Tribunal decisions

The decision

IN THE UPPER TRIBUNAL
IMMIGRATION AND ASYLUM CHAMBER Case No: UI-2026-002213
HU/58460/2024

THE IMMIGRATION ACTS

Decision & Reasons Issued:

On 23rd of September 2026

Before

UPPER TRIBUNAL JUDGE BRUCE

Between

IO
(anonymity order made)
Appellant
and

SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:

For the Appellant: Mr Davis, Counsel instructed by Crown and Law Solicitors
For the Respondent: Mr McVeety, Senior Home Office Presenting Officer

At: Manchester Civil Justice Centre on the 11 September 2026

Anonymity

Unless and until a tribunal or court directs otherwise, the appellant is granted anonymity. No report of these proceedings shall directly or indirectly identify him or anyone else involved in this appeal. This direction applies both to the appellant and to the respondent. Failure to comply with this direction could lead to contempt of court proceedings.

DECISION AND REASONS

1. The Appellant is a national of Nigeria born on 29 December 1985. He appeals with permission, on limited grounds, against the decision of the First-tier Tribunal to dismiss his appeal.

2. The history of this matter can be briefly stated since the details of the Appellant’s immigration history are known to the parties. The Appellant arrived in the UK in 2004 in possession of a valid visitor’s visa. He overstayed. He made various attempts to regularise his position, all of which failed; that is until 4 November 2019 when he was granted 30 months leave to remain on human rights grounds. This grant was made in recognition of the undisputed fact that the Appellant is the father of two British children, twins born in 2016. On 30 July 2021 the Appellant was convicted of what is known, for the purposes of these proceedings, as ‘the index offence’. He was sentenced to 3 years and 3 months imprisonment on 4 counts of possession with intent to supply class A drugs.

3. The effect of this conviction is that the Appellant is, as a matter of law, a ‘foreign criminal’ as defined by s32 UK Borders Act 2007. The effect of that designation is that he is subject to ‘automatic deportation’ unless he can demonstrate that one or more of the exceptions in section 33 of that Act apply to him. Before the First-tier Tribunal the Appellant argued that two such exceptions did in fact apply.

4. First, he said that he could not be deported because he was a refugee or otherwise had protection needs. He claimed that as a Christian living in Nigeria he was at risk of violence from Islamic extremists. This was rejected on the facts by the First-tier Tribunal, and although the Appellant sought to challenge those findings in this onward appeal, he was refused permission to do so by First-tier Tribunal Judge Bowes on 30 April 2026. I need not therefore to say any more about that.

5. The Appellant’s second ground of appeal related to Article 8 ECHR. Here, he advanced three distinct, but related arguments.

6. He submitted that he had been living in the UK for so long that his deportation would be an unlawful interference with his private life. The First-tier Tribunal accepted that the Appellant had been here since 2004, and that he was probably culturally and socially integrated in the UK; almost all of that period of residence had however been unlawful, and on the other side of the coin the Tribunal could not be satisfied that there were very significant obstacles to his re-integration in Nigeria, a country he had left as an adult. The Appellant could not, therefore, succeed on ‘private life’ grounds.

7. Second, the Appellant submitted that his deportation would have an ‘unduly harsh’ impact upon his British children, so that it would amount to a disproportionate interference with the family life that they enjoy with the Appellant. Of this matter the First-tier Tribunal said the following:

31. The relationship with his children was accepted. It was also accepted that the children are to remain in the United Kingdom with their primary carer, their mother. The issue is whether the effect of separation upon them would be unduly harsh. The appellant states he has contact with his children every fortnight on a face to face basis. He takes them out to places such as McDonald's and sees family and friends. He states he is able to call them outside of these visits whenever he wishes. He stated there was no particular pattern to the contact over the telephone. Sometimes it can be multiple times a day or sometimes three times a week. He stated that if he were in Nigeria it would be impossible to stay in touch. He stated he would have no money to buy a phone a phone is considered a luxury item in Nigeria and they are very expensive. Whilst he has a smartphone in the United Kingdom the contract that he has would not work if he were in Nigeria. He also stated it would not be possible to buy a phone in Nigeria. I did not find this evidence to be credible. As the respondent suggested in submissions I find that the appellant was simply trying to invent barriers to communication when none in fact would exist. If the appellant were in Nigeria I find he would be able to make telephone calls to his children.

