Tribunal decisions

The decision

IN THE UPPER TRIBUNAL
IMMIGRATION AND ASYLUM CHAMBER Case No: UI-2026-000654
First-tier Tribunal No: HU/55792/2024
LH/01071/2025

THE IMMIGRATION ACTS

Decision & Reasons Issued:

23rd June 2023

Before

DEPUTY UPPER TRIBUNAL JUDGE COTTON

Between

TP
(ANONYMITY ORDER MADE)
Respondent
and

SECRETARY OF STATE
FOR THE HOME DEPARTMENT
Appellant

Representation:
For the Respondent: Ms N Bustani, counsel instructed by Morgan Pearse Solicitors
For the Appellant: Ms J Isherwood, Senior Home Office Presenting officer.

Heard at Field House on 15 June 2026

Order Regarding Anonymity

Pursuant to rule 14 of the Tribunal Procedure (Upper Tribunal) Rules 2008, the appellant’s former partner and their daughter are granted anonymity.

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

DECISION AND REASONS

1. This is an appeal by the Secretary of State for the Home Department against the findings of the First-tier Tribunal (FtT) dated 24 September 2025. It is easiest to refer to the parties as they were in the FtT and so I will refer to the Secretary of State for the Home Department as the respondent and TP as the appellant.

2. The appellant is an Albanian national born in 1984. He initially entered the UK without leave in May 2007. He was prosecuted for the use of a false instrument used to enter the UK, convicted, and sentenced to a 12 months custodial sentence. He voluntarily departed the UK on 6 September 2007, having served part of that sentence. The respondent issued an exclusion decision against him day-to-day October 2007, although the respondent says that he did not receive this as it was sent to the wrong address.

3. In 2015, the apparent married LUP in Albania. The appellant entered the UK, again without leave, in 2017 and LUP had also come to the UK separately in 2017. In the UK, the respondent and LUP met and in due course had a daughter, LP, born in 2020. Both LUP has refugee status.

4. I take as a starting point of that justice must be done openly. Against that I balanced the risk associated with identifying LUP. I came to the conclusion that the interests of justice require me to anonymise both them and the appellant in this case in order most effectively to be able to discharge the United Kingdom’s duties under the refugee convention.

5. The appellant and LUP are not reconciled but it is his case that he takes an active part in raising LP and also assists LUP with her two other children from a separate relationship.

6. October 2022 the appellant sought leave to remain in the UK on the basis of his relationship with LP. That application was refused by a decision dated 17 May 2024, and led to the FtT determination under appeal to me.

7. Amongst other findings, the FtT found that the appellant’s removal would be against the best interests of LP and therefore would amount to unjustifiably harsh consequences.

8. The respondent sought, and was granted, permission to appeal. The permission to appeal identified arguable errors in the FTT determination as follows:

a. The FtT erred in its consideration of the weight to be attached to the public interest in the appellant’s removal, given his criminal history:

b. The FtT’s consideration of the effect of separation on TP was insufficiently focused on the individual child and instead referred to generalisations.

9. I heard arguments from both parties.

10. The respondent opened submissions by confirming there was no suggestions that either the child or the mother could relocate. Beyond that, the respondent pointed to [3] of the determination of the FtT, where the FtT noted that the parties agreed the core facts were not in dispute and that they were set out as a paragraph 52 of the reasons for refusal letter which, in effect, accepted that the appellant had a parental relationship with LP. The respondent submitted that this was an error as paragraph 52 of the reasons for refusal letter makes no such concession.

11. In my judgement, reference to paragraph 52 of the reasons for refusal letter are a typo and the FtT clearly had in mind paragraph 62 of the reasons for refusal letter. There, the respondent outlines what factors the respondent considered in the best interests of LP. The FtT’s characterisation of this as an acceptance that the appellant “had a parental relationship with LP” is, in my judgement a fair summary of the fuller assessment of this question at paragraph 62 of the reasons for refusal letter.

12. The respondent submits that the FtT’s reasons for finding that the appellant’s removal would result in unjustifiably harsh consequences for TP fail to rely on any authority or to substantiate this finding. Further, there is an absence of any objective evidence, for example from an independent social worker or expert who specialises in children’s psychology to lend support to any claims that the attendance physical absence from his daughter’s day-to-day life would result in any harm that could be categorised as unjustifiably harsh.

13. In oral submissions, the respondent submitted that just because a relationship is established, that does not mean that it would be unjustifiably harsh for the appellant to be removed. There is, says the respondent, a lack of balance and a disregarding of the public interest in removing the appellant. The appellant has shown a propensity to commit crime and, says the respondent, this goes beyond the offences that he admits to committing on entering the UK.

14. In relation to the evidence of the relationship between LP and the appellant, the respondent points to the use of the phrase “genuine parental relationship” in letters from childcare providers. In fact, I find, the phrase used is “parental responsibilities”. I agree that a finder of fact might wish to consider whether the use of identical phrases across letters from different organisations is indicative of them having been asked to answer a specific question. In my judgement, this point by the respondent (with the underlying suggestion that the evidence was worthy of less weight because a phrase was fed to the relevant person) was an example of the respondent seeking to relitigate a matter from the FtT.

15. In submissions for the appellant, I was taken to the evidence which the appellant states entitled the FtT to come to the conclusion that the appellant had never received the exclusion order. Having considered this and the way that the FtT treats at this point, I find that there is no error in respect to the FtT’s findings about the exclusion order. If I am wrong on this, I find it makes no difference, as the appellant admits entering the UK unlawfully on two occasions and the exclusion order adds nothing to the weight to give to this.

