Tribunal decisions

The decision

IN THE UPPER TRIBUNAL
IMMIGRATION AND ASYLUM CHAMBER Case No: UI-2026-001058
First-tier Tribunal No: HU/50519/2025
LH/01721/2025

THE IMMIGRATION ACTS

Decision & Reasons Issued:

On 12th of May 2026

Before

UPPER TRIBUNAL JUDGE LINDSLEY

Between

SECRETARY OF STATE FOR THE HOME DEPARTMENT
Appellant
and

DARDAN HOXHAJ
(ANONYMITY ORDER not MADE)
Respondent

Representation:
For the Appellant: Mr E Terrell, Senior Home Office Presenting Officer
For the Respondent: Mr S Karim, of Counsel, instructed by Simman Solicitors

Heard at Field House on 5 May 2026

DECISION AND REASONS
Introduction
1. The claimant is a citizen of Albania born on 22nd April 1995. He came to the UK illegally in 2017 and was convicted of four offences of conspiring to supply controlled drugs and being in possession of a false identity document. He was given a 3 year sentence of imprisonment and was subject to automatic deportation. He was deported to Albania on 4th September 2018 but returned to the UK on 14th October 2018. On 18th August 2021 he applied for leave to remain under the EUSS as the dependent spouse of an EEA national. On 21st February 2023 he submitted a human rights application which was refused with a right of appeal. The claimant’s appeal against the decision of the 7th January 2025 refusing the human rights application and maintaining the deportation order was allowed by a First-tier Tribunal Judge in a decision promulgated on 20th December 2025.
2. Permission to appeal was granted to the Secretary of State by a Judge of the First-tier Tribunal on 6th March 2026 on the basis that it was arguable that the First-tier judge had erred in law when applying the family life exception to deportation and conflating the go and stay scenarios and in failing to apply the correct test as to unduly harsh. It was also found to be arguable that the findings with respect to the claimant was socially and culturally integrated were not lawfully made.
3. The matter now comes before me to determine whether the First-tier Tribunal had erred in law, and if so whether any such error was material and whether the decision of the First-tier Tribunal should be set aside.
Submissions – Error of Law
4. In the grounds of appeal and in oral submissions from Mr Terrell, it is argued for the Secretary of State, in short summary, that the First-tier Tribunal erred in law as follows.
5. Firstly, it is argued, that the First-tier Tribunal erred by failing to apply the correct standard of harshness when assessing whether deportation would be unduly harsh when considering the family life exception to deportation. Mr Terrell reminded the Upper Tribunal that the question is whether there were matters which went beyond the severe and bleak, and whether the First-tier Tribunal sets out sufficient reasons to show that this test was truly applied rather than was simply set out correctly in the decision.
6. In the grounds it is said that the First-tier Tribunal Judge also conflated the go and stay scenarios, but Mr Terrell did not pursue this submission. He argued that in essence the first ground was a reasons challenge, and argued that there were insufficient reasons given firstly in relation to the go scenario with respect to the partner to show harshness let alone indue harshness, as all that is said is that she would have very considerable difficulty reintegrating due to being a previously trafficked woman and no reasons are given why she would not have been able to surmount those difficulties. With respect to the stay scenario it is argued that no consideration is given to the submission of the Secretary of State that social services could assist the claimant’s partner, and that this could mitigate any harshness. It is also argued in the grounds that emotional dependency does not amount to undue harshness and that the finding that the claimant’s presence was fundamental to his partner’s survival was not supported by evidence in the grounds although Mr Terrell did not add anything to this written submission.
7. Secondly, it is argued, that the country guidance in AM & BM (Trafficked women) Albania CG [2010] UKUT was wrongly applied to the claimant’s partner who is a British citizen, and this case provided insufficient evidence to support the contention of harshness on return for the partner as set out above.
8. In the Rule 24 and in submissions from Mr Karim it is argued for the claimant as follows. It is argued that the grounds are just a disagreement with the decision of the First-tier Tribunal Judge, and that the Upper Tribunal is reminded of the decision in Volpi v Volpi [2022] EWCA Civ 464 and that an appeal court should not interfere with findings of fact unless they are so plainly wrong that no reasonable judge could have reached them. It is argued that the First-tier Tribunal followed the correct steps, weighed the evidence and attached weight to the public interest and seriousness of the criminality. It is pointed out that the grant of permission refers to conclusions on social and cultural integration which are not a material part of decision as the private life exception is not found to be met by the First-tier Tribunal Judge.
