Tribunal decisions

The decision

IN THE UPPER TRIBUNAL
IMMIGRATION AND ASYLUM CHAMBER Case No: UI-2026-000171
First-tier Tribunal No: HU/01045/2025

THE IMMIGRATION ACTS

Decision & Reasons Issued:
On 30th March 2026

Before

DEPUTY UPPER TRIBUNAL JUDGE HANBURY

Between

PONIPATE SAVUNACAGI
(NO ANONYMITY ORDER MADE)
Appellant
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: Mr H Kannangara of Counsel instructed by David Benson Solicitors
For the Respondent: Mr E Terrell, a Senior Home Office Presenting Officer

Heard at Field House on 20 March 2026

DECISION AND REASONS
1. The appellant first came to the UK in May 2012 on a visit visa and subsequently joined the army. He was given leave to remain on that basis. However, he went back to Fiji and subsequently met his partner who became his wife, I am told, in 2019. That lady is called Salesia Mataitoga. Unfortunately, they seem to have had something of a tempestuous relationship and following their arrival back into the UK, I understand in 2024, an incident of domestic violence occurred and the appellant was convicted subsequently of an offence of strangulation as well as an assault occasioning actual bodily harm. The appellant was sentenced by the judge to eighteen months’ imprisonment.
2. The respondent decided to deport the appellant for those offences, finding no compelling or compassionate circumstances justifying his resisting deportation. The respondent considered that the appellant did not fall within the exception in Section 117C (5) of the Nationality, Immigration and Asylum Act 2002 (2002 Act) in that he was not in a genuine and subsisting relationship with a qualifying partner and therefore his deportation was justified. However, the appellant appealed the FTT’s decision on 23 December 2025 arguing that the judge had erred in his conclusion that there was no genuine and subsisting relationship between the appellant’s partner, subsequently his wife, and himself. On 11 December 2025 First-tier Tribunal Mill (the judge) found that the relationship had come to an end in October 2024 upon the appellant’s arrest for those offences. He was released on licence on 13 October 2025 but, I have been informed by the respondent, he subsequently went into immigration detention. He appealed a decision by a notice of appeal on 23 December 2025.
3. It was argued in the grounds that the judge had failed to adopt a holistic assessment and had applied too much weight to the appellant’s offending. He was not entitled to conclude in the circumstances that the relationship was in fact not a genuine and subsisting one. Furthermore, there would be no unduly harsh consequences on the appellant’s wife’s mental health if the appellant were to be deported from the UK. The appellant relied on a report by a Dr Abbas in support.
4. First-tier Tribunal Judge Lawrence granted permission to appeal on 7 January 2026. Judge Lawrence pointed out that in his view that it was arguable there was a flawed consideration of the psychiatric or psychological evidence. Furthermore, the extent of family life was said not to have been fully assessed. In terms of the public interest assessment, which was essentially ground 2 of the grounds, the appellant was not given permission to appeal that ground. Quite properly, Mr Kannangara has not argued to the contrary. I noted when I considered the papers that the appellant’s licence from his term of imprisonment expires in December 2026 so he is still subject to licence and subject to immigration detention. I understand that he does not have anywhere to live at the present time.
5. Both sides made helpful submissions to the Tribunal. The essential argument that Mr Kannangara ran was that if one refers to paragraph 31 of the decision it was poorly rationalised. The judge was criticised in a number of respects. In relation to paragraph 31 the judge said:
“I (have) to determine whether the appellant has a genuine and subsisting relationship with his wife. Based on my earlier fact-finding I find that the appellant and his wife may currently have an intention of reforming their broken relationship and marriage caused by the appellant’s serious domestic violence offending but as at today’s date they are separated. They are not in a genuine relationship. The appellant’s wife has recently been granted leave to remain on the basis that the marriage has ended”.
6. That conclusion was criticised by Mr Kannangara. He said that the judge had not given proper weight to evidence, particularly recent evidence, that the parties were in regular communication with one another even during the period of the appellant’s incarceration. He said that the family life which had been paused by the term of imprisonment had clearly resumed and on balance of probabilities the proper conclusion for the Tribunal to come to was that the “genuine and subsisting relationship” test was satisfied.
7. I should say at this point that Section 117C(5) provides an exception to the strong public interest in favour of deportation. The relationship between the obligation on the one hand to respect the public interest in deportation and the protected human rights of the person under threat of deportation was explained by the Supreme Court in Hesham Ali v Secretary of State [2016] UKSC 60. It would only be in an exceptional case that a foreign criminal’s protected human rights under Article 8 of the European Convention on Human Rights would takes precedence over the public interest in deportation. This would only be in a case where it is established that there is a genuine and subsisting relationship with a qualifying partner and the effect of C’s deportation on the partner would be unduly harsh. Mr Kannangara went on to point out that it would indeed be unduly harsh in this case. The judge had not properly considered the expert evidence of Dr Abbas, which was the only expert evidence in the case. The appellant’s absence from his wife’s life during his period of incarceration had been a major trigger to her mental ill health. The judge had not attached proper weight to this and arguably reached erroneous conclusions, particularly by reference to paragraphs 6 and 7 in the report, which were quoted to me (at page 214 in the PDF bundle). Dr Abbas states that the “stressors” associated with the appellant’s husband’s legal situation were taken into account but her relationship with him provided “emotional support , stability and re-assurance” to her. The support the appellant provides to his wife was the primary and seemingly only protective factor. She explicitly states that his support is what is stopping her from ending her life. These are serious matters because he went on to say that the appellant’s permanent deportation would significantly destabilise her mental state and lead to a high probability of suicidal intent.