16. The appellant submitted that this case can be distinguished from Kaur (children's best interests / public interest interface) [2017] UKUT 14 (IAC) and MK (best interests of child) India [2011] UKUT 475 (IAC) in that the current case is one where the respondent accepts the removal would result in the breakup of a family and the mother and child cannot follow the appellant where he removed.

17. The appellant submitted that witness evidence in the FtT hearing was uncontested and the FtT is not required to reproduce every word of the evidence received in the determination. It is, however, clear that the FtT has taken into consideration all of the evidence of the witnesses. This includes the appellant’s evidence that if he were removed, he would lose direct contact with LP. It also included a letter in the documentary evidence that concluded that LUP has a history of anxiety, depression, and PTSD. The FtT took into account the impact that the appellant’s removal would have on LUP, says the appellant.

18. In response, the respondent submitted that evidence was not uncontested and that the appellant and LUP cross-examined. It is not enough, says the respondent, for a factor to be at the back of the FtT’s mind, it needs to be clearly set out in the determination along with what weight is given to it. In relation to submissions Kaur and MK, which were in response to submissions made in the grounds of appeal, the respondent now stated that the challenge lies within the lack of reasoning and consideration of the material facts.

19. I remind myself of the need to respect the findings of the FtT where the case was heard by a judge with extensive skills and experience in that specialist jurisdiction. My function is to consider any errors of law and not preference of style or approach.

20. I agree with the submission that there is an absence of objective evidence on the child’s best interest. That is, in this tribunal’s experience, the frustrating reality of many cases in the FtT. It does not mean that the burden or standard of proof shifts. It is still for the appellant to prove their case. Equally, a lack of expert evidence does not remove the FtT’s duty to consider the best interest of the child.

21. On consideration of the FtT determination, I find myself not in agreement with the respondent’s submission that the FtT takes a solely general position.

22. The FtT accepts that the appellant and LP have a very close relationship. The FtT does not outline all of the evidence that it has taken into consideration in reaching this conclusion. However, I am satisfied that the FtT has taken all of the material into consideration and I remind myself not to assume to readily that the tribunal misdirected itself just because not every step in its reasoning is fully set out. I find that the FtT’s reasons for coming to this conclusion are sufficiently clear and grounded in the evidence.

23. The FtT also considers the evidence of the relationship between the appellant and LP earlier in the determination at [6]. The FtT goes on, also in [8], to identified that no social work report is available. The FtT was of the opinion that no such report was necessary.

24. The FtT then goes onto consider the specific immigration position of LP, LUP and the appellant before coming to the conclusion that the appellant’s removal would be substantially and overwhelmingly against LP’s best interest. In my judgement, it is clear that the FtT has considered the child’s best interest in isolation, as the respondent states the FtT must, with regards to the consequences on the specific child to the extent that the FtT was able to do on the evidence available.

25. With regard to the respondent’s assertion that the FtT gave insufficient weight to the appellant’s inability to meet the requirements of the Immigration Rules, I note that the FtT does take this as part of their starting point at [7] “My starting point as the strong public interest in removing those who enter the UK unlawfully and who cannot comply with the main body of the rules”. The FtT goes on to describe the appellant’s entry into the UK twice without leave as “entirely disreputable”.

26. The FtT has identified the strong public interest. The only factor that I can identify on the terms of the FtT’s decision that can be said to point to the FtTgiving insufficient weight to this, is the fact that the FtT found that the public interest was outweighed by the harsh consequences on LP. This leads me to conclude that the respondent’s submissions to the effect that the FtT gave insufficient weight to the public interest are an attempt to relitigate the balancing exercise rather than the identification of an error of law.

27. The respondent also argues that the FtT failed to show what weight is given to each factor in the balancing exercise that is carried out between the public interest and the impact on LP.

28. As already stated, the FtT does explicitly detail that there is “strong public interest” in removing those who enter the UK unlawfully and who cannot comply with the main body of the rules. The FtT might alternatively have said that this carries significant weight, but that is a stylistic matter in my judgement and not a substantive one.

29. In respect of the weight attributed to the impact on LP, that is expressed by the FtT as “his removal to Albania would be substantially and overwhelmingly against LP’s best interest”.

30. The apparent appeared to seek to argue in oral submissions that there was a difference between “unjustifiably harsh consequences” and a proportionality assessment under article 8. I remind myself of R (Agyarko) v Secretary of State for the Home Department [2017] UKSC 11 and consider that [48] of that Judgment makes clear that proportionality and “unjustifiably harsh consequences” are, at least for the purposes of the instant case, synonymous.

31. I find at the FtT could have given a fuller description of the balancing exercise carried out, but ultimately the balancing exercise is a matter of putting factors into the scales and finding the outcome. The FtT does this by placing [7] in one side of the scales and [8] in the other side of the scales. At [9] the FtT reads the results from the scales and finds against the respondent. I am satisfied that the FtT has taken into account the appropriate factors in the exercise, has given appropriate weight, has explained sufficiently their reasons, and has not erred in law. I do not allow the appeal.

Notice of Decision

The First-tier Tribunal has not erred in law.

The decision of the First-tier Tribunal stands.

D Cotton

Deputy Judge of the Upper Tribunal
Immigration and Asylum Chamber

15 June 2026