9. With respect to the first ground it is argued for the claimant that the Secretary of State accepts that the First-tier Tribunal directed itself to the correct principles, and further that it cannot be said that there is not a thorough consideration of the evidence at paragraphs 67 to 81 of the decision, nor that proper findings were not reached on the claimant’s partner’s medical issues, trafficking and the fact that she has been a victim of sexual abuse. It is argued there is no conflation of the go and stay scenarios. The go scenario is dealt with at paragraphs 67-69 of the decision, whereas the stay scenario is dealt with from paragraph 70 onwards. At paragraph 79 to 80 there is consideration of factors relating to the child.
10. It is argued with respect to the go scenario that there is more than sufficient evidence referred to in the decision to sufficiently reason that the test of unduly harsh with respect to the claimant’s partner was met. Mr Karim reminded the Upper Tribunal that the question was whether the reasoning was adequate and there was no substantial doubt as to the reasons for this finding. He argued that there was no such doubt. The reasons identified as relevant to the finding in the decision include the partner’s history of being trafficked and sexually abused in Albania, her complex PTSD, anxiety and depression, the country of origin evidence with respect to very considerable difficulties for trafficked women reintegrating due to the strict honour code in Albania; and the fact that at the date of hearing she was a woman with not only a small child but who was over 8 months pregnant with a second baby. It is clear that the claimant’s partner’s history and situation meant that deportation would be unduly harsh in comparison to a paradigm partner, particularly as when the situation of her child was examined by the First-tier Tribunal it was found that he had special health needs, and, although this does not feature in the decision, there was also evidence before the First-tier Tribunal that the help he receives in the UK would not be available in Albania.
11. With respect to the stay scenario there was no evidence of alternative care being available to the partner and child identified by the Secretary of State before the First-tier Tribunal. The assertion that social services would assist the claimant’s partner was contrary to the evidence from Paris Blake, a specialist perinatal social worker, in a report dated August 2025 (at page 209 of the claimant’s bundle) which states the claimant “plays a critical and irreplaceable role in maintaining the emotional and physical stability of the household”. It is not arguable therefore that on the evidence before the First-tier Tribunal that this was a matter that needed to be resolved, or that if it had been addressed the evidence could have led to a finding which would have assisted the Secretary of State or led to a different conclusion with respect to the stay scenario.
12. With respect to the seriousness of the offending and public interest, it is clear that the First-tier Tribunal acknowledged the claimant was convicted of a serious crime, and is clear that the public interest in preventing crime and disorder was born in mind.
13. With respect to the second ground (labelled the third ground) it is argued that AM & BM (Trafficked women) Albania CG is appropriately employed by the First-tier Tribunal as reliable country of origin evidence which shows that the psychological damage inflicted on a victim of trafficking can lead to considerable difficulties reintegrating in Albanian society in the context of a strict honour code, and thus that it would be unduly harsh for the claimant’s wife (an accepted victim of trafficking with other vulnerabilities) to have to return to Albania. There is no finding that she would be re-trafficked or any issue of application of the country guidance beyond the issues relevant to the appeal.
Conclusions – Error of Law
14. It is clear from s.117C(3) of the 2002 Act that the public interest requires the deportation of a foreign criminal unless Exception 1 or Exception 2 applies. A lawful finding that an exception is met with respect to a foreign criminal with a sentence of less than four years means that there is no public interest requiring deportation. This claimant had been sentenced to three years imprisonment and so if he is lawfully found to have met an exception his deportation is not required in the public interest. Where an exception is met there is therefore no further balancing exercise required. Nevertheless, this First-tier Tribunal did give explicitly give due weight to the Secretary of State’s duty to protect the public against crime and disorder and to the gravity of the claimant’s offence, as set out at paragraphs 45 to 48 of the decision.
