Tribunal decisions

The decision

IN THE UPPER TRIBUNAL
IMMIGRATION AND ASYLUM CHAMBER Case No: UI-2026-001400
First-tier Tribunal No: HU/50374/2025
LH/02093/2025

THE IMMIGRATION ACTS

Decision & Reasons Issued:

3rd August 2026

Before

UPPER TRIBUNAL JUDGE KAMARA

Between

LIRIDON PALI
(NO ANONYMITY ORDER MADE)
Appellant
and

Secretary of State for the Home Department
Respondent

Representation:
For the Appellant: Mr B Lams, counsel instructed by Kilby Solicitors
For the Respondent: Ms S Lecointe, Senior Home Office Presenting Officer

Heard at Field House on 22 July 2026

DECISION AND REASONS
Introduction
1. The Secretary of State has been granted permission to appeal the decision of the First-tier Tribunal allowing the appellant’s deportation appeal following a hearing which took place on 15 January 2026. For ease of reference hereafter, the parties will be referred to as they were before the First-tier Tribunal.
Anonymity
2. The First-tier Tribunal did not issue an anonymity order. I consider the principle of open justice and see no reason to make an order, so none is made.
Factual Background
3. The appellant is a national of Albania now aged 32. In terms of his immigration history, the appellant entered the United Kingdom concealed in a lorry during 2014. He came to light in 2018 when he was encountered by the police and gave a false Portuguese identity. Upon being served with notice that he was considered to be an illegal entrant liable for removal from the United Kingdom, the appellant claimed asylum. While his claim was pending, the appellant was convicted of a series of offences at South-West London Magistrates Court in 2019. He received a non-custodial sentence. The asylum application was refused on 7 December 2020. The applicant was issued with an EEA Residence Card on 19 November 2020; however, this was withdrawn on 16 December 2020.
4. On 29 March 2021 the appellant was granted limited leave to remain under the EU Settlement Scheme. That leave was valid until 30 March 2026.
5. On 11 May 2022 the appellant was convicted of conspiring to supply cocaine. He was subsequently sentenced to 40 months’ imprisonment.
6. A decision to deport the appellant was made on 22 September 2022 which led to an appeal (EA/09886/2022) being lodged with the Tribunal. On 25 January 2023, the appellant was served with a Stage 2 decision to deport, along with a signed Deportation Order (DO), which led to another appeal (HU/00429/2023) being lodged with the Tribunal. On 25 July 2023 the appellant’s appeals were dismissed by First-Tier Tribunal Thapar. No appeal was lodged against those decisions.
7. Further representations were made on the appellant’s behalf following which a further decision was made on 31 December 2024 to refuse his human rights claim. This is the decision under challenge.
The decision of the First-tier Tribunal
8. At the hearing before the First-tier Tribunal, the issues in dispute were whether it would be unduly harsh on either the appellant’s British wife or baby for him to be deported and whether there were very compelling circumstances which outweighed the public interest. The judge allowed the appeal, finding that deportation would be “harsh” on the appellant’s wife and appearing to also decide that the public interest was outweighed by the circumstances of the family unit.
The appeal to the Upper Tribunal
9. The grounds of appeal state that the judge materially misdirected themselves in failing to apply and follow Devaseelan [2002] UKIAT 702, in respect of the previous decision of the First-tier Tribunal in which it was found that it would not be unduly harsh for the appellant’s partner to relocate to Albania or remain without him in the United Kingdom. It is noted that the judge made no references to the previous decision despite hearing arguments upon it.
10. A further ground is that the judge failed to apply the statutory framework in Section 117C of the Nationality, Immigration and Asylum Act 2002 and failed to follow the relevant case law when addressing the unduly harsh test and thus failed to provide adequate reasons for allowing the appeal.
11. The grounds make a number of other points including that inadequate reasons have been provided for finding that there were reasons over and above the Exceptions to justify allowing the appeal.
12. Permission to appeal was granted on the basis sought, with the judge granting permission making the following remarks.
The grounds assert that the Judge erred in: (1) making a material misdirection of law on any material matter and failing to give reasons or any adequate reasons for findings on material matters in relation to the previous Tribunal decision; (2) making a material misdirection of law on any material matter and failing to give reasons or any adequate reasons for findings on material matters, in relation to the unduly harsh test, relevant case law and elevated threshold for deportation.
