Tribunal decisions

The decision

IN THE UPPER TRIBUNAL
IMMIGRATION AND ASYLUM CHAMBER Case No: UI-2026-002790
First-tier Tribunal No:
HU/00181/2025
EA/00855/2024

THE IMMIGRATION ACTS

Decision & Reasons Issued:

8th of September 2026

Before

DEPUTY UPPER TRIBUNAL JUDGE NEILSON

Between

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Appellant
and

DOMINIC GATT
(Anonymity Order not made)
Respondent

Representation:
For the Appellant: Ms S Lecointe, Senior Home Office Presenting Officer
For the Respondent: Mr R Rai, Counsel instructed by SABZ Solicitors LLP

Heard in person at Field House on 18 August 2026

DECISION AND REASONS
Introduction & Background
1. The appellant is the Secretary of State for the Home Department. The respondent is a citizen of Malta. The appellant appeals with permission granted on 21 May 2026 against the decision of the First-Tier Tribunal (“the FtT”) given on 30 April 2026 (“the FtT Decision”) to allow the respondent’s appeal against deportation.
2. The respondent’s mother and a brother live in Malta. He has a brother and sister living in the UK. The respondent was born in 1965 and moved to the UK in August 1973 and has lived in the UK since then. He married FG on 19 October 1985. They have four children – all now adults and 8 grandchildren. The respondent is in a relationship with another woman, SJ, with whom he has a son, MJ. MJ is now an adult.
3. On 23rd November 2009 the respondent was convicted at Snaresbrook Crown Court of possession with intent to supply and sentenced to 36 weeks imprisonment, suspended for 18 months. On 24th May 2011 the respondent was convicted of possession and given a community order. His previous suspended sentence was extended.
4. Pursuant to an application made on 23rd August 2019 the respondent was granted indefinite leave to remain under the European Union Settlement Scheme on 2nd September 2019.
5. On 26 September 2023 the respondent was convicted of possession with intent to supply at Wood Green Crown Court and on 25th January 2024 he was sentenced to three years imprisonment. He was released on 7th April 2025.
6. On 11th February 2024 the respondent was issued with a notice of intention to deport. On 15th February 2024 the respondent lodged a notice of appeal in respect of this notice of intention to deport (reference EA/00855/2024). In the course of that appeal the respondent raised human rights issues. This led to a supplementary human rights decision being made on 13th January 2025. The respondent filed a notice of appeal on 27th January 2025 that gave rise to appeal reference HU/00181/20205. The appeals have been linked.
7. The linked appeals were heard before the FtT on 24 October 2025. The judge who dealt with the appeal (“the Judge”) issued a decision on 30 April 2026 (“the FtT Decision”). The respondent’s appeal was allowed by the Judge on the basis that there were very compelling circumstances as set out in section 117C(6) of the Nationality Immigration and Asylum Act 2002 (“the 2002 Act”).
8. The appellant appeals against the FtT Decision on the basis of grounds of appeal dated 8 May 2026 (“Grounds of Appeal”).
Grounds of Appeal, Discussion and Conclusions
9. There were two grounds of appeal.
First Ground of Appeal
10. The first ground of appeal is that the delay in promulgating the FtT Decision amounted to an error of law. There was a delay of just over 6 months from the case being heard on 24 October 2025 and the decision being issued on 30 April 2026. In the Grounds of Appeal the appellant submits that this delay impacted the ability of the Judge to fairly determine the issues in the appeal. The appellant further submitted that as the case turned on credibility that the delay was a material factor and relied upon EB Kosovo v Secretary of State for the Home Department 2008 UKHL 41. Mr Rai for the respondent submitted that the delay did not amount to an error of law, the Judge at paragraph 25 of the FtT Decision set out reasons as to why there was no unfairness and Mr Rai referred to the authorities of SS Sri Lanka 2018 EWCA Civ 1391; Demushi 2012 UKUT 80 and RK Algeria 2007 EWCA Civ 868 as cases where quite lengthy delays did not amount to an error of law.
11. As Mr Rai pointed out the Judge does deal with the issue of delay at paragraph 25 of the FtT Decision. The Judge apologises for the delay and states:-
“I have given thought to whether such delay adversely impacts upon my ability fairly to determine the appeal however, in circumstances where I have extensive notes in relation to pre-hearing preparation and the evidence and submissions, and notes I made shortly after the hearing regarding key issues, I am satisfied that the passage of time has not affected my ability fairly to determine this appeal.”
12. EB Kosovo is not a case that deals with delay in the judicial decision making process. Rather it deals with the question of the impact that delay by the Secretary of State might have in processing an asylum application, see in particular the comments of Lord Bingham at paragraphs 13 to 17.
13. In SS Sri Lanka there was a delay of 4 months between the hearing and the FtT decision. In that case credibility was in issue. The Court of Appeal determined that there was no rule that a delay of 3 months or more between the hearing of oral evidence and the date of the FtT decision renders the decision unsafe. The Court of Appeal determined that the correct approach is to ask whether the delay has caused the decision to be unsafe so that it would be unjust to let it stand. The only significance of the fact that delay between the hearing and the decision in an asylum case has exceeded 3 months is that, where the decision is challenged on an appeal, the Upper Tribunal should examine the FtT judge's factual findings with particular care to ensure that the delay has not caused injustice to the appellant.
