Tribunal decisions

The decision

IN THE UPPER TRIBUNAL
IMMIGRATION AND ASYLUM CHAMBER Case No: UI-2026-000128
First-tier Tribunal No: HU/00647/2025

THE IMMIGRATION ACTS

Decision & Reasons Issued:

27th August 2026

Before

UPPER TRIBUNAL JUDGE LINDSLEY

Between

GAVIN VICTOR FRASER
(ANONYMITY ORDER NOT MADE)
Appellant
and

SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: Mr J Trussler, of Counsel, instructed by Soloman Solicitors
For the Respondent: Ms S Keerthy, Senior Home Office Presenting Officer

Heard at Field House on 19 August 2026

DECISION AND REASONS
Introduction
1. The appellant is a citizen of Grenada born in 1972. He came to the UK on 18th September 2006 with an EEA family permit as the husband of an EEA national exercising Treaty rights. On 27th April 2012 he applied for permanent residence as a partner of an EEA national, which was initially refused but was granted on 20th September 2012. On 5th April 2021 he was given indefinite leave to remain under the EUSS.
2. On 21st October 2024 the appellant was convicted at Birmingham Crown Court of the intentional strangulation and assault occasioning actual bodily harm of his wife, and on 4th December 2024 he was sentenced to 15 months imprisonment. He was also subject to a restraining order preventing him having direct or indirect contact with her. As a result of this conviction a deportation order was signed against him on 26th March 2025, and the appellant appealed against the decision refusing his human rights application to remain to the First-tier Tribunal. The appellant’s appeal against this decision was allowed on Article 8 ECHR grounds by a First-tier Tribunal Judge after a hearing on the 16th June 2025.
3. Permission to appeal against this decision was granted by Upper Tribunal Judge O’Callaghan on 4th February 2026, and Upper Tribunal Judge Hoffman found that the First-tier Tribunal had erred in law for the reasons set out in his decision of 19th May 2026, which is appended to this decision as Annex A. Judge Hoffman found that there were errors in the consideration of the family life exception to deportation with respect to the stay scenario and that these errors infected the decision with respect to very compelling reasons over and above the exceptions, and as a result set aside the decision allowing the appeal.
4. The matter now comes before me to remake the appeal by way of a transfer order. Judge Hoffman preserved the finding that it would be unduly harsh with respect to the appellant’s youngest child for her to accompany the appellant to Grenada, and thus the issues in the remaking are firstly to determine the appeal with respect to the “stay scenario”, where it is posited that the appellant’s daughter remains in the UK whilst he is deported, under the family life exception to deportation at s.117C (5) of the Nationality, Immigration and Asylum Act 2002; and secondly to determine the appeal with respect to whether there are very compelling circumstances over and above the exceptions applying s.117C(6) of the Nationality, Immigration and Asylum Act 2002. At the start of the hearing, I established that Ms Keerthy accepted that the restraining order, which is included in the bundle for the hearing, was just in relation to the appellant’s ex-partner and not in relation to his daughters as implied by her skeleton argument.
Evidence & Submissions Remaking
5. The pertinent evidence of the appellant from his two witness statements and oral evidence is in, short summary, as follows. He met his wife, Edyta Fraser, whilst working on cruise ships in Miami. She is a Polish citizen. She ceased working on cruise ships, and he joined her in Poland where they married in September 2005. He obtained an EU visa to join her in the UK in the same year. They have two daughters SMF born in June 2007 and GSF born in 2014. SMF is a British citizen and is now an adult, GSF has settled status in the UK and is 13 years old. In the UK the appellant worked in security and after a couple of years his wife became a stay-at-home mother. Prior to his arrest and incarceration for his criminal offence the appellant lived continually with his daughters and was an attentive and hands on father cooking, cleaning and reading and enjoying the company of his children chatting and eating after school.
6. The appellant is very sorry for his criminal behaviour towards his wife and ashamed of what he did, which was recognised by the sentencing judge as out of character, and it was clear that it happened in the context of his drinking alcohol. He has not consumed alcohol since the incident. His licence conditions have now ended. If he is deported, he feels he will lose everything that is dear to him. He has no family in Grenada as his mother, brother and sister all now live in the USA, and he will not be able to visit them because of his criminal record. In the UK he has his daughters, friends and church. He keeps in touch with his daughters through GSF’s mobile phone on WhatsApp, via both calls and messages. He has only been able to supply the messages since May 2026 because he used a different number prior to this which he had to abandon as it had been hacked. He mostly chats with GSF at the weekends, with just a few texts during the week. He is very happy with GSF’s progress at school. He believes that his daughters are cared for solely by his ex-partner as he does not believe his ex-partner has family in the UK. The appellant has not met his daughters face to face since his arrest except at the First-tier Tribunal hearing in August 2024 and the bail hearing in May 2025. He has not done this because he cannot make arrangements to do this with GSF because he cannot contact his ex-partner because of the restraining order. He has not met with his older daughter, SMF, who is now an adult, because she is not ready to do so. He does not contribute to the mortgage payments on the house he owns with his ex-partner but he believes that she would definitely have kept up the payments despite her being on benefits and says he has not made payments because he is not allowed to be in touch with his ex-partner at the current time to arrange this.