The error of law hearing
13. The matter comes before the Upper Tribunal to determine whether the decision contains an error of law and, if it is so concluded, to either re-make the decision or remit the appeal to the First-tier Tribunal to do so. A bundle was submitted by the Secretary of State containing, inter alia, the core documents in the appeal, including the appellant’s and respondent’s bundles before the First-tier Tribunal.
14. The hearing was attended by representatives for both parties as above. Both representatives made submissions and the conclusions below reflect those arguments and submissions where necessary.
15. At the end of the hearing I announced that I was satisfied that the decision of the First-tier Tribunal contained material errors of law and set it aside. My reasons are as follows.
Discussion
Ground one
16. The appellant’s previous appeal was dismissed by Judge Thapa in a decision promulgated on 25 July 2023. The issues before the previous judge were similar in that the appellant was challenging his deportation on the basis that it would be unduly harsh on his wife and/or that there were very compelling circumstances.
17. The previous judge, contrary to the view of the Secretary of State, accepted that the appellant’s relationship with his wife was genuine and subsisting. On the issue of undue harshness, Judge Thapar said the following, at paragraphs 14-17.
The Appellant explained that he is worried about the impact his removal from the UK would have upon Ms Taratenko. There is no suggestion that Ms Taratenko is of anything but good health. There is nothing before me to indicate that Ms Taratenko suffers from any medical conditions or that she is reliant upon the Appellant, indeed Ms Taratenko has continued to work and live in the UK on her own whilst the Appellant has been in prison. I accept that being separated from the Appellant would be upsetting, however Ms Taratenko is working and I see no reason why she would be unable to travel to visit the Appellant in Albania and maintain indirect contact should she decide to remain in the UK. Ms Taratenko advised she would continue to provide financial support to the Appellant upon his return if required in the same way that she has been providing financial support to the Appellant whilst he has been in prison.
Ms Taratenko stated that she has lived in the UK since 2010, she is a dual British and Latvian citizen, she is working in the UK, she does not speak Albanian and it would be difficult for her to move. However, Ms Taratenko additionally stated that she would move to Albania to be with the Appellant if the Appellant was removed. There is nothing before me to suggest Ms Taratenko would be unable to obtain employment in Albania, she is a dual British national and she will retain the ability to return to the UK.
The Appellant states Ms Taratenko met his parents when they travelled to the UK for a visit. The Appellant has returned to Albania to visit his family and they are aware of his circumstances. The Appellant’s parents are working as teachers and I find it has not been shown that the Appellant and Ms Taratenko would be unable to seek support from the Appellant’s family members in Albania. Ms Taratenko would also have the support of the Appellant to assist her in integrating into life in Albania. Ms Taratenko relocated from Latvia to the UK and she was able to successfully deal with the challenges involved in such a move. I find, with this experience and the support of the Appellant along the Appellant’s family in Albania, Ms Taratenko would in time be able to adapt to life in Albania.
The Appellant avers he and his wife intend to start a family together upon his release from prison. Both the Appellant and Ms Taratenko advised that they sought IVF treatment, however, Ms Taratenko was unable to attend her appointment at the reproductive medicine clinic at Guy’s hospital in June 2022 because the Appellant was in custody. Ms Taratenko advised that such treatment is available under the NHS in the UK, however it will no longer be offered for free once she reaches the age of 40 years. There is nothing before me to suggest that IVF treatment is unavailable in Albania. Ms Taratenko and the Appellant do not assert that they require any other medical assistance or treatment. I find the difficulties raised by the Appellant and the Sponsor are far from what can be described as unduly harsh.
18. There is no mention of Judge Thapar’s decision, let alone any reference to any of her findings in the decision under challenge. Contrary to Mr Lams’ contention that there was little reliance on this decision on the part of the respondent, I note that the decision was uploaded to CCD, the respondent’s decision mentions that the appellant’s previous appeal was dismissed and that the Respondent’s Review dated 30 December 2025 proposed that the schedule of issues should include the following matter:
