. The conclusions that the Appellant did not meet the private life exception to deportation; that there were no very compelling circumstances to outweigh the public interest in deportation and that the Appellant’s removal would not breach Article 3 of the European Convention on Human Rights are not rehearsed here in detail as the single ground of appeal does not relate to any of these aspects of the decision.
7. The First-tier Tribunal accepted that the Appellant’s son, “N” is a qualifying child and his mother a qualifying partner; and that it would be unduly harsh for them both to relocate to Nigeria. N has autism and Blount’s disease, for which he has required surgery and in the past and will do so again in the future. The First-tier Tribunal records the medical evidence (which was not disputed); evidence form the school as to the Appellant’s active role in N’s education; evidence of prison visits and N’s distress at the end of them; and an Independent Social Work report, which included reference to a period of parental separation and the impact of N’s autism on his day to day life, together with support received at school for part of this. The key paragraphs dealing with the findings in relation to N are as follows:
39. There is evidence before me that N suffers with regard to a number of these areas, and, his ability to regulate his emotions and cope with change is hampered. It is clear from his account to the ISW that N suffered and was very distressed when the Appellant was removed from his life during his period of imprisonment and his mother consequently found it very difficult to cope. He stopped eating for two weeks. However his mother described to the ISW (p.42 AB) how, with the help of the school’s in-house safeguarding team, he was persuaded out of this, albeit with visits to his father, coupled with the argument that N’s father would be coming home once he served his sentence. It is relevant that arrangements were made regarding wrap-around-care and there was some flexibility shown by the school. It is said that N’s conduct in school and his results suffered as he was highly emotionally distressed. I also observe that this was in the context of it being explained to N that there was the prospect of his father being released from detention and returned to him on a reasonably foreseeable date – something which would be absent in the “stay scenario” where the Appellant would be deported and communication could only be continued via modern means of communication and or visits, neither of which would be a substitute for the close day to day personal contact N has enjoyed with his father, and I accept that there is evidence in the Appellant’s bundle that the cost of flights are not cheap.
40. I accept that N’s health situation is further exacerbated by the fact that he suffers from Blount’s disease, and has been undergoing corrective surgeries, something which is a further challenge for him to have to deal with. Blount’s disease, or tibia vara, is a progressive growth disorder of the growth plates in the shinbone (tibia) that causes the lower leg to bow outwards, unlike the normal, temporary bowing in young children. It can lead to leg length discrepancies and pain, especially in older children, but treatment is available including bracing, surgery and physical therapy. N requires regular check-ups as can be seen from the evidence of his consultant surgeon, Mr Gangadharan, and he is due to have further surgery. There is evidence that it has been the Appellant taking N to these appointments in the past. The Respondent asserts that Ns mother could take him to appointments which is correct, but the importance of routine for this 14-year-old boy who is going through a very challenging period of his life cannot be played down.
41. It is relevant that N’s mother gave evidence that when she was separated from the Appellant it was hard, but she was able to liaise with the school to put in place wrap around care so that meals were provided and she could pick him up at different times. She references the increase in the cost of living over recent years as something which would make it hard if the Appellant were deported as she was struggling at present to pay the rent and utility bills. She said that she did not want to have to give up work and have to claim public funds. I accept that her mother has recently passed away and she is still grieving. N’s mother asserts she suffers from anxiety and depress and suicidal thoughts, severe anaemia and arthritis on her knee. Her medical records at Part L of the Respondent’s bundle disclose a past medical history of polycystic ovarian syndrome, osteoarthritis, aneamia and sickle cell trait. She herself said in her statement at paragraph 53 that she had no plans to carry out any previous suicidal ideation and was not prescribed anything by her GP. Her GP records do not disclose mental health problems.
42. I accept, looking at all relevant matters, that it is in N’s best interests for his father to remain with him as a family unit in the UK. This would provide him with vital continuity, routine and stability, which is for him particularly important given his autistic spectrum condition and his physical condition; whereas if the Appellant were deported and N and his mother were to remain in the UK without him that would, I find, be considerably less in his best interests. That would deprive N and his mother (who would obviously remain here to look after him) of daily face to face contact with the Appellant and, on the evidence before me, that is likely to cause both of them emotional harm. Whilst I accept that it is probable that if returned to Nigeria the Appellant would be able to find some employment, he would not be able to contribute a great deal given he would need to source and fund his own healthcare and other expenses on top of this. More significantly even if he would be able to contribute something financially, while a mitigating feature to some extent, that would only serve to alleviate things to a small degree. N’s mother currently receives universal credit with a standard housing allowance and single child allowance but there is a substantial deduction as a result of earnings reported by her employer. If her circumstances were to change and she stopped employment or worked fewer hours she would have to report this but she would, I find, be able to inform the Department for work and pensions and be entitled to have her universal credit payments structured