Tribunal decisions

The decision

IN THE UPPER TRIBUNAL
IMMIGRATION AND ASYLUM CHAMBER Case No: UI-2026-001163
First-tier Tribunal No: HU/00456/2025

THE IMMIGRATION ACTS

Decision & Reasons Issued:

On 11th of September 2026

Before

DEPUTY UPPER TRIBUNAL JUDGE COTTON

Between

TYRON CHILD
(NO ANONYMITY ORDER MADE)
Appellant
and

SECRETARY OF STATE
FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: Mr A Briddock, counsel instructed by HJA Solicitors
For the Respondent: Miss L Clewey, Senior Home Office Presenting Officer

Heard at Field House on 6 July 2026

DECISION AND REASONS

1. The appellant appeals against the decision of the First-tier Tribunal (FtT) dated 10 September 2025. In that decision, the FtT refused his appeal on Human Rights grounds against the decision of the respondent to deport him based on his conviction for knowingly being concerned in evading the prohibition on the exportation of a controlled drug of Class A (Cocaine) from the UK, possession of Cocaine with intent to supply, and possession of MDMA. The appellant had been sentenced to five years and three months imprisonment by the Crown Court.

2. The appellant was given permission to appeal on the following grounds:

a. One. The FtT failed lawfully to consider the best interests of the child, or at all. The appellant has a son, aged 3, who is a British citizen;

b. Two. The FtT made findings on issues that were not before the FtT. The FtT considered exception 1 of s117C NIAA 2002, giving detailed findings, although this exception was not argued;

c. Three. The FtT used an incorrect legal test. The FtT applied the test of ‘very significant obstacles’ when assessing Exception 2 of s117C. The correct test is whether it would be ‘unduly harsh’; and

d. Four. The FtT failed to take into account submissions on the seriousness of offending.

3. My function is to consider any errors of law in the FtT decision, not assess it for preferences of style or approach. I remind myself of the need to respect the skills and experience of the FtT in this specialist jurisdiction.

4. I had the benefit of submissions on behalf of both parties

5. The FtT decision records that the parties agreed that there was a single issue for the FtT to resolve, namely whether the appellant was able to demonstrate that there are very compelling circumstances in his case to outweigh the public interest in his deportation, over and above the two exceptions in s117C(4) and (5) of the 2002 Act [7].

6. On the first ground, I note that the ASA in the FTT argues that the child’s best interests lie in remaining in the UK and for his father to also be in the UK. The ASA then sets out relevant case law and goes on to refer to the evidence of an independent social worker, who opines that it is in the child’s best interests for the appellant to remain in the UK. The FtT does take the evidence of the independent social worker into consideration in the analysis of the child’s best interests.

7. I have my attention drawn to ZH (Tanzania) v Secretary of State for the Home Department [2011] UKSC 4. From [33] I note the following in particular:

… In making the proportionality assessment under article 8, the best interests of the child must be a primary consideration. This means that they must be considered first. They can, of course, be outweighed by the cumulative effect of other considerations…

8. The FtT has assessed where the best interests of the child lie. However, I accept that this appears to be done after a decision on whether it would be unduly harsh for the child or the appellant’s wife if she were to relocate to New Zealand. I find that this is an error, given the requirement in ZH to consider the best interests of the child first. It may be that the sequencing of the analysis would have no impact on the final conclusion, but I cannot conclude that there was no prospect of a different conclusion being reached had the best interests of the child been considered first. I therefore find this error to be material.

9. With regards to ground two, the appellant pleads that the FtT ought not to have considered whether Exception 1 is met. It was accepted that Exception 1 was not made out. However, the test of ‘very compelling circumstances’ is defined in s117C(6) by reference to the tests in Exceptions 1 and 2: “very compelling circumstances, over and above those described in Exceptions 1 and 2”. It is therefore reasonable, and not an error of law in my judgment, for the FtT to approach the question of very compelling circumstances over and above those described in Exception 1 and 2 by first considering whether Exception 1 is made out. Given the definition of very compelling circumstances includes considering the test in Exception 1, it does not seem possible to me to say that Exception 1 was not before the FtT, if very compelling circumstances was being argued.

10. Ground three is not made out in my judgment. The FtT makes reference to the unduly harsh test at [49] when starting the assessment of exception 2. Later on in that assessment, at [53] the FtT concludes that the upheaval “does not amount to very significant obstacles to their ability to integrate into life there of (sic) lead to unduly harsh consequences for them”. The FtT has plainly considered whether there would be very significant obstacles or unduly harsh consequences in viewing the impact of the respondent’s decision. At [57], [60] and [61] the FtT considers the impact against the unduly harsh test. I am satisfied that the correct test was applied and that the determination is clear in doing so.

11. With regards to ground four, I am not persuaded that the FtT fell into error. There is no need for the FtT to repeat all of the submissions that were made before it, and it is wholly appropriate for the FtT to refer solely to the sentencing remarks of the Crown Court when assessing the seriousness of offending. The Crown Court judge is a specialist criminal judge who had received the evidence in the criminal trial and their assessment of the seriousness of the offending, expressed in the sentencing remarks, is the appropriate source for the FtT to consider.

12. I find a material error of law on ground one. Taking into consideration the relevant guidance, I conclude that the extent of necessary fact finding is such that fairness dictates this matter be remitted to the FtT with no findings retained.

Notice of Decision

The determination of the First-tier Tribunal contains a material error of law.

I set aside the decision of 10 September 2025.

I remit the case to the First-tier Tribunal with no retained findings of fact.

D Cotton

Judge of the Upper Tribunal
Immigration and Asylum Chamber

9 September 2026