Tribunal decisions

The decision

IN THE UPPER TRIBUNAL
IMMIGRATION AND ASYLUM CHAMBER Case No: UI-2026-001510
First-tier Tribunal No: HU/00793/2025

THE IMMIGRATION ACTS

Decision & Reasons Issued:

23rd June 2026

Before

DEPUTY UPPER TRIBUNAL JUDGE COLE

Between

SECRETARY OF STATE FOR THE HOME DEPARTMENT
Appellant
and

JH
(ANONYMITY ORDER MADE)
Respondent

Representation:
For the Appellant: Mr E Tufan, Senior Home Office Presenting Officer
For the Respondent: Mr P Heywood, Counsel instructed Spencer West Solicitors

Heard at Field House on 15 June 2026

Order Regarding Anonymity

Pursuant to rule 14 of the Tribunal Procedure (Upper Tribunal) Rules 2008, JH and his family are granted anonymity.

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

DECISION AND REASONS
Introduction
1. To avoid confusion I will refer to the parties as they were before the First-tier Tribunal: JH as the appellant and the Secretary of State as the respondent.
Anonymity
2. I have continued the anonymity order made by the First-tier Tribunal. I have considered the public interest in open justice but conclude that it is outweighed by the importance of facilitating the discharge of the United Kingdom’s obligations under the Human Rights Act 1998 in the circumstances of this case.
Background
3. The appellant is a Chinese national. He came to the UK in 2009 with his mother to join his father. The appellant was granted indefinite leave to remain. The appellant has several convictions for financial crimes. In 2018 he was sentenced to a total of 40 months’ imprisonment. His appeals against deportation were dismissed by Judges Feeny and Malone in 2019 and 2022 respectively. A deportation order was made against the appellant.
4. The appellant was convicted of further offences and was sentenced to 27 months’ imprisonment on 2 October 2024. The appellant applied to revoke the deportation order. This was treated as a human rights claim which was refused by decision dated 28 March 2025.
5. The appellant appealed to the First-tier Tribunal. The appeal was heard by Judge Oxlade on 10 February 2026.
6. Judge Oxlade found that the appellant has a genuine and subsisting relationship with his wife (W), and a genuine and subsisting parental relationship with his children (WW and J), and that the effect of the appellant’s deportation on his family would be unduly harsh. Judge Oxlade allowed the appellant’s appeal.
7. The respondent submitted grounds of challenge. By decision dated 26 March 2026 First-tier Tribunal Judge Burnett granted permission on the following terms
1. The application is in time.
2. The grounds assert that the Judge erred in the assessment of whether the circumstances were unduly harsh, either by the appellant’s wife and children going to China or remaining without the appellant in the UK. It is asserted that there are inadequate reasons for the findings made and a challenge is made to the findings regarding the ability for the appellant’s wife and children to go to China.
3. The judge has not set out the high threshold test for finding it would be unduly harsh for the appellant’s wife and children to go to China. The judge finds that to renounce British Citizenship and obtain Chinese citizenship would be of itself unduly harsh. It is arguable that there is a material error of law in this analysis. The summary in paragraph 38 arguably does not provide adequate reasons when the judge found that the appellant is able to integrate in China and that they have family in China and so arguably could support his wife and children in the transition.
4. It is arguable that the findings in paragraphs 40 and 41 are not adequate to address the question of why it would be unduly harsh for the children and the appellant’s wife to remain in the UK without the appellant.
5. I grant permission to appeal.
8. Thus, the matter came before me to determine whether Judge Oxlade’s decision involved the making of an error on a point of law.
The Hearing
9. Mr Tufan relied upon on the grounds of appeal and expanded on them.
10. The appeal was allowed as the Judge found for the appellant on both the stay and the go scenario. Mr Tufan confirmed that the respondent challenged both conclusions. However, he did acknowledge that the challenge to the stay scenario was the stronger point.
11. It is now accepted that the appellant’s relationship with W, WW and J are genuine and subsisting. However, it is submitted that the Judge had failed to correctly apply the unduly harsh test as detailed in HA (Iraq) v SSHD [2022] UKSC 22.
12. Mr Tufan clarified that it is not being argued that the Judge’s decision is irrational or perverse, but that there was an insufficiency of reasons. He submitted that the Judge’s reliance on the nationality point was misguided. He submitted that there was a dearth of evidence regarding W’s mental health issues.