15. Mr Karim correctly notes that the claimant was found not to have met the requirements of first/ private life exception to deportation at paragraph 62 of the decision so the finding that he was socially and culturally integrated in the UK, whether correct or not, was not material to the outcome of the appeal which turned on his ability to meet the requirements of the second/ family life exception to deportation.
16. As argued by Mr Karim and conceded by Mr Terrell the First-tier Tribunal unarguably deals with the go and stay scenarios separately and there is no error in this respect. It was also accepted by Mr Terrell that on the face of the decision the correct test for unduly harsh is set out: at paragraph 36 of the decision the First-tier Tribunal directs itself as to the test in HA (Iraq), with harsh correctly defined as “something severe, or bleak” and unduly raising “an already elevated standard still higher”. The correct test of “unduly harsh” is also cited throughout the findings section on exception 2/ the family life exception at paragraphs 67 to 81 of the decision.
17. Mr Terrell’s principal contention was that an appropriately high-level test for “unduly harsh” had however not actually been applied as the reasons given were not commensurate with such a standard of harshness, particularly with respect to the go scenario. I find that this is not the case for the following reasons. As Mr Karim set out the reasons for the First-tier Tribunal finding that it would be unduly harsh for the claimant’s partner to return to Albania with him are that she was sexually abused in Albania and trafficked with the result that she suffers from complex PTSD, depression and anxiety, conditions which have persisted since 2015 despite her receiving treatment in the UK, and the fact that in Albania (applying country of origin information from the country guidance case of AM & BM (Trafficked women) Albania), she would have very considerable difficulties reintegrating due to the strict honour code operating in that country. As noted at paragraphs 20 and 64 of the decision, the claimant’s partner was also more than 8 months pregnant with their second child, and the mother of a three year old with congenital pulmonary airway malformation at the time of the hearing before the First-tier Tribunal. I find in this context that the First-tier Tribunal provided lawfully sufficient reasons going very significantly beyond the regular impact of deportation on a paradigm family which means that there is no doubt as to why they concluded, applying a comparative and elevated test, that requiring the claimant’s partner to accompany him to Albania would be unduly harsh to her. The use of the country guidance information I find to be entirely rational and reasonable: the claimant’s wife remains an Albanian citizen even if she has become British and there is no reason to believe that she would not suffer the very considerable issues reintegrating as a previous victim of trafficking and sexual abuse as found in the country guidance case.
18. The challenge to the conclusion that it would also be unduly harsh for the applicant’s partner to have to remain in the UK without him centred on the First-tier Tribunal’s contended failure to explicitly address the contention in the refusal decision that Social Services could ameliorate the harshness for the claimant’s partner if he were deported. I find this contention is fatally undermined by the fact that the Secretary of State does not particularise how this would be the case, and the fact that evidence from a perinatal social worker before the First-tier Tribunal (in the form of a letter dated August 2025) was that the claimant “plays a critical and irreplaceable role in maintaining the emotional and physical stability of the household”. If Social Services themselves regard the claimant’s role as irreplaceable then it cannot be a material error of the First-tier Tribunal not to address this argument.
19. It is also clear from the decision itself that issues both of emotional harm and physical harm, and not just emotional harm, are properly both considered when concluding that the stay scenario would be unduly harsh. Examples are as follows: the claimant’s partner is unable to cope with physically caring for their son without him as she has panic attacks when trying to address their son’s asthma and giving him his asthma medication via a pump, as set out at paragraph 80 of the decision; and the findings that the claimant provides essential cooking and cleaning and time to rest for his mentally unwell partner, as set out at paragraph 72 of the decision.

Decision:
1. The making of the decision of the First-tier Tribunal did not involve the making of an error on a point of law.
2. I uphold the decision of the First-tier Tribunal allowing the appeal on human rights grounds.

Fiona Lindsley

Judge of the Upper Tribunal
Immigration and Asylum Chamber

5th May 2026