7. There is an application with respect to the restraining order made by his former partner which will be heard by Birmingham Crown Court in October or November 2026 which the appellant hopes will mean that he can see his daughters face to face again and rebuild his former relationship with them. He had not made an application to set aside the restraining order despite knowing his ex-partner was in favour of normalising relations and his being able to see his daughters from the time of the First-tier Tribunal hearing in 2025 because he had no family lawyer and did not know he could do this.
8. The appellant currently has full-time employment again as a kitchen porter with the Bertrand’s Townhouse and earns £1200 take home pay a month. The appellant now lives with a cousin, but he is saving up so he can obtain accommodation of his own which will make a suitable place for his daughters to visit him. He is concerned that his mental health would suffer if he were to return to Grenada, and he has had suicidal thoughts due to the prospect of deportation. He does not know if he could get work in Grenada, as he has not researched this, and has not been there for twenty years, but he did previously work in the hospitality industry and internationally on cruise ships. He agreed that if he earned money in Grenada he could send some to his daughters but thought the exchange rate would not be good.
9. The evidence of the appellant’s ex-partner provided in a statement for the First-tier Tribunal in June 2025 and not updated since, is, in short summary, that the appellant was always a perfect gentleman bar the criminal behaviour that led to his conviction, and that her two daughters want the appellant back in their lives. He had previously supported them in every way possible: financially and psychologically and made them his priority. She feels that deportation is a punishment for her and her daughters, and questions whether she made a mistake in calling the police when he unexpectedly lashed out at her.
10. The evidence of the appellant’s older daughter, SMF, provided in a statement for the First-tier Tribunal in June 2025 and not updated since, is, in short summary, that her father is a good, caring and loving father who made one mistake. The appellant is a wonderful father and provided everything to herself and her younger sister and sending him to Grenada will hurt her and her sister. She feels responsible for calling the police during the altercation between her parents and points out that the appellant has taken responsibility for his offending and refused to defend himself in the criminal proceedings because he did not want her to have to give evidence. She and her sister very much look forward to being reunited with the appellant as a family.
11. Supporting evidence from GSF’s school and scout group confirms the appellant was, prior to his conviction, a supportive parent who took her to scouts and attended school events and parents’ evenings. A letter from the New Dawn Christ Church pastoral counsellor/ reverend states that the appellant is depressed and is suicidal at the thought of being separated from his children and deported to Grenada and expresses the opinion that it would be devastating for his children if this were to happen.
12. Ms Keerthy relied on her skeleton argument and oral submissions. In short summary she argues as follows. The evidence shows that there is a restraining order which prevents the appellant having communication with his ex-partner. In this context there is no evidence of the appellant having a relationship with his youngest daughter GSF going beyond messages for the past two years. Further these messages are sporadic, and we have no call log for phone calls. Given the way in which contact is taking place there would be no change in the contact if the appellant was deported, and the evidence indicates that GSF is thriving and doing well at school. As a result, it would not be unduly harsh for GSF if the appellant was deported, and even if the restraining order were lifted or varied to permit contact GSF is fully cared for by her mother who is able to claim benefits and/or work to support herself and her family, and these funds could be supplemented by the appellant sending money from work from Grenada. It is the appellant’s evidence that he believes that the mortgage is being paid and the family are not in arrears on the house so will not lose their home. There is no professional evidence from a psychologist, social worker, school or GP that the current level of contact is damaging to GSF, in fact the school report records that she has as in all subjects and a 95% attendance record. The probation evidence is not signed, but in any case, only says that the appellant’s ex-partner would like him to have contact with his daughters, but the appellant has taken no action to lift the restraining order to enable him to facilitate contact with GSF. The Upper Tribunal must determine the situation at the current date so even if it is likely that the restraining order may be lifted following the court hearing in October or November this does not mean face to face contact would resume as the appellant’s evidence is that his oldest daughter is not ready for this and we have no current evidence of the attitude of GSF, and thus there is no supportive evidence the appellant will imminently resume his previous role in GSF’s life. Given all these considerations the family life exception to deportation is not met as it would not be unduly harsh to the appellant’s daughter if he were deported and she remained in the UK.
13. With respect to very compelling circumstances over and above exceptions, this requires an even higher threshold than the already high one of undue harshness, which is simply not met on these facts. It is submitted that the length of the appellant’s residence, his relationships with his estranged partner and his daughters, one of whom he accepts is not ready to meet him face to face, his claimed rehabilitation and current work cannot outweigh the strong public interest in his deportation, which is particularly compelling as his criminal offending is an incidence of serious domestic violence which was aggravated by being done in the presence of his children and in the context of his having been drinking, and further the appellant only entered a guilty plea to the strangulation offence on the day of the trial. The appellant entered the UK at the age of 34 and so spent his childhood and formative years in Grenada, and so is familiar with his country of nationality, and also worked from there on cruise ships. There is no evidence he would not be able to re-establish himself in his country of nationality with support from family and friends.
