Tribunal decisions

The decision

IN THE UPPER TRIBUNAL
IMMIGRATION AND ASYLUM CHAMBER Case No: UI-2026-002197
First-tier Tribunal No:
HU/64249/2023

THE IMMIGRATION ACTS

Decision & Reasons Issued:

On 19th of October 2026

Before

UPPER TRIBUNAL JUDGE BLUM

Between

SECRETARY OF STATE FOR THE HOME DEPARTMENT
Appellant
and

BRIKEL MATAJ
(NO ANONYMITY ORDER MADE)
Respondent

Representation:
For the Appellant: Ms A Everett, Senior Home Office Presenting Officer
For the Respondent: Ms E Rutherford, counsel, instructed by Samad & Co Immigration Consultants

Heard at Field House on 16 October 2026

DECISION AND REASONS
1. The Secretary of State for the Home Department (SSHD) has been granted permission to appeal the decision of judge of the First-tier Tribunal (IAC) Nixon (the judge) who, in a decision dated 20 January 2026, allowed the appeal of Mr Brikel Mataj (respondent) against the SSHD’s decision dated 28 November 2023 to refuse his human rights claim.
Background
2. The respondent is a national of Albania. He first arrived in the UK in 2000 claiming to be a Serbian national. Although his asylum claim was refused, he applied for indefinite leave to remain outside the immigration rules in 2008 and this was granted by the SSHD. An application for naturalisation as a British Citizen was successfully made in 2013.
3. The respondent’s spouse is an Albanian national who entered the UK in November 2017, together with her infant son (fathered by the respondent) to join him. The respondent and his wife had two further children, twins, born in January 2019 in the UK. All three children are British Citizens.
4. In February 2014 the respondent was convicted of possession of cannabis with intent to supply for which he received an 18-month custodial sentence. In August 2016 the SSHD requested checks from the British Embassy in Tirana (Albania) which revealed the respondent’s actual nationality. The SSHD informed the respondent twice (in May 2018 and again 10 March 2021) that she was considering depriving him of his British Citizenship and, in May 2021, the SSHD made such a decision. The respondent appealed this decision, but his appeal against the deprivation decision was dismissed and he became ‘appeal rights exhausted’ on 19 July 2022. In January 2023 the SSHD decided to deport the respondent. Following representations made on behalf of the respondent that amounted to a human rights claim the SSHD, on 28 November 2023 refused that claim.
The appeal to the First-tier Tribunal (IAC) and the judge’s decision
5. The respondent’s appeal was based on his relationship with his spouse and his three children. The respondent contended that the impact of the refusal of his human rights claim would have an unjustifiably harsh impact on his spouse and their children (the test established by Parliament in s.117C(5) of the Nationality, Immigration and Asylum Act 2002 (the 2002 Act), and that, in any event, there were ‘very compelling circumstances’ over and above the statutory exception in s.117C(5) that outweighed the public interest in his deportation (s.117C(6) of the 2002 Act). The eldest child was 9 years old at the date of the judge’s decision, and the twins had just turned 7 at the date of the judge’s decision. The SHHD argued in her November 2023 decision, and in the Review of the appeal lodged by the respondent, that there would be no unduly harsh impact on the spouse or the appellant’s children if he was deported and they remained in the UK (the ‘Stay’ scenario), and that there would be no unduly harsh impact on the spouse or children if they had to leave the UK and join the respondent in Albania in order to maintain family unity (the ‘Go’ scenario).
6. The judge heard evidence from both the respondent and his wife. This included evidence from the respondent that his mother-in-law lived in Albania and that his spouse and children had visited her the previous year. The judge then heard submissions from the representatives which he recorded in his decision at [8].
“Mr Malcolm relied on the refusal letters and review. He submitted that it would not be unduly harsh for the appellant’s wife to remain in the UK with the children as she was working and could obtain some support from the appellant’s brothers. He argued that the appellant could reestablish himself in Albania as he had family in the country with whom he could live and he was an intelligent educated man. He submitted that, albeit unlikely to be the preferred option, the children could relocate to Albania as they were young enough to reestablish themselves. He acknowledged that there had been some delay in making the deportation order but submitted that this was reasonable due to the complexities of the deprivation decision which in turn delayed the making of the deportation order.”
7. Then at [14] the judge stated:
“There is no question that he is in a genuine and subsisting relationship with his 3 children aged 9 and 7. The real questions for me to determine is whether it would be unduly harsh for the appellant to be deported but for the children to remain in the UK with their mother and whether it would be unduly harsh for him to be deported and the children and his wife to go to Albania with him.”