14. In Demushi the Upper Tribunal held that to establish that a delay in the promulgation of a decision has led to an error of law it has to be shown that the decision was not safe and therefore unlawful. There must be a nexus between the delay and the safety of the decision. In Demushi there was a delay of 11 months between the hearing and the decision being issued and it was found that by itself that delay did not give rise to an error of law.
15. In RK (Algeria) there was a delay of 29 months between the hearing and issue of the decision. The Court of Appeal rejected the submission that a delay of six months or more should result in the case being re-heard. The Court of Appeal determined that a nexus had to be established between the delay and the safety of the determination.
16. It is clear from the authorities that delay by itself, even quite substantial delay beyond the 6 months in this case, will not amount to an error of law. There must be something more. The appellant needs to be able to point to some factor that the delay has caused that would make the decision unsafe. In the present appeal the appellant in the Grounds of Appeal makes reference to the appeal being allowed “following their consideration of evidence that leans heavily on the [respondent’s] credibility, rehabilitation and risk of re-offending”. The appellant offers up no reason as to why any delay has caused a problem. In short there is no nexus. Ms Lecointe was unable to expand further on this at the hearing. The Judge has explained at paragraph 25 why he considers the delay to have had no impact upon his assessment of the evidence. In the absence of any specific concerns raised by the appellant it will not do simply to say that credibility is an issue, there is a delay and therefore the decision is unsafe. I would add that there is not any obvious reason that I can discern from the FtT Decision itself why a delay of 6 months should make the decision unsafe, given the comments made by the Judge at paragraph 25. In particular having regard to credibility the Judge has referred to the notes he took both at the hearing and immediately thereafter and there is nothing to suggest that his assessment of credibility is flawed as a consequence of the delay.
17. The appellant does advance a further reason in the Grounds of Appeal related to delay where it is stated that the evidence of the [respondent’s] rehabilitation “is extremely thin and due to the lapse of time has been rendered stale, so cannot reasonably be relied on to form an opinion of his current circumstances”. The suggestion here is that it would be in the interests of justice to consider further evidence before making any final decision. There will be many cases where following the hearing facts will develop or change. The duty of the Judge is to determine the case based upon the evidence that was placed before the tribunal at the hearing. I do not consider that there is any substance to this supplementary point.
18. For the reasons set out above I dismiss the first ground of appeal.
Second Ground of Appeal
19. The second ground of appeal is that the Judge failed to correctly apply the elevated statutory threshold that is relevant to cases involving the very compelling circumstances test, as per section 117C(6) of the 2002 Act and that the Judge’s reasons for finding this has been made out against the public interest in deportation are inadequate.
20. The appellant submits in the Grounds of Appeal that the Judge failed to follow the guidance in the recent case of Kapikanya -v- Secretary of State for the Home Department [2025] EWCA Civ 987. In the appellant's submission the Court of Appeal in Kapikanya reaffirmed that section 117C(6) of the 2002 Act requires a structured assessment, explicit recognition of the very high threshold and clear reasoning explaining why strong public interest in that case is said to be displaced. The appellant submitted that the Judge's reasoning is contrary to this approach and fails to meet this standard with any adequate reasoning. The appellant further submits that Judge has failed to set out sufficient reasons to explain why the family relationships carried exceptional weight (having found that deportation would not be unduly harsh on any family member and no dependency existed between them). Further the appellant submits that the judge has placed too much reliance on rehabilitation and the probation service evidence.
21. For the respondent Mr Rai submitted that there was no material error as a matter of law and that proper reasons are given in the FtT Decision in a well structured decision having regard to Kapikanya. In particular he submitted that the Judge was fully aware of the relevant law and had followed the guidance in NA (Pakistan) [2016] EWCA Civ 662 which remained good law. He further submitted that the Judge had followed a structured approach in dealing with the Exceptions and that he had looked at all the relevant factors before coming to a reasoned conclusion.
22. The starting point for considering the appeal under this ground is the relevant provisions of the legislation under section 117C of the 2002 Act, which states:-
“117C Article 8: additional considerations in cases involving foreign criminals