in a different way, so that her son’s welfare needs are not compromised. I accept that, although there would likely be the potential for help from the school’s in house safeguarding team as there was before, and that wraparound care could be put in place, the emotional harm that would be caused to N would be serious given his autism spectrum condition and his physical health condition. However, I remind myself that “unduly harsh” does not equate with “uncomfortable”, “inconvenient”, “undesirable” or merely “difficult”. Rather, it poses a considerably more elevated threshold. “Harsh” in this context, denotes something severe, or bleak. It is the antithesis of pleasant or comfortable. Furthermore, the addition of the adverb “unduly” raises an already elevated standard still higher; but it is nevertheless not as high as that set by the “very compelling circumstances” test in s.117C(6). It does not require a test involving a notional comparator partner or child. Weighing all of the evidence in the round, with regard to the “stay scenario”, I do accept that it would be harsh for N and for his mother to remain in the UK without the Appellant. However, having regard to the matters set out above, I am not able to find that scenario exceeds the already elevated standard to be unduly harsh for either N or his mother, as understood in HA (Iraq) and others v SSHD UKSC22 and MK (Sierra Leone) v SSHD [2015] INLR 563. The Appellant therefore does not meet the family life exception.
The appeal
8. The Appellant appeals on the single ground that the First-tier Tribunal erred in law in misapplying the test for “unduly harsh” in section 117C of the Nationality, Immigration and Asylum Act 2002 and reaching an irrational conclusion on the facts that the threshold was not met. There was no dispute between the parties that the First-tier Tribunal had entirely accurately self-directed as to the nature of the test to be applied as whether the impact of deportation would be unduly harsh in accordance with HA (Iraq). The issue was whether the finding of serious harm, even with mitigating measures in place to support N, could rationally be anything other than equating to deportation being unduly harsh.
9. On behalf of the Appellant, Ms McCarthy emphasised that the ordinary meaning of ‘serious harm’ meets and equates to something which is serious or bleak and as such meets the unduly harsh threshold. She submitted that it was impossible for the Appellant to understand the conclusion that the threshold was not met with the factual finding that deportation would cause serious harm, which were the words deliberately chosen in the decision as to the impact of deportation on N. The Appellant’s case was that the finding of serious harm permitted of only one outcome on the appeal, that the family life exception was met on the basis that it would be unduly harsh for N to either remain in the United Kingdom without the Appellant and unduly harsh for him to relocate to Nigeria with him (the latter of which was not in any event in dispute).
10. On behalf of the Respondent, Ms Clewley relied on the high threshold for a rationality challenge, particularly in circumstances where there is an unimpeachable self-direction as to the correct legal test to be applied. Ms Clewley relied on MA (Somalia) v Secretary of State for the Home Department [2010] UKSC 49 [at 46] to the effect that the Upper Tribunal should be slow to find that a Judge failed to apply a correct self-direction and invited me to use caution in finding such an error in this context.
11. Ms Clewley also noted that the First-tier Tribunal did not find that the impact on N would be serious harm, but that there would be emotional harm that would be serious; which she distinguished as a factual finding rather than legal assessment, which then followed with the finding that deportation would be harsh but not unduly harsh. Further, that the finding of emotional harm that would be serious could not be divorced from the wider considerations and assessment within paragraph 42 of the First-tier Tribunal’s decision. Overall, it was submitted that the conclusion was a rational one which was open to the First-tier Tribunal to reach.
12. In the alternative, the Respondent submitted a cross-appeal that in any event, the First-tier Tribunal had failed to give adequate reasons for a finding of emotional harm that was serious given the range of mitigation measures that were available from the school and social services. The evidence did not in any event support a finding that deportation would be unduly harsh on N, particularly given the finding that N’s welfare needs would not be compromised.
Findings and reasons
13. The sole issue in this case is whether the First-tier Tribunal could rationally find that the Appellant’s deportation would not be ‘unduly harsh’ on his son, N, in circumstances where it had found that it would cause serious emotional harm to him to remain in the United Kingdom without the Appellant. At the outset I note that there is no substantive difference between ‘serious emotional harm’ and ‘emotional harm which is serious’, they are one and the same thing and nothing in this decision turns on the order in which the sentence was phrased in paragraph 42 of the First-tier Tribunal’s decision.
14. The test for rationality is a high one and is summarised by McCloskey J in Secretary of State for the Home Department v Greenwood (No. 2) (para 398 considered) [2015] UKUT 629 (IAC) as follows:
16. These principles are based in authority of unmistakable pedigree and binding force. They are contained in Edwards v Bairstow [1956] AC 14. While their Lordships were not uniform in their formulation of the governing principle, it suffices to recall what Lord Radcliffe stated (at page 9):
“I do not think that it much matters whether this state of affairs is described as one in which there is no evidence to support the determination or as one in which the evidence is inconsistent with and contradictory of the determination or as one in which the true and only reasonable conclusion contradicts the determination. Rightly understood, each phrase propounds the same test.”
The test for unreasonableness, which later became known as perversity, or irrationality, is whether the decision under appeal is one which no person acting judicially and properly instructed on the relevant law could reasonably have made. The restraint which an appellate court must exercise, having regard to these principles, features in the decision of the House of Lords in Moyna v Secretary of State for Work and Pensions [2003] UKHL 44. In R v Monopolies and Mergers Commission, ex parte South Yorkshire Transport [1993] 1 WLR 23, Lord Mustill offered the following pithy summary (at 32-33):