14. Mr Trussler relied upon his skeleton argument and made oral submission. In short summary he submits as follows. It is argued that it is in the best interests of the appellant’s daughters that he be allowed to remain in the UK and that they have “suffered enough” and “look forward to rebuilding their relationships with their father”. It is argued that GSF is in her teenage years, which are vital ones in which she will develop into an adult, and that she needs her father’s support at this time particularly given their historic very close relationship for her whole life prior to his arrest in 2024. The probation service has confirmed that the appellant’s licence ended on 20th February 2026, and that he complied with it to a high level, and that there have been no further offences. Probation also confirm that the appellant’s ex-partner wishes there to be contact between the appellant and his daughters, and the evidence shows that this has been taking place through messaging and regular phone calls over the past two years. The restraining order, which appears in the bundle, shows that there is no restraining order with respect to the appellant’s daughters, as it applies only to his ex-partner, and so the contact with his daughters is lawful, and it may be assumed that the appellant’s ex-partner’s application to Birmingham Crown Court to lift the restraining order will be successful. It is argued that the statements from the appellant’s wife and his older daughter SMF, and the messaging between the appellant and his younger daughter GSF show that it would be unduly harsh for him to be deported to Grenada.
15. With respect to very compelling circumstances over and above the exceptions it is argued that it is relevant that there is a single instance of criminal offending in an otherwise unblemished character; that the victim of the criminal offending has supported the appeal, has applied to lift the restraining order and wants the appellant to rebuild his relationship with his daughters. The appellant has spent a long period of time in the UK, and the fact that GSF needs contact with her father during her teenage years are factors making the circumstances compelling.
16. At the end of the hearing, I reserved my decision.
Conclusions – Remaking
17. I first consider the appeal by reference to the second, family life exception to deportation, and thus by considering whether it would be unduly harsh to the appellant’s 13-year-old daughter, GSF, for him to be deported. As already stated, it is a preserved finding that it would be unduly harsh to expect GSF to accompany him to Grenada, so the remaining issue is whether it would be unduly harsh for her to remain in the UK whilst he is deported to Grenada.
18. As set out in the error of law decision of Judge Hoffman, in MK (Section 55: Tribunal Options: Sierra Leone) [2015] UKUT 223 (IAC), at [46], a presidential panel of the Upper Tribunal set out the following self-direction (subsequently endorsed by the Supreme Court in KO (Nigeria) v Secretary of State for the Home Department [2018] UKSC 53 and HA (Iraq) v Secretary of State for the Home Department [2022] UKSC 22): “…By way of self-direction, we are mindful 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…” This is the standard I must therefore apply when assessing whether the deportation of the appellant whilst GSF remains in the UK would be unduly harsh.
19. I find that the evidence before me shows that prior to his criminal offending the appellant has a good close parental relationship with GSF as a father who had always lived with his daughter, and who provided for her and the family financially and who also took a substantial role domestically as a father who supported her schooling, interests and development. However, after his offending I find that evidence shows that the only contact that has taken place, bar at two immigration hearings, has been via messaging and calls from a mobile phone. Whilst the only documentary evidence shows WhatsApp messages every few days from May 2026, I am prepared to accept that the appellant’s evidence that he messages every few days and also speaks to GSF on the telephone at weekends. In these messages GSF clearly expressed love and affection for the appellant and the hope that the appellant will stay in the UK. I find that it would be in her best interests for her to have both of her parents in the same country given the appellant’s history of having been an active and committed residential parent for the first ten years of her life; the support from GSF’s mother for an on-going relationship between her and the appellant; and GSF’s having a positive attitude to the appellant as evidenced by the messaging. I find that if he were able to stay in the UK it is likely that the restraining order on him having contact with his former partner would be lifted, and that in time face to face contact with GSF might resume. I am not able to be confident as to when this would be however as clearly face to face contact with the appellant’s older daughter, who is now an adult, has not resumed despite there being no legal bar on this happening and the positive statements she made about having a relationship with the appellant in her 2025 appeal statement, and in the context of there being no updating evidence from the appellant’s ex-partner with respect to contact for GSF or in the form of a letter from GSF herself.