13. Mr Tufan submitted that the unduly harsh test was not met and that there were insufficient reasons given by the Judge for her conclusion that the test was met.
14. Mr Heywood relied upon the very detailed Rule 24 that he had prepared.
15. He submitted that there was no material error of law in the Judge’s decision. He submitted that the grounds were a mere attempt to reargue the merits of the case.
16. Mr Heywood submitted that there was no inconsistency in the Judge’s language to indicate that she had not applied the unduly harsh test correctly. He highlighted that the expert reports were effectively not challenged by the respondent as no reasons were given for why they should not be accepted.
17. He submitted that the expert reports were accepted by the Judge who drew on the conclusions of the experts. He submitted that the reasons given were sufficient when the decision was read as whole. Mr Heywood submitted that the Judge had undertaken a detailed analysis of all relevant matters and reached sustainable conclusions.
18. Mr Tufan briefly responded. He submitted that the appellant and W have family in China who could offer support and that the Judge failed to balance this in the equation. He submitted that the key issue is whether the reasoning provided by the Judge in paragraph 40 of her decision was sufficient. Mr Tufan submitted that there was too much speculation to conclude that the likely consequences reach the unduly harsh threshold.
19. After hearing the submissions, I reserved my decision.
Discussion and Analysis
20. When considering whether the judge made a material error in law in allowing the appellant’s appeal, I have reminded myself of the following principles.
21. It is not permissible for the Upper Tribunal to simply disagree with the result or the way in which it was reached (see paragraph 36 of South Bucks County Council v Porter [2004] UKHL 33).
22. I take note of the narrow circumstances in which an appellate Tribunal may interfere with findings of fact and credibility by the fact-finding Tribunal. In Volpi v Volpi [2022] EWCA Civ 464, the Court of Appeal confirmed that unless the First-tier Judge's decision is “rationally insupportable”, the Upper Tribunal should not interfere with findings of fact by the First-tier Judge who had seen and heard the oral evidence.
23. I also remind myself that the Upper Tribunal is required to exercise judicial restraint in its oversight of the First-tier Tribunal's reasoning, as detailed by the Court of Appeal in paragraph 26 of Ullah v SSHD [2024] EWCA Civ 201.
24. Mr Heywood in his Rule 24 helpfully highlighted the recent guidance from the Court of Appeal in Kapikanya v SSHD [2025] EWCA Civ 987 where the following principles were approved:
(1) The FTT is a specialist fact-finding tribunal, and the UT should not rush to find an error of law in its decisions simply because it might have reached a different conclusion on the facts or expressed themselves differently, as the appeal is available only on a point of law: see AH (Sudan) v Secretary of State for the Home Department [2007] UK HL 49 [2008] 1 AC 678, at [30];
(2) Where a relevant point is not expressly mentioned by the FTT, the UT should be slow to infer that it has not been taken into account: see MA (Somalia) v Secretary of State for the Home Department [2010 UKSC 49 [2011] 2 All ER 65, at [45];
(3) When it comes to the reasons given by the FTT, the UT should exercise judicial restraint and should not assume that the FTT misdirected itself just because not every step in its reasoning is fully set out: see R (Jones) v First Tier Tribunal and Criminal Injuries Compensation Authority [2013] UKSC 19 [2013] 2 All ER 625, at [25];
(4) The issues that the FTT is deciding and the basis on which the FTT reaches its decision on those issues may be set out directly or by inference: see UT (Sri Lanka) v The Secretary of State for the Home Department [2019] EWCA Civ 1095, at [27], and
(5) The judges sitting in the FTT are to be taken to be aware of the relevant authorities and to be seeking to apply them without needing to refer to them specifically, unless it is clear from their language that they have failed to do so: see A4 (Nigeria) v Secretary of State for the Home Department [2020] EWCA Civ 1296 [2020] 4 WLR 145, at [34].
(6) It is of the nature of proportionality assessment that different tribunals, without illegality or irrationality, may reach different conclusions on the same case and the mere fact that one tribunal has reached what may seem an unusually generous view of the facts of a particular case does not mean that it has made an error of law: see MM (Lebanon) v Secretary of State for the Home Department [2017] UKSC 10 [2017] 1 WLR 1260, at [107].
25. These principles are particularly material to the assessment of the decision in this case and to deciding whether the Judge erred in law in reaching her conclusions.