Whether there are reasons to depart from the determination of (the) Judge who held that although the Appellant was in a genuine and subsisting relationship with Ms Taratenko deportation would not be unduly harsh upon her.
19. Mr Lams rightly drew my attention to the fact that the decision letter did not refer directly to any aspect of the findings set out in Determination 1 and rather relied upon the conclusions in the 2023 decision letter. That this was the case does not relieve the judge of the responsibility of correctly directing herself and applying the guidance in Devaseelan, the guidance therein having been approved in BK(Afghanistan) [2019] EWCA Civ 1358.
20. The previous judge’s findings as to undue harshness, as far as it relates to the appellant’s wife, are directly relevant to his subsequent appeal. The judge ought to have taken these findings as a starting point and that she did not do so amounts to a material error of law.
Ground two
21. The judge materially misdirected herself in relation to the Exceptions to deportation and in assessing very compelling circumstances. The judge’s self-direction is set out here:
18. I had to consider whether the deportation of the Appellant would have an effect on the Appellant's partner and his child such that these amounted to very compelling circumstances.
19. I noted the case law that was cited in the skeleton argument on behalf of the Appellant and I noted the meaning of “harsh.”
22. It is obvious from the extract reproduced above that the judge, when directing herself had no regard the definition of “undue” harshness approved in HA (Iraq) [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.
23. The judge’s error is compounded at [22], where she states that it would be “harsh” to require the appellant's wife to move to Albania. Nowhere in this decision did the judge use the correct terminology for Exception 2. I also note that the judge failed to address the stay scenario in relation to the wife or the go scenario in relation to the appellant’s child and thus her consideration was also incomplete.
24. It is difficult to discern the statutory basis on which this appeal was allowed as the judge does not clear identify it. However, if the appeal was allowed under Exception 2, the judge did so without engaging with the correct test and in this materially erred. Owing to the judge’s error in this regard, her findings in relation to very compelling circumstances are unsafe, given the need to identify factors over and above the Exceptions. Indeed, it is apparent from the judge’s self-direction at [18[, that she considered that she need only show that the effect of deportation on the appellant’s wife and child when considering very compelling circumstances.
25. There is also merit in the respondent’s criticism of the judge’s somewhat perverse view of the public interest considerations, at [33], that “Detaining foreign criminals was a burden on the public purse and adversely affected society as a whole.”
26. I take into consideration Mr Lams’ submission that the judge referred to the fact that the appellant had not offended since 2022. Nonetheless, the judge’s findings in relation to rehabilitation do not begin to establish that this factor, while undoubtedly relevant, entitled him to succeed on appeal.
27. I canvassed the views of the parties as to the venue of any remaking and both were of the view that the matter ought to be remitted if there were no preserved findings of fact.
28. Applying Majera [2025] EWCA Civ 1597, I carefully considered whether to depart from the normal course of retaining the matter for remaking in the Upper Tribunal, in line with the general principles set out in Statements 3 and 7 of the Senior President’s Practice Statements, specifically at 3.1, 7.2 and 7.3. I took into consideration the history of this case, the nature and extent of the findings to be made as well as the fact that the nature of the errors of law in this case meant that there was an inadequate consideration of this deportation appeal. I further consider that it would be unfair for either party to be unable to avail themselves of the two-tier decision-making process and therefore remit the appeal to the First-tier Tribunal.

Notice of Decision
The making of the decision of the First-tier Tribunal did involve the making of an error on a point of law.
The decision of the First-tier Tribunal is set aside.
The appeal is remitted, de novo, to the First-tier Tribunal to be reheard by a different judge.

T Kamara

Judge of the Upper Tribunal
Immigration and Asylum Chamber

22 July 2026