20. On consideration of all of the evidence I do not find however that the appellant’s deportation to Grenada would be unduly harsh. GSF would be sad if this were to happen. It would be uncomfortable, undesirable and difficult for her to face the fact that this sanction had been applied to her father, the appellant, but I do not find that it would result in severe or bleak consequences for her. She could continue with her current contact with the appellant via messaging and telephone calls. She is clearly a successful school pupil despite the lack of her father’s face to face support, and the evidence of the appellant is that his ex-partner is caring for both of his children and paying the mortgage on their home, and he raises no concerns about that care or the stability of their financial or housing situation if he is deported. The appellant does not currently provide financially for his daughters in the UK, and provided no evidence that he would not be able to work in Grenada if he were deported there. He has historically worked in that country, and lived there until he was 32 years old, and so, on the evidence before me, I find that it is probable that he would obtain work in his home country and be able to send some financial assistance, even if it were only a small token amounts, to GSF, and her sister, in the UK. In time it might also be that GSF will be able to visit the appellant, perhaps with the financial assistance of the appellant’s brother and sister who appear to be successfully established in the USA.
21. I now turn to consider the appeal by reference to the very compelling circumstances test, which requires a very high threshold to be satisfied. As set out by Judge Hoffman in the error of law, the decision in Kapikanya v Secretary of State for the Home Department [2025] EWCA Civ 987, at [43], the Court of Appeal endorsed the observations of Underhill LJ in Yalcin v Secretary of State for the Home Department [2024] EWCA Civ 74 as to the proper approach to very compelling circumstances: “The judgment of Underhill LJ in Yalcin demonstrates that in order to satisfy s 117(C)(6) [sic] “something more” is required than under Exception 1 or Exception 2. Underhill LJ envisages two types of case. The first is where deportation would have what in a convenient shorthand phrase he describes as an “unduly unduly harsh effect” on a qualified child or partner. The second is where the appellant can point to the combination of an unduly harsh effect on a qualifying child or partner and some other factor amounting to very compelling circumstances. Underhill LJ emphasises that a serious offender will have to surmount a higher threshold than a medium offender.”
22. It is clear that the appellant cannot satisfy this test by showing an “unduly unduly harsh effect” on GSF as I have found he cannot reach the first stage of showing that his deportation whilst she remains in the UK with her mother would be unduly harsh for the reasons I give above. I therefore look to whether the combination of factors in this appeal could be said to amount to very compelling circumstances when balanced against the public interest in his deportation.
23. The public interest is not a fixity. I find that the public interest in the appellant’s deportation is reduced somewhat by the fact that the appellant does show some evidence of being rehabilitated and of there being a low risk of his reoffending: he complied well with his licence conditions according to probation and has sought counselling and support through his church and I accept his evidence that he deeply regrets what he did and has not drunk alcohol, a factor in his offending, since his offence. It is also relevant that the victim of his crime does not support the sanction of deportation being applied to the appellant and does not regard him as a threat either to her, hence her applying to lift the restraining order, or to their children. However, this does not mean that there is no public interest in the appellant’s deportation: it remains in the public interest to deter other foreign offenders by deporting those who commit crime, and particularly those who commit violent crime, and it remains in the public interest to maintain public support and confidence in the system of immigration control through the deportation of foreign criminals. Ultimately, I find therefore that there remains a significant public interest in the deportation of the appellant.
24. It is also relevant to the balancing exercise that were he deported the appellant would not have very significant obstacles to integration if he were returned to his country of nationality Grenada, as I have found he would be able to establish a private life there with friends and work; and for the reasons set out above the appellant cannot show that it would be unduly harsh to his qualifying child, GSF, for him to be deported.
25. The factors in the appellant’s favour when trying to establish very compelling circumstances are the fact that he has lived in the UK for nearly 21 years which is a long period of lawful residence; the fact that he is socially integrated in the UK with work, friends and some family including his two daughters and the cousin with whom he lives. It is a primary consideration that it would be in the best interests of GSF for the appellant to remain in the UK as there are prospects, if this were to happen, of his resuming face to face contact and providing her with greater psychological and financial support, as he did in the past, and I find that these prospects would be greater than if he were deported to Grenada where he is likely to earn less and given that it would be expensive and time consuming for her to visit him. I also weigh that the prospect of deportation is something that has caused the appellant to feel depressed and to have some suicidal thought, to the extent that he has undertaken some counselling via his church, although I have no medical evidence to support his having any diagnosed mental health condition or any support for this condition being made worse or not being provided with adequate treatment were he to be deported. I also note that the appellant confirms that his Christian faith is a protective factor against self-harm.
26. When the factors in favour of the appellant are considered, I conclude that it cannot be said that there are very compelling circumstances which mean that his deportation would be unduly harsh as weighed against the significant public interest in his deportation and in the context where neither of the exceptions to deportation, neither private nor family life, are met. It follows that the Article 8 ECHR appeal must be dismissed as the appellant can neither meet the statutory exceptions to deportation nor show very compelling circumstances over and above those exceptions.