8. Mr Terrell, on the other hand, argued that paragraph 31 had been taken out of its correct context which was that of a detailed set of findings. The submissions made on behalf of the appellant amounted to a disagreement with the outcome of the appeal and not a genuine error of law such as to require the Tribunal to interfere with it. If the submission in relation to the “genuine and subsisting relationship with a qualifying partner” failed the case fell away as the primacy of the respondent’s interest in applying the public interest in removing foreign criminals would take effect . Therefore, it was only if the appellant succeeded on that ground of appeal that it was necessary to consider the second ground.
9. Mr Terrell took me through a number of passages in the decision which clearly indicated, in his submission, that the judge did have in mind the complex nature of this particular relationship. In particular, the fact that the relationship had not been a long lasting one but had been re-established within a few weeks after the appellant’s release from custody, which was highly material. The parties had only been cohabiting for three weeks when the assaults giving rise to the appellant’s arrest and detention occurred in early October 2024. In paragraph 27 of the decision the judge considered the appellant’s behaviour to have been controlling and coercive, which was supported by the OASys Report. The appellant’s attitude to women, particularly towards his wife, was “ingrained” and there was no material evidence of rehabilitation, in the judge’s view. The relationship appeared to the judge to have broken down irretrievably and it was perhaps more out of loyalty and fear than that his wife wished to re-establish the relationship. This was a conclusion that the judge was entitled to come to. Mr Terrell submitted, by reference to BN (Albania) UKUT 279, that the feigning, whether deliberately or not, of more complex psychological reasons or the feigning of loyalty to a particular person, was something properly taken into account by the FTT. Just because the appellant’s wife claimed to be loyal to her husband did not necessarily mean that that loyalty was genuine, still less that they were in a genuine and subsisting relationship. He said that Dr Abbas’ report, therefore, did not become relevant because the judge had been entitled to attach less weight to it and come to conclusions he came to in relation to the genuine and subsisting nature of the relationship. Insofar as it was necessary to consider Dr Abbas’ report, the criticisms the judge made of Dr Abbas’ consideration of the evidence before him were justified. It was clear that the report was largely based on what the wife, the appellant’s victim, had told him. Dr Abbas should have looked more critically at the wider factors in the case including the history of domestic abuse.
10. Mr Kannangara briefly replied, saying that the findings were based on historic fact rather than the actual contemporary evidence before him. It was clear that there was a pattern of re-established contact between the parties, the appellant and his wife, and the conclusions were criticised for reasons that largely echoed those he made earlier in his submissions.
11. I have considered carefully the grounds of appeal and the submissions made by Mr Kannangara. It is only if the decision of the First-tier Tribunal contained a material error of law such as to justify the Upper Tribunal to interfere with that decision that this tribunal would interfere with it. The decision of the FTT appears thorough and well-reasoned. Individual paragraphs may be criticised, for example paragraph 31. However, when read in its context it makes sense. The appellant pleaded guilty to offences including a serious of assault on his wife following a relatively short period of cohabitation. That cohabitation had not re-commenced, the judge found. This was a conclusion the judge was entitled to come to. I agree with Mr Kannangara that the case was a difficult one but, in such cases, the Upper Tribunal would be reluctant to interfere in the absence of any indication that the judge failed to take account of a material piece of evidence, for example. Here the judge took account of the history of domestic violence, the alleged reconciliation, the limited forms of contact that had taken place following the alleged reconciliation but placed importance on the fact that there was genuine fear on the part of the appellant’s wife. In that context the judge was entitled to be critical of the psychiatric evidence of Dr Abbas. This had not been made explicit by her, as is often the case where coercive behaviour is found.
12. In the circumstances I agree with Mr Terrell that the psychiatric evidence has limited relevance as the case does not fall within the exception found in section 117C (5) of the 2002 Act. In any event, paragraphs 6.7 and 8 of Dr Abbas’s report cannot be read in isolation. When the whole report is considered, as the judge said, it seems to have been largely based on what Dr Abbas was told by the appellant’s wife.
13. Therefore, the decision of the First-tier Tribunal was one that the judge was entitled to come to on the evidence and the appeal to the Upper Tribunal is dismissed.

Deputy Judge of the Upper Tribunal
Immigration and Asylum Chamber

26 March 2026