“In such a case the Court is entitled to substitute its own opinion for that of the person to whom the decision has been entrusted only if the decision is so aberrant that it cannot be classed as rational.”
Decisions which fall “within the permissible field of judgment” do not satisfy this elevated hurdle.
17. The second question which arises is whether the Judge committed any error of law in his application of the correct legal test. We find no such error. In the context of the present appeal there is no suggestion that the Judge left out of account any material evidence. Nor can it be suggested that the Judge allowed anything extraneous to enter the equation. The touchstone for intervention is irrationality. This Tribunal can find an error of law in the context of this appeal only if the outcome of the application of the correct legal test is vitiated by irrationality. This is a self-evidently elevated threshold, one which is rarely satisfied in practice and which, interestingly, does not feature expressly in many recent Court of Appeal decisions belonging to this sphere. The test for irrationality has been formulated in a variety of tried and trusted ways. Was it reasonably open to the Judge taking into account all material factors and disregarding everything extraneous to reach the conclusion under challenge? Another formulation is: did his conclusion fall within the band, or range, of conclusions reasonably open and available to him? There is also the repeated admonition to appellate courts and tribunals that what they might have done as a first instance court or tribunal is not in point. Thus while it may be that not every first instance immigration judge would have reached the conclusion under challenge in this appeal this does not vitiate in law the decision.
15. In considering this appeal I also remind myself that “Appellate courts should not rush to find such misdirections simply because they might have reached a different conclusion on the facts or expressed themselves differently.” [per Baroness Hale at 30 in Secretary of State for the Home Department v AH (Sudan) [2007] UKHL 49] and that “If … a tribunal articulates a self-direction and does so correctly, the reviewing court should be slow to find that it has failed to apply the direction in accordance with its terms” [per Sir John Dyson SCJ at 46 in MA (Somalia)].
16. There is no dispute in the present appeal that the self-direction given in the First-tier Tribunal’s decision was entirely correct as to the unduly harsh test as stated in HA (Iraq) and the Upper Tribunal should be slow to find that in those circumstances the First-tier Tribunal failed to apply that test correctly. The threshold is also a high one to show that no rational Judge could have reached the conclusion on these facts and findings that the test was not met.
17. The Appellant’s case is in essence that ‘serious harm’ equates to a situation which is unduly harsh as a matter of the ordinary and natural meaning of that phrase on the facts and that no other conclusion was possible once that particular finding had been made on the evidence. I disagree for the following reasons.
18. First, ‘serious harm’ is a factual finding which is not, as a matter of natural language synonymous with the test for unduly harsh, which requires an elevated standard higher than simply harsh, which itself denotes something severe or bleak and the antithesis of pleasant or comfortable. Serious harm would in my view equate to an impact which is harsh, as the First-tier Tribunal found in this case, but does not, of itself by the nature of language used or the finding itself, necessarily equate to the elevated threshold of unduly harsh.
19. Secondly, the finding of serious harm has to be read in context, it is not the only finding or factor which was relevant to the First-tier Tribunal’s decision as to whether deportation was unduly harsh. Paragraph 42 expressly refers to all of the evidence in the round, set out in detail in paragraphs 35 to 42. Those factors include the Appellant’s age; his length of residence; his British citizenship; his relationship with the Appellant and his mother (and in particular the benefits of support from the Appellant, including as to stability and routine); his education; his autism and Blount’s disease (together with medical evidence on both and the Appellant’s involvement in care); support from school, potential support financially through benefits, from school and social services; potential contact with the Appellant in Nigeria (including the cost of flights); the Appellant’s likely circumstances in Nigeria in terms of potential financial contribution; N’s mother’s health and employment and an overall assessment of N’s best interests as a primary consideration. Read in context, the finding of ‘serious harm’ could not of itself have been determinative or lead to only one conclusion that deportation would be unduly harsh.
20. Finally, the threshold both for a rationality challenge and to interfere with a decision of an expert Tribunal who heard and considered the evidence pursuant to an unimpeachable self-direction as to the law are both high. In this case, the threshold is simply not met. The Appellant would have to show that the only rational conclusion on these findings, including that of serious harm, would be that the legal test for unduly harsh would always be met as such a finding would not rationally permit of any other conclusion. However the test for rationality is put, within the range of examples of this set out above, the conclusion reached by the First-tier Tribunal was one which applied the correct legal test and was within the range of reasonable conclusions open to the Judge. Whilst it may be that others may have come to a different conclusion on those facts, that is not the test.
21. For these reasons, I find no error of law in the First-tier Tribunal’s decision.

Notice of Decision

The making of the decision of the First-tier Tribunal did not involve the making of a material error of law. As such it is not necessary to set aside the decision.

The decision to dismiss the appeal is therefore confirmed.

G Jackson

Judge of the Upper Tribunal
Immigration and Asylum Chamber

4th April 2026