Decision:
1. The making of the decision of the First-tier Tribunal involved the making of an error on a point of law.
2. The decision of the First-tier Tribunal allowing the appeal was set aside by Upper Tribunal Judge Hoffman.
3. I re-make the decision in the appeal by dismissing the human rights appeal.

Fiona Lindsley

Judge of the Upper Tribunal
Immigration and Asylum Chamber

25th August 2026

Annex A: Error of Law Decision

DECISION AND REASONS
1. The Secretary of State appeals with permission against the decision of the First-tier Tribunal Judge Bartlett (“the judge”) promulgated on 17 June 2025 allowing Mr Fraser’s appeal against a decision to deport him from the United Kingdom.
2. While it is the Secretary of State who is the appellant in this matter, for consistency, I will refer to the parties as they were before the First-tier Tribunal. Therefore, the Secretary of State will be referred to as the respondent and Mr Fraser as the appellant.
Background
3. The appellant is a national of Grenada, born in 1972. He arrived in the United Kingdom on 18 September 2006 with an EEA family permit as the husband of an EEA national exercising Treaty rights. On 27 April 2012, the appellant applied for a permanent residence card as a non-EEA national partner of an EEA citizen, which was refused on 22 May 2012. However, the appellant applied again, this time successfully, and he was granted a permanent residence card on 20 September 2012. On 5 April 2021, he successfully applied for indefinite leave to remain under the EU Settlement Scheme.
4. On 21 October 2024, the appellant was convicted at Birmingham Crown Court of intentional strangulation and assault occasioning actual bodily harm and, on 4 December 2024, he was sentenced to 15 months’ imprisonment. The offences were committed against his wife and the Court accordingly made a restraining order preventing the appellant from having any direct or indirect contact with her.
5. As a consequence of the appellant’s conviction, on 26 March 2025, the respondent signed a deportation order against him. The following day, she issued a reasons for deportation decision which attracted a right of appeal to the First-tier Tribunal.
The appeal to the First-tier Tribunal
6. The appellant’s appeal was heard on 16 June 2025. The judge heard oral evidence from the appellant. In addition, and despite the fact that the restraining order was still in force, the appellant’s wife also attended the hearing to give evidence in support of the appeal.
7. The judge considered that the appellant did not meet the private life exception to deportation under s.117C(4) of the Nationality, Immigration and Asylum Act 2002 (“the 2002 Act”) because there were no very significant obstacles to him re-establishing his private life there (the judge did not consider the other criteria, namely whether the appellant had been lawfully resident in the United Kingdom for most of his life and whether he was socially and culturally integrated).
8. However, the judge was satisfied that the family life exception under s.117C(5) had been met (“Exception 2”). In particular, she found that the appellant’s youngest daughter was a “qualifying child” for the purpose of Exception 2 and that it would be unduly harsh on her to either relocate to Grenada with the appellant or remain in the United Kingdom with her mother and sister without him. The judge then continued, in the alternative, to find that there were, in any event, very compelling circumstances to the appellant’s case that meant that his deportation would amount to a disproportionate interference with his right to a family life as protected by Article 8 of the European Convention on Human Rights (ECHR)
The appeal to the Upper Tribunal
9. The respondent was granted permission to appeal by Upper Tribunal Judge O’Callaghan on 4 February 2026, on the following grounds:
a. The judge failed to give any, or adequate, reasons for finding that the effect of the appellant’s deportation would be unduly harsh for his youngest child.
b. The judge failed to give any, or adequate, reasons for finding that there were very compelling circumstances to the appellant’s case that outweighed the strong public interest in his deportation.
The legal framework
10. The deportation of foreign national offenders is governed by the UK Borders Act 2007. Section 32 provides for the automatic deportation of foreign criminals sentenced to at least 12 months' imprisonment. Section 33 sets out the exceptions to automatic deportation. For the purposes of the present appeal, this includes where the person’s deportation would breach their rights under the European Convention on Human Rights (“ECHR”): see s.33(2)(a).
11. When considering Article 8 ECHR appeals raised by foreign criminals, s.117A of the 2002 Act requires judges to have regard to the contents of ss.117B and 117C. The latter provision applies specifically to cases involving the deportation of foreign criminals:
Section 117C Article 8: additional considerations in cases involving foreign criminals
(1) The deportation of foreign criminals is in the public interest.
(2) The more serious the offence committed by a foreign criminal, the greater is the public interest in deportation of the criminal.
(3) In the case of a foreign criminal (“C”) who has not been sentenced to a period of imprisonment of four years or more, the public interest requires C's deportation unless Exception 1 or Exception 2 applies.
(4) Exception 1 applies where—
(a) C has been lawfully resident in the United Kingdom for most of C's life,
(b) C is socially and culturally integrated in the United Kingdom, and
(c) there would be very significant obstacles to C's integration into the country to which C is proposed to be deported.
(5) Exception 2 applies where C has a genuine and subsisting relationship with a qualifying partner, or a genuine and subsisting parental relationship with a qualifying child, and the effect of C's deportation on the partner or child would be unduly harsh.
(6) In the case of a foreign criminal who has been sentenced to a period of imprisonment of at least four years, the public interest requires deportation unless there are very compelling circumstances, over and above those described in Exceptions 1 and 2.
(7) The considerations in subsections (1) to (6) are to be taken into account where a court or tribunal is considering a decision to deport a foreign criminal only to the extent that the reason for the decision was the offence or offences for which the criminal has been convicted.
12. The burden is on the appellant to prove the facts of their case applying the civil standard of balance of probabilities. The relevant date is the date of the First-tier Tribunal hearing.
The hearing
13. I heard submissions from both advocates, which are recorded in the record of proceedings, and at the conclusion of the hearing I reserved my decision.
14. In reaching my decision, I have had regard to the 232‑page consolidated bundle and the skeleton argument prepared by Ms Glass.
Discussion
15. I am mindful that this Tribunal should not interfere with the decision of the First-tier Tribunal merely because it might have reached a different conclusion on the facts. The role of this Tribunal is not to re-try the case but to determine whether the decision under challenge involved the making of a material error of law. As emphasised in Volpi v Volpi [2022] EWCA Civ 464 at [2] to [3], findings of fact are entitled to respect and should only be disturbed where they are vitiated by legal error, such as a failure to apply the correct test, a misdirection, or inadequate reasoning that prevents the losing party from understanding why they lost. It is against that standard that I have assessed the merits of the respondent’s appeal.
Ground 1: The family life exception
16. At the hearing, Ms Keerthy confirmed that the respondent did not seek to challenge the judge’s finding that it would be unduly harsh for the appellant’s youngest child to return to Grenada with him (“the Go scenario”). The respondent’s grounds were directed solely to the judge’s conclusion that it would be unduly harsh for the child to remain in the United Kingdom without her father (“the Stay scenario”).
17. Before concluding that the appellant’s youngest child would face unduly harsh consequences if she remained in the United Kingdom, the judge found at [29]–[30] that the appellant enjoyed a genuine and subsisting relationship with her. This was so notwithstanding the absence of direct contact, even by telephone, with communication instead being relayed through the appellant’s eldest daughter (who, by the date of the hearing, was an adult). The judge’s reasoning rested in part on the fact that, prior to his arrest, the appellant and his daughter had lived together as part of a close family unit. She acknowledged that the appellant’s ability to maintain a relationship with his children had subsequently been curtailed by his imprisonment and by the restraining order made by the Crown Court in favour of their mother. However, she noted that the appellant had written to his daughters and that both attended the hearing and provided witness statements in his support.
18. Having found at [31] that it would be unduly harsh for the youngest daughter to accompany the appellant to Grenada, the judge proceeded at [32] to consider the consequences of her remaining in the United Kingdom. She found that, given the family’s financial constraints, the appellant’s youngest daughter would be unable to visit him in Grenada for the foreseeable future, with the result that their relationship would be limited to telephone calls, letters, and video communication. The judge acknowledged that the OASys report assessed the appellant as presenting a medium risk to children, but concluded that, having had the benefit of evidence from the appellant and his family, she did not consider that there was a real risk of a recurrence of the offence that led to his imprisonment.
19. At [33], the judge listed the reasons why it would be unduly harsh for the appellant’s youngest daughter to remain in the United Kingdom without him:
“(a) I find that the appellant has a very close loving relationship with his youngest daughter. He has been selfless in his dedication to her;
(b) I accept the evidence before me from [the appellant’s partner] and the appellant’s oldest daughter that his youngest daughter has been “inconsolable”;
(c) I accept the evidence that she is preoccupied with the appellant the risk of about him being deported from the country [sic];
(d) I accept the evidence that she has not been herself since the appellant has been on remand and I consider that a lasting separation from the appellant would have unduly harsh consequences on her because of the closeness of their relationship and its importance to her;
(e) the child is still young being only 10 years of age. I find that she would be deeply affected by the appellant’s deportation as a result of the very high quality and good relationship that they had previously;
(f) there is little prospect of the appellant and his daughter meeting face-to-face for some years and a relationship continued only by electronic means is substantially degraded from the high quality relationship that they had before. I recognise that I have to bear in mind that their relationship has been disrupted but I consider that it does still continue and is felt strongly by both parties. I consider that there is time to repair the damage to that relationship but that the relationship would almost certainly end because of their lack of contact if the appellant were returned to Grenada.”
20. In MK (Section 55: Tribunal Options: Sierra Leone) [2015] UKUT 223 (IAC), at [46], a presidential panel of the Upper Tribunal set out the following self-direction (subsequently endorsed by the Supreme Court in KO (Nigeria) v Secretary of State for the Home Department [2018] UKSC 53 and HA (Iraq) v Secretary of State for the Home Department [2022] UKSC 22):
“…By way of self-direction, we are mindful 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…”