8. At [16] the judge stated:
“I have seen that the children are enrolled at school and it is clear from the oral evidence and that contained in the plethora of letters that they have not only made friendships, but also that they have numerous extra-curricular activities, particularly football, in which the appellant has a keen involvement. Whilst it is open to the children to leave the UK with their mother and return to Albania, they are British citizens and would thereby be giving up the rights and benefits of their nationality. It is therefore unlikely that this is an option and in fairness, this is not an option relied upon by the respondent.” [my emphasis]
9. The judge then, at [17], considered the history of the case and referred to “… the delay in the making of the deportation order some 10 years after the [respondent’s] conviction.” The judge continued:
“Whilst I acknowledge that it was unknown until 2016 that the appellant’s British citizenship had been obtained by deception, no reasonable explanation has been put forward as to why it took the respondent until 2021 to make the decision ( the Supreme Court judgement in Hysaj was given in 2017 and so provides no explanation) by which time the appellant’s wife and his oldest son had come to the UK and the twins born, with no expectation of their family life being uprooted. Similarly, after the First Tier Tribunal’s decision regarding the deprivation of his citizenship in 2022, despite the respondent’s promise to make a decision within 8 weeks regarding deportation, it took the best part of a further 2 years before the order was made. Once again, family life was continuing for the children and his wife with no indication that the appellant could be deported. I find that what can only be described as an inordinate delay in this case is pertinent as during that time the bond between father and sons became stronger, particularly once he was prevented from working in 2024.”
10. The judge concluded that the impact on the children would be unduly harsh having regard to an Independent Social Worker report which identified the negative effects on the children if separated from their father and noting that maintaining contact via modern means of remote communication could not replicate physical contact.
11. The judge then considered, out of completeness, whether there were ‘very compelling circumstances’ over and above the exception in s.117C(5) that outweighed the public interest. In carrying out this assessment the judge referred to the respondent’s criminal offence in respect of the public interest in his deportation of reducing the risk of further offending and deterring other foreign nationals from committing offences. Balanced against the public interest the judge noted the close relationship between the respondent and his spouse and children, the length of the respondent’s residence in the UK, the absence of any further offending by him, his good employment record and the links he had forged in the community. The judge concluded that the respondent’s family and private life outweighed the public interest in his deportation in respect of his single set of offences from 2014.
The appeal to the Upper Tribunal and the ‘error of law’ hearing
12. The SSHD obtained permission to appeal the judge’s decision. The discursive grounds of appeal essentially contended that the judge mistook a comment by the Presenting Officer in respect of the ‘Go’ scenario. The comment by the Presenting Officer at the FtT hearing that the ‘Go’ scenario (where the entire family leave with the respondent to live in Albania) was “unlikely to be a preferred option” was wrongly interpreted by the judge as a concession that the ‘Go’ scenario was not being relied on by the SSHD (see paragraph 8 above). The failure by the judge to properly consider the ‘Go’ scenario meant that the judge did not properly address the full scope of the SSHD’s case. The SSHD additionally contended that, in reaching his decision that it would be unduly harsh on the respondent’s children if he was deported, the judge failed to give adequate reasons for his conclusion (paragraphs 11 & 12 of the grounds) and that the evidence upon which he relied did not support his conclusion (paragraph 13 of the grounds). The grounds of appeal additionally contend that the judge erred in his assessment under s.117C(6) of the 2002 Act by failing to adequately identify anything in the respondent’s claim that were ‘over and above’ the exceptions in s.117C(4) and (5). In particular, the judge failed to consider the impact of the respondent’s lengthy deception as to his nationality, which allowed him to undertake employment and become a British citizen when he would not otherwise have been so entitled.