26. There is no basis to conclude that the Judge failed to correctly apply the unduly harsh test as detailed in HA (Iraq) v SSHD [2022] UKSC 22. The experienced Judge in this case would be aware of the relevant authorities and would have applied them correctly without the need to specifically refer to them. Mr Tufan was unable to point any of the Judge’s language or terminology that indicated that she was applying anything other than the correct unduly harsh test.
27. The respondent’s main challenge in the grounds is to the Judge’s reliance on the three expert reports submitted by the appellant. The Judge notes at paragraph 7(iii) that the respondent conceded the expertise of the experts though not the conclusions reached. In relation to the country expert report, the Judge stated at paragraph 28 that “though the Respondent did not challenge her expertise, the Respondent said that the conclusions of all the experts were challenged, but did not say in what way.”
28. The respondent did not accept the conclusions of the experts but failed to provide any reasons as to why the Judge should not accept the conclusions. The respondent accepted the expertise of the various experts. Mr Heywood accepted that the failure of the respondent to articulate any basis to reject the expert’s conclusions did not mean that the Judge was obliged to accept their conclusions. However, he submitted that it did mean that the Judge only needed to provide brief reasons as to why she accepted the conclusions of the experts. I agree with this analysis.
29. When considering the decision holistically, it is clear that the Judge has carefully considered the expert reports and that she accepts the conclusions drawn by the experts. The Judge considers the country expert report in paragraphs 28 and 29. The psychologist and independent social worker reports are considered in paragraphs 33, 34 and 40. I find that, when the decision is read as a whole, the Judge has given sufficient reasons for accepting the conclusions of the three experts, which are the basis of the Judge’s finding that the effect of the appellant’s deportation on his family would be unduly harsh.
30. I find that the respondent’s grounds are merely an attempt to reargue the merits of the case and to try to raise issues with the expert reports that could have been (but were not) raised before the Judge.
31. In relation to the go scenario, the respondent suggests that the Judge’s reliance on the country expert is misguided when dealing with the nationality issues. The gov.uk information referenced by the respondent in the grounds was in the country expert’s report. In fact, the country expert specifically states that W “would be regarded as a Chinese national by the Chinese authorities.” This is the issue the respondent asserts in the grounds that the country expert failed to consider, whereas it is clearly referenced. There is no foundation for the claim that the country expert failed to address all relevant matters and thus there is no basis for concluding that the Judge’s reliance on the country expert was misguided.
32. Furthermore, this matter only relates to W. The respondent in the grounds (and Mr Tufan before me) asserted that WW and J, who are British citizens born in the UK, “were born Chinese nationals.” However, no evidence had been presented to support this assertion. Further, there was no evidence presented to suggest that the country expert report was inaccurate.
33. Thus, the respondent’s grounds on this issue are rejected.
34. The respondent’s grounds take issue with the Judge’s consideration of the hukou registration issue. This is another attempt to reargue the merits and fails to disclose any error of law. The Judge accepted the findings of the previous judge on this issue and the unchallenged country expert report detailed the potential obstacles to integration in China.
35. Further in relation to the go scenario, the respondent submits that the Judge failed to take into account the likelihood of family support from the appellant’s and W’s family in China. This submission is factually incorrect. The Judge did consider the possible existence of family support. The decision must be read as a whole where it can be seen that the Judge relied on the findings of the previous judges and also referenced evidence regarding family and support in China.
36. Also in relation to the go scenario, the respondent argues that the Judge failed to undertake an adequate assessment or cite any medical evidence when making her finding that W is not “robust” enough to move to China. The grounds are not an accurate reflection of what the Judge actually says in paragraph 36. The concluding line of this paragraph states that the Judge’s “assessment is that she is not robust and any move to China with all the uncertainties risks her health and the children’s well-being.” This finding is based on the Judge’s overall assessment of the evidence including the various expert reports. This is a reasonable conclusion based on the evidence before the Judge. This is another attempt by the respondent to reargue the merits of the case rather than identify any legal flaw in the Judge’s decision.