21. The judge did not refer to this self-direction in her decision. While that omission is not, in itself, determinative, she was nonetheless required to explain in adequate terms why the circumstances facing the appellant’s youngest daughter would cross this elevated threshold and amount to something beyond even “severe” or “bleak”. However, subparagraphs (a)–(e) of [33] are, in substance, variations on the same theme: that the appellant’s youngest child is closely attached to her father, and that their separation – and the prospect that it would continue were he to be deported – is, understandably, distressing for her.
22. The only additional factor identified is that set out in subparagraph (f), namely that the appellant’s youngest daughter would be unlikely to have any in-person contact with him for the foreseeable future, with their communication limited to electronic means. However, as the respondent submits, this must be viewed in context. By the date of the hearing, the appellant had already had no direct contact with his youngest daughter for some time, owing to his imprisonment and the existence of a restraining order.
23. It may readily be accepted that separation of this kind would be uncomfortable, inconvenient, undesirable, difficult, or even harsh for the appellant’s youngest daughter. However, it is not apparent from the judge’s reasoning why those consequences meet the very high threshold articulated in MK. The closest the judge comes to addressing this is in the final sentence of subparagraph (f), where she states that the relationship would “certainly end” if the appellant were removed. Even so, it is difficult to reconcile that conclusion with her earlier findings that the appellant and his daughter were part of a close and caring family, and to understand why she considered that the relationship would definitively come to an end.
24. I am therefore satisfied that Ground 1 is made out. However, this is not determinative of the respondent’s appeal. In order to succeed, she must also demonstrate that the judge made a material error of law when finding that there were very compelling circumstances to the appellant’s case.
Ground 2: Very compelling circumstances
25. Having found that the appellant met the requirements of Exception 2, the judge proceeded, in the alternative, to consider whether there were very compelling circumstances in the appellant’s case for the purposes of s.117C(6) of the 2002 Act.
26. The judge began by identifying, at [36], the factors weighing in favour of the appellant’s deportation, namely that he had been convicted of a serious offence; that, consequently, there was a strong public interest in his deportation; and that he would not be destitute on return to Grenada.
27. At [37], the judge went on to identify the factors weighing in the appellant’s favour:
“(a) the appellant has been settled lawfully in the United Kingdom since September 2006. This is a long period of time and the appellant would have been able to have applied for British citizenship. The period of time is relevant in part because of the time away from Granada [sic] it evidences but also because it evidences that for almost 19 years he has built a life and family for himself in the United Kingdom. He has fulfilled most people’s dreams of working solidly and continuously, getting married, buying a house and having children, supporting them and bringing them up in a loving family;
(b) the appellant’s deportation from the United Kingdom would have a serious negative effect on both his children. I recognise that his oldest child has just turned 18 and is therefore an adult and not qualifying child [sic]. I note the substantial evidence before me as to the strength of his relationship with his oldest child. I find that the appellant’s deportation would be seriously detrimental to her as was evidenced by her distress at hearing that the appellant might be deported;
(c) the appellant, [his wife] and his children all want the appellant to play a substantial role in his children’s lives. His relationship with his children would be very poor if he were deported to Grenada because he would not be able to visit them for the foreseeable future, he would not be able to financially support them and he would only be able to offer them limited emotional support because of the distance that would grow over such a long period of separation;
(d) the OASys report sets out that the appellant is a medium risk of serious harm to known persons and to children because of the risks of harm arising from domestic violence. I do not consider that this accurately sets out the risks. I accept the evidence before me that the appellant’s actions were out of character and that he has done nothing of this sort before or after. I accept his evidence that he undertook an anger management course and this helped him to adapt his behaviour. I consider that the appellant is at a low risk of harm for these reasons and I find that the appellant has carried out rehabilitation;
(e) I find that the appellant shows significant and genuine remorse for his actions;
(f) his offending was a one off action which did not involve premeditation, planning, a criminal lifestyle, a course of criminal conduct or anything other than a one off incident when he lost control.”
28. Contrary to the respondent’s submissions, there were aspects of the judge’s reasoning that she was entitled to take into account. These include the appellant’s lengthy period of lawful residence in the United Kingdom and his previous good character. I am also satisfied that the judge was entitled to take into account that the offence did not involve premeditation or planning, that the appellant had not previously engaged in criminal conduct, and that, on the evidence before her, it was a one-off incident in which he lost control. I would observe, however, that it is unclear what weight the judge attached to those matters. Given that individuals are not ordinarily expected to commit criminal offences, such factors are unlikely, in themselves, to carry significant weight.
29. The respondent further argues that the judge erred in accepting that the appellant had been rehabilitated on the basis of an anger management course undertaken in custody, which she describes as “mandated”. However, when asked to identify evidence supporting that assertion, Ms Keerthy was unable to do so. In those circumstances, I am satisfied that the judge did not err in attaching weight to that factor although, again, it is difficult to know what weight was attached.
30. Furthermore, while the respondent submits that the judge’s finding that the appellant posed a low risk of reoffending was unsupported by the evidence and inconsistent with the OASys assessment of medium risk, it cannot be said that the judge failed to give adequate reasons. Her assessment was based on oral evidence from the appellant and his witnesses, including his wife, that the offending was out of character and unlikely to be repeated. Taken together with the evidence of the anger management course, that was a conclusion reasonably open to her. Although OASys reports merit significant weight, a judge is not bound to accept them uncritically where other evidence is available, as here. The finding may not have been one that every judge would have made, but it was not irrational.
31. In relation to subparagraph (c), the respondent contends that the judge’s finding that the appellant would be unable to provide financial support to his family is inconsistent with her earlier finding that he could obtain work in Grenada. I do not accept that submission. The judge found at [36(c)] that the appellant could obtain “low-level” work, and it is not inconsistent to conclude that such employment would be insufficient to support a family in the United Kingdom. However, the judge did fail to consider what the practical consequences of that finding would be for the remaining family members in the United Kingdom, given that both the appellant’s wife and his adult daughter are capable of working.
32. Greater difficulty arises in relation to subparagraph (b). While the judge was entitled to take into account the impact of deportation on the appellant’s eldest daughter, whose circumstances fell outside Exception 2, the reference to a “serious negative effect on both children” plainly also relies on the earlier findings made in respect of the younger child under Exception 2. This is apparent from the fact that no separate or additional reasoning is provided in relation to her.
33. In Kapikanya v Secretary of State for the Home Department [2025] EWCA Civ 987, at [43], the Court of Appeal endorsed the observations of Underhill LJ in Yalcin v Secretary of State for the Home Department [2024] EWCA Civ 74 as to the proper approach to very compelling circumstances:
“The judgment of Underhill LJ in Yalcin demonstrates that in order to satisfy s 117(C)(6) [sic] “something more” is required than under Exception 1 or Exception 2. Underhill LJ envisages two types of case. The first is where deportation would have what in a convenient shorthand phrase he describes as an “unduly unduly harsh effect” on a qualified child or partner. The second is where the appellant can point to the combination of an unduly harsh effect on a qualifying child or partner and some other factor amounting to very compelling circumstances. Underhill LJ emphasises that a serious offender will have to surmount a higher threshold than a medium offender.”
34. Accordingly, the threshold for establishing very compelling circumstances is a high one. While many of the judge’s findings in relation to that test were adequately reasoned and reasonably open to her, it is nevertheless difficult to know how much weight she attached to them. Moreover, I am satisfied that the errors identified in her assessment of Exception 2 infected the subsequent analysis under s.117C(6).
Conclusion
35. For the reasons given above, I am satisfied that the judge’s findings in respect of the Stay scenario under Exception 2 and very compelling circumstances are tainted by material errors of law.
Disposal
36. Ms Keerthy submitted that the findings in relation to Exception 1 and the Go scenario could be preserved and that the appeal should be retained for rehearing in the Upper Tribunal. Ms Glass, by contrast, argued that the appeal should be remitted to the First-tier Tribunal for rehearing, without giving reasons.
37. I remind myself that there is a presumption that an appeal should be retained by the Upper Tribunal unless the proceedings before the First-tier Tribunal were tainted by procedural unfairness, or the nature or extent of the fact-finding required in order to remake the decision would be extensive. In the present case, I accept Ms Keerthy’s submission that the findings in relation to Exception 1 and the Go scenario can properly be preserved. It follows that the issues remaining to be determined are confined to the Stay scenario under Exception 2 and the question of very compelling circumstances. In those circumstances, I am satisfied that the nature and extent of the fact-finding required are not such as to necessitate remittal. Applying paragraph 7.2 of the Practice Statements of the Immigration and Asylum Chambers of the First-tier Tribunal and the Upper Tribunal, I therefore conclude that the appeal should be retained by the Upper Tribunal for rehearing.

Notice of Decision
The decision of the First-tier Tribunal involved the making of an error of law and is set aside with the findings made at [24]-[26] and [31] preserved.
The decision will be remade at a resumed hearing in the Upper Tribunal.
Directions:
(1) The remaking of this appeal is to be listed for the first available date with a time estimate of 4 hours.
(2) Any updating evidence either party wishes to rely upon must be electronically filed with the Upper Tribunal and served on the other party 21-days prior to the remaking hearing.
(3) Mr Fraser is to file and serve a skeleton argument no later than 14 days before the resumed hearing.
(4) The Secretary of State is to file and serve a skeleton argument no later than 7 days before the resumed hearing.

M R Hoffman

Judge of the Upper Tribunal
Immigration and Asylum Chamber

19th May 2026