13. At the ‘error of law’ hearing Ms Everett submitted on behalf of the SSHD that the judge’s mistake concerning the SSHD’s reliance on the ‘Go’ scenario was problematic and rendered the decision unsafe. The judge failed to give any cogent reasons why the ‘Go’ scenario was unavailable to the respondent’s family given that the spouse was Albania, the young ages of the children, the fact that Albanian was still spoken in the family home, and the fact that the family had previously gone to Albania to visit family. Ms Everett further submitted that the judge misapprehended the delay in his assessment as it was open to the respondent to have accepted that he had deceived the authorities as to his true nationality and the decision to deport him was made only 6 months after he had exhausted his appeal rights in respect of his deprivation appeal.
14. On the respondent’s behalf Ms Rutherford properly acknowledged that the SSHD had always relied on both the ‘Stay’ and the ‘Go’ scenarios and that there has been no formal concession of the ‘Go’ scenario by the Presenting Officer. She submitted however that any failure by the judge to fully address the ‘Go’ scenario could not have made a material difference to his ultimate decision as all three children were British. She further submitted that the SSHD could have taken steps at an earlier time to deprive the respondent of his British citizenship, although she conceded that there had not been a significant delay in respect of the actual deportation proceedings. Ms Rutherford submitted that the judge gave a number of reasons why the ‘very compelling circumstances’ test had been met.
15. I reserved my decision.
Discussion
16. I am satisfied for the following reasons that the judge’s decision contains material legal errors and must be set aside.
17. There was general agreement between the representatives that the Presenting officer in the FtT hearing had not conceded the ‘Go’ scenario. In other words, the SSHD continued to rely on the contention that it would not be unduly harsh on the respondent’s spouse and three children if they were to accompany or join the respondent in Albania. At [16] the judge gave, at best, a cursory view of some points in the respondent’s favour as to why it may be unduly harsh to expect the children to relocate. There was however no detailed assessment, and the judge therefore failed to consider a number of relevant factors that could militate against a finding of undue harshness such as the young ages of the children, the fact that their mother is Albanian, the fact that Albanian is spoken in the family home and the existence of family members in Albania. I reject Ms Rutherford’s submission that the judge, had he properly directed himself on the facts and the law, would inevitably have concluded that the impact on the spouse and children would be unduly harsh. The judge may have so found, but it was not inevitable.
18. I am additionally satisfied that the judge failed to properly factor in relevant public interest factors when assessing whether there were ‘very compelling circumstances’ over and above the exceptions in s.117C(4) and (5) that outweighed the public interest in the respondent’s deportation. At no point in the judge’s assessment under paragraph 117C(6) does he mention the respondent’s lengthy deception regarding his nationality or the fact that the respondent’s “good employment” only came about because he deceived the British authorities. These significant public interest factors were not weighed in the balance by the judge. The judge has therefore failed to undertake a lawful balancing exercise. This is sufficient to render the decision unsafe and require it to be set aside.
Remittal to First-Tier Tribunal
19. Under Part 3 paragraph 7.2(b) of the Upper Tribunal Practice Statement of the 18 June 2018 a case may be remitted to the First-tier Tribunal if the Upper Tribunal is satisfied that:
(a) the effect of the error has been to deprive a party before the First-tier Tribunal of a fair hearing or other opportunity for that party's case to be put to and considered by the First-tier Tribunal; or
(b) the nature or extent of any judicial fact finding which is necessary in order for the decision in the appeal to be re-made is such that, having regard to the overriding objective in rule 2, it is appropriate to remit the case to the First-tier Tribunal.
20. Having found material legal errors in the judge’s assessment, I am not satisfied it is appropriate to preserve any findings (see Majera v Secretary of State for the Home Department [2025] EWCA Civ 1597, at [50]) in light of the judge’s misapprehension of any delay by the SSHD (I accept Ms Everett’s submission that there had been no significant delay in respect of the decision to deport the respondent and there was only a 6 month period between the respondent becoming appeal rights exhausted on 19 July 2022 and he decision to deport him on 18 January 2023). I consider that, in these circumstances, there will need to be a full re-assessment of all the evidence rendering it appropriate to remit the matter back to the First-tier Tribunal for a full fresh (de novo) hearing.
Notice of Decision
The judge’s decision contains a material error of law and the ‘error of law’ appeal is allowed.
The matter will be remitted to the First-tier Tribunal (IAC) to be determined afresh by a judge other than judge Dixon.

D. Blum

Judge of the Upper Tribunal
Immigration and Asylum Chamber

16 October 2026