32. One of the twins has ADHD and the appellant has stated that he is needed so there can be physical contact between him and his daughter. He accepts that their mother is their full time carer and if his daughter is having what was referred to as an “ADHD episode” his mother can calm her and address the issue as she is with the child for the majority of the time. His presence in the United Kingdom is not therefore necessary.

33. In matters of deportation where there are children involved there will necessarily be some upset, confusion and distress when a party is separated. This is sometimes the consequences of a person's criminal conduct. The question is whether the effect is unduly harsh. In considering all the evidence provided and in particular the medical issues and the bond between the appellant and his children I do not find that the separation would be unduly harsh.

8. None of those findings have been challenged in this appeal, and so are undisturbed.

9. The final limb of the case put under the heading Article 8 was that the deportation was disproportionate because there were here “very compelling circumstances” why the Appellant should not be deported: s117C(6) Nationality Immigration and Asylum Act 2002. This required a holistic assessment of all of the circumstances. The Tribunal was required to weigh the very significant public interest in removing individuals who have breached immigration law, and committed criminal offences, against all of the things that might be said in that individual’s favour. Here, that included his long residence, the private life he has established here, his relative lack of connection to Nigeria, his claimed remorse for dealing class A drugs, his efforts at rehabilitation and the impact on his children. On 30 April 2026 First-tier Tribunal Judge Boyes granted the Appellant permission to appeal on the very limited ground that the First-tier Tribunal may have erred in failing to properly undertake this exercise. In particular, the Appellant submits, the First-tier Tribunal decision nowhere assesses whether the Appellant’s deportation would be contrary to his children’s best interests, as it is, in effect, required to do by s55 of the Border Citizenship and Immigration Act 2009.

10. In his oral submissions Mr Davis emphasised the Appellant’s close relationship with his children. He lived with them and their mother since their birth in 2016, and was only separated from them by his arrest and being remanded in custody in June 2020. He was their “primary carer” during this period, taking them to and from nursery and attending “parent- teacher” meetings. He continues to be the point of emergency contact for the children. The mother was not very well and relied on the Appellant when she was unable to look after the children herself. All of this was important and underscored how it was contrary to their best interests for their father to be deported.

11. In response Mr McVeety for the Secretary of State accepted that the First-tier Tribunal does not expressly make a ‘best interest’ assessment on the face of its decision. He submitted, however, that in this case that omission makes no difference at all. He pointed to the ‘unduly harsh’ assessment at paragraphs 31 and 32 of the First-tier Tribunal decision (set out above). He submitted that it is apparent from this that even if the Tribunal had found that it would be in the children’s best interests for their father to remain in the UK – something he described as “hardly controversial” - this was not a factor capable of displacing the very significant weight to be attached to the public interest in deporting the Appellant.

12. Unfortunately I was not able to immediately assess these competing arguments at the hearing on the 11 September. Mr Davis made repeated reference in his submissions to evidence which he believed to have been before the First-tier Tribunal, for instance medical evidence relating to the children’s mother. I have not seen any of that material because the Appellant’s representatives have failed to comply with directions and file a composite bundle. Mr Davis was obviously disadvantaged by those instructing him in this regard. I therefore directed that they had until 16.00 on the 18 September 2026 to file the bundles, which were to be strictly limited to the evidence that was before the First-tier Tribunal.

13. Pursuant to my directions, that bundle was filed. I have considered the material therein and this is my decision.

Error of Law: Discussion and Findings

14. The first thing to say is that the bundle did not contain any evidence that the Appellant’s partner falls ill from time to time, requiring him to step in and look after the girls. That was the way that Mr Davis framed his submission to me, and it was unsupported by the evidence that I have seen.

15. That said, the decision of the First-tier Tribunal did not contain a best interests assessment. I agree with McVeety that it is hardly controversial to say that this would have been decided in the Appellant’s favour: absent countervailing indicators such as abuse, it is almost always in a child’s best interests to have an active relationship with both parents.

16. I am also struck by the quantity of evidence in that bundle that does not receive express acknowledgement in the decision of the First-tier Tribunal.

17. In respect of the children there is no mention of the social worker’s assessment, made over several visits to a contact centre, which portrays a warm and positive relationship between the girls and their dad. Nor does the decision refer to the documents showing that the Appellant pays approximately £800 per month to their mother towards their upkeep, nor to the order of the Family Court which underpins his visitation rights; nor to the statements by family members which endorse his evidence that he enjoys a close relationship with his children. Looking at all of that it is clear that Mr McVeety’s preliminary assessment would have been borne out by a closer look at the evidence.

18. I am also satisfied that the decision of the First-tier Tribunal does not really do justice to the Appellant’s efforts since his release from prison. There is a reference at paragraph 21 to the “attempts he has made to secure employment”. Presumably this is an allusion to the following material, all of which post-dates his release:

i) A letter confirming that the Appellant is a valued volunteer at a centre for disabled children

ii) A card and certificate showing that he has completed his construction worker training and is authorised to work on site

iii) His qualification as a LGV driver

iv) Evidence confirming that the Appellant has been attending college, where he has completed a diploma in electrical engineering, and is undertaking an access course to nursing

v) An offer from Leeds Becket University for him to attend and study to be a Mental Health Nurse

19. In respect of the university offer I would note that applicants for a nursing course would be subject to mandatory enhanced DBS checks. Leeds Becket were therefore likely aware of the Appellant’s convictions, but were satisfied that they should make the offer anyway. That is significant evidence in his favour, going to both his rehabilitation, and I think it was certainly an error for the First-tier Tribunal to have overlooked it.

20. A further omission is the failure to acknowledge that the children’s mother is HIV+, although as I note above there was nothing in the evidence before the Tribunal other than this bare diagnosis.

21. I appreciate that the First-tier Tribunal is not obliged to refer to every single piece of evidence before it, but the material I have summarised above was the centrepiece of the Appellant’s case. It was all capable of weighing in his favour and I think it should have been expressly addressed.

22. The question for me now is whether or not it is an error such that the decision should be set aside. Standing back and making that assessment I ask myself whether all of that, weighed cumulatively, could possibly have changed the outcome of the s117C(6) assessment.

23. The answer, decisively, is no. The threshold imposed in that final part of the Article 8 analysis is formidably high. The statute provides that an appeal should be allowed where there are “very compelling circumstances over and above” the other exceptions to automatic deportation. The Tribunal had already found that the Appellant fell far short of meeting those exceptions.

24. He could not show that there were very significant obstacles to his integration in Nigeria since he had left that country as an adult, was familiar with the culture and the supposed obstacles he had advanced in his protection claim were rightly found to be fatuous.

25. He could not show that it was unduly harsh for his children to remain here with their mother. Even factoring in the evidence I have summarised above, the reality is that the Appellant only sees his daughters for a few hours twice a fortnight. The Tribunal rightly rejected his claim that he would be unable to speak with them by telephone.

26. What then were the circumstances that might be advanced as compelling? The Appellant had made impressive efforts to further his own education and job prospects; taken at its highest this was in itself a good indication of his rehabilitation. Although falling short of meeting the ‘undue harshness’ test, it could certainly be said that it was in his children’s best interests to continue their relationships with him. The children’s mother is living with HIV infection, and it is conceivable that at some point she may require support and medical intervention, although as I say, there was no medical evidence to that effect, and such a finding would therefore be highly speculative. None of that, even weighed cumulatively, was capable of displacing the public interest in deportation in this case. The Appellant received a significant prison sentence for dealing class A drugs. He had lived unlawfully in this country for almost all of the time that he has lived here, including the period when he established his family life. As the First-tier Tribunal also note, he had advanced a wholly unmeritorious asylum claim as a means to avoid deportation. Having regard to all of that, I am satisfied that the decision of the First-tier Tribunal would not, or should not, have been any different, even if the Tribunal had properly recognised all of the evidence that was before it. It follows that I am not prepared to set its decision aside.

Decisions

27. The appeal is dismissed and the decision of the First-tier Tribunal is upheld.

28. The Appellant is a foreign criminal and ordinarily the principle of open justice would mean that he was named in this decision. I have however decided to impose an order for anonymity because I am concerned that naming the Appellant could lead to the identification of his children and their mother; this decision contains confidential medical information pertaining to that individual, who neither participated in proceedings nor given her consent for the information about her to be made public. For that reason I am satisfied that it would be proportionate and appropriate to make an order preserving the anonymity of the entire family.

Upper Tribunal Judge Bruce
Immigration and Asylum Chamber
22 September 2026