37. Finally in relation to the go scenario, the respondent in the grounds introduces new evidence and a new argument regarding visas to enter China that was not before the Judge. This cannot demonstrate that the Judge erred in law.
38. In relation to the grant of permission and reference to the Judge’s statement that to renounce British citizenship and obtain Chinese citizenship would be of itself unduly harsh, it is clear that paragraph 37 is not to be read in isolation. The Judge’s conclusion on the go scenario rested on the cumulative effect of the nationality position, the practical consequences of the hukou system, the appellant’s precarious employment prospects, the likely delay in securing education and healthcare, the uncertain availability of family support, and the accepted evidence as to W’s and the children’s vulnerability.
39. The Judge considered all relevant matters and reached sustainable conclusions in relation to the go scenario. The respondent’s grounds fail to show an error of law in this regard.
40. In relation to the stay scenario, which was acknowledged by Mr Tufan to be the stronger of the points relied upon by the respondent, it is argued that the Judge failed to provide adequate reasons for her conclusions or apply the correct unduly harsh test.
41. As detailed previously, there is no evidence from the Judge’s use of language and terminology to indicate that she has applied the incorrect legal test to determine whether the appellant’s family remaining in the UK without him would be unduly harsh. As submitted by Mr Tufan, the key issue is whether the reasoning provided by the Judge in paragraph 40 of her decision was sufficient.
42. This aspect of the case has given me cause for significant consideration. The unduly harsh test is a considerably elevated threshold requiring something much higher than severe or bleak. If viewed in isolation, then it is possible to construe the reasoning contained in paragraph 40 as perhaps insufficient when considering the serious nature of the issue to be resolved. However, in my judgment it is necessary to consider the decision as a whole.
43. As detailed previously, it is clear that the Judge accepted the conclusions of all the experts. When all the reports are read in totality, and in conjunction with the other evidence (for example see the references to CAMHS, GP and school evidence in paragraph 33), then the global conclusions in paragraph 40 are sufficiently reasoned and justified.
44. It may be that fuller quotations from the expert reports in paragraph 40 may have helped the casual observer to have a more complete understanding of the basis for the Judge’s conclusions. However, when read holistically, the decision of the Judge sufficiently explains to the parties why she accepted the conclusions of the experts and why she reached the findings she did in paragraph 40.
45. Read fairly and as a whole, paragraph 40 was supported by the accepted expert evidence, the references to CAMHS, GP and school material, the evidence of W’s mental health difficulties, the children’s deterioration during the appellant’s absence, and the improvement observed after his return to the family home.
46. The reasons the Judge gave for finding that the appellant’s family remaining in the UK without him would be unduly harsh were sufficient. The expert reports provided ample support for the unduly harsh finding made by the Judge.
47. Finally, the respondent in the grounds refers to the Judge’s paragraph 41. This paragraph contains a reasonable but unnecessary observation about what could potentially happen in the future if the appellant were to reoffend. This does not undermine the Judge’s decision to allow the appeal. These comments have no bearing on the Judge’s unduly harsh findings. The respondent’s grounds in this regard fail to demonstrate any error of law.
48. Overall, the respondent’s grounds amount to an attempt to reargue the merits of the case and fail to demonstrate any error of law in the Judge’s decision. When read in totality and considering the expert evidence, the Judge applied the correct legal unduly harsh test and provided sufficient reasons for her findings.
49. Therefore, in conclusion, for the reasons above, I find the Judge has not made material errors of law in her decision and reasons.
Notice of Decision
The First-tier Tribunal has not been shown to have made an error of law material to the decision to allow the appeal. The determination shall stand.

C R Cole
Deputy Judge of the Upper Tribunal
Immigration and Asylum Chamber

17 June 2026