(1) The deportation of foreign criminals is in the public interest.
(2) The more serious the offence committed by a foreign criminal, the greater is the public interest in deportation of the criminal.
(3) In the case of a foreign criminal (“C”) who has not been sentenced to a period of imprisonment of four years or more, the public interest requires C’s deportation unless Exception 1 or Exception 2 applies.
(4) Exception 1 applies where-
(a) C has been lawfully resident in the United Kingdom for most of C's life,
(b) C is socially and culturally integrated in the United Kingdom, and
(c) there would be very significant obstacles to C’s integration into the country to which C is proposed to be deported.
(5) Exception 2 applies where C has a genuine and subsisting relationship with a qualifying partner, or a genuine and subsisting parental relationship with a qualifying child, and the effect of C’s deportation on the partner or child would be unduly harsh.
(6) In the case of a foreign criminal who has been sentenced to a period of imprisonment of at least four years, the public interest requires deportation unless there are very compelling circumstances, over and above those described in Exceptions 1 and 2.
(7) The considerations in subsections (1) to (6) are to be taken into account where a court or tribunal is considering a decision to deport a foreign criminal only to the extent that the reason for the decision was the offence or offences for which the criminal has been convicted.”
23. The challenge with section 117C of the 2002 Act (as identified by LJ Underhill in Yalcin -v- SSHD [2024] EWCA Civ 74) is that it is not well drafted. The original intention would appear to have been that a medium offender would be able to rely upon Exception 1 or Exception 2 in respect of their Private Life or Family Life case respectively under Article 8. Exceptions 1 and 2 were not open to a serious offender (a person with 4 years or more as a sentence) and thus the only grounds upon which a serious offender could pursue an Article 8 claim was 117C(6) if they could show very compelling circumstances, over and above those described in Exceptions 1 and 2.
24. Following the Court of Appeal decision in NA (Pakistan) section 117C(3) of the 2002 Act must be read as applying to medium offenders as well as serious offenders so that for medium offenders the public interest requires deportation unless Exception 1 or Exception 2 applies, or unless there are very compelling circumstances over and above those described in Exceptions 1 and 2. Unfortunately that does lead to come confusion over the exact relationship between sections 117C(3) and 117C(6) of the 2002 Act.
25. It was not disputed that in the present case that the respondent is what would be termed a medium offender as he has been sentenced to a period of less than 4 years.
26. The Judge in the FtT Decision relied upon paragraph 32 and 36 of the Court of Appeal decision in NA (Pakistan) in considering the correct approach to be taken to section 117C(6) of the 2002 Act for a medium offender. LJ Jackson at paragraph 32 in NA (Pakistan) states:-
“Similarly, in the case of a medium offender, if all he could advance in support of his Article 8 claim was a “near miss” case in which he fell short of bringing himself within either Exception 1 or Exception 2, it would not be possible to say that he had shown that there were “very compelling circumstances, over and above those described in Exceptions 1 and 2”. He would need to have a far stronger case than that by reference to the interests protected by Article 8 to bring himself within that fall back protection. But again, in principle there may be cases in which such an offender can say that features of his case of a kind described in Exceptions 1 and 2 have such great force for Article 8 purposes that they do constitute such very compelling circumstances, whether taken by themselves or in conjunction with other factors relevant to Article 8 but not falling within the factors described in Exceptions 1 and 2. The decision maker, be it the Secretary of State or a tribunal, must look at all the matters relied upon collectively, in order to determine whether they are sufficiently compelling to outweigh the high public interest in deportation.”
At paragraph 36 LJ Jackson states:-
“In relation to a medium offender, first see whether he falls within Exception 1 or Exception 2. If he does, then the Article 8 claim succeeds. If he does not, then the next stage is to consider whether there are “sufficiently compelling circumstances, over and above those described in Exceptions 1 and 2”. If there are, then the Article 8 claim succeeds. If there are not, then the Article 8 claim fails. As was the case under the 2012 rules (as explained in MF (Nigeria) ), there is no room for a general Article 8 evaluation outside the 2014 rules, read with sections 117A-117D of the 2002 Act.”
27. NA (Pakistan) was considered further by the Court of Appeal in both Yalcin and in Kapikanya. In Yalcin at paragraph 57 LJ Underhill commented on NA (Pakistan) as follows:-
“NA (Pakistan) thus establishes that the effect of the over-and-above requirement is that, in a case where the “very compelling circumstances” on which a claimant relies under section 117C (6) include an Exception-specified circumstance (“an Exception-overlap case”), it is necessary that there be something substantially more than the minimum that would be necessary to qualify for the relevant Exception under subsection (4) or (5): as Jackson LJ puts it at para. 29, the article 8 case must be “especially strong”. That higher threshold may be reached either because the circumstance in question is present to a degree which is “well beyond” what would be sufficient to establish a “bare case”, or – as shown by the phrases which I have italicised in paras. 29 and 30 – because it is complemented by other relevant circumstances, or because of a combination of both. I will refer to those considerations, of whichever kind, as “something more”. To take a concrete example, if the Exception-related circumstance is the impact of the claimant’s deportation on a child (Exception 2) the something more will have to be either that the undue harshness would be of an elevated degree (“unduly unduly harsh”?) or that it was complemented by another factor or factors – perhaps very long residence in this country (even if Exception 1 is not satisfied) – to a sufficient extent to meet the higher threshold; or, as I have said, a combination of the two.”
In a footnote to that paragraph LJ Underhill recognised that not every case under 117C(6) will be an Exception-overlap case. He commented that in those situations it is difficult to see what function the words “over and above those described in Exceptions 1 and 2” have.
28. In all three cases (NA (Pakistan), Yalcin and Kapikanya) the Court of Appeal has dealt with the issue of what is meant by the phrase “very compelling circumstances, over and above those described in Exceptions 1 and 2” as set out in section 117C(6) of the 2002 Act. Having considered the earlier cases of NA (Pakistan) and Yalcin LJ Bean at paragraph 43 in Kapikanya summarises the position as follows:-
“The judgement of Underhill LJ in Yalcin demonstrates that in order to satisfy section 117(C)6 something more is required than under Exception 1 or Exception 2. Underhill LJ envisages two types of case. The first is where deportation would have what in a convenient shorthand phrase he describes as an “unduly unduly harsh effect” on a qualified child or partner. The second is where the appellant can point to the combination of an unduly harsh effect on a qualifying child or partner and some other factor amounting to very compelling circumstances. Underhill LJ emphasises that a serious offender will have to surmount a higher threshold than a medium offender.”
29. Both Yalcin and Kapikanya were dealing with cases where the Exception specified circumstances related to Exception 2 (Family Life). It is of course possible that the Exception specified circumstances might relate to Exception 1 (Private Life) as LJ Underhill recognised in paragraph 57 in Yalcin. In my view it is clear from these authorities that where a person relies upon an Exception specified circumstance it is necessary to show either that the Exception specified circumstance goes well beyond what would be sufficient to establish a bare case under the Exception OR if it does not go beyond it is complemented by other relevant circumstances. It is also possible for a person to rely upon circumstances that do not include an Exception specified circumstance. Where one is dealing with a medium offender rather than a serious offender it would seem that in most instances the issue is likely to be a consideration of other circumstances since section 117C(6) only comes in to play if the person has failed to meet Exception 1 or 2. In considering the test to be applied I agree with Mr Rai that NA (Pakistan) remains good law and that Yalcin and Kapikanya whilst seeking to add some further clarification do not change the position as set out in NA (Pakistan).
30. I turn to consider the FtT Decision. Firstly, does the Judge fail to apply the correct statutory test? At paragraph 17 he sets out the directions of First-tier Tribunal Judge Seelhoff which clearly sets out the issues as being the application of section 117C of the 2002 Act and specifically whether Exception 1 or Exception 2 applies (although Exception 2 is related only to his wife or claimed long term partner as all his children are over 18) and finally whether section 117C(6) of the 2002 Act applies (very compelling circumstances). In the FtT Decision the Judge at paragraph 26 to 32 deals with the Commonwealth exception which it is conceded does not apply as the respondent arrived in the UK after 1 January 1973. At paragraphs 33 to 37 he deals with the period of residence and finds that the respondent has been lawfully in the UK since August 1973. From paragraphs 38 to 56 he sets out his findings in relation to the respondent’s family and private life. From paragraph 57 to 62 he sets out his findings in relation to Offending and risk. At paragraphs 63 to 78 he sets out his Analysis.
31. In the Analysis the Judge deals firstly with Exception 1 and finds that is not established as he does not accept that the respondent would face very significant obstacles to integration in Malta. He then deals with Exception 2 and finds that the respondent does not have a genuine and subsisting relationship with a qualifying partner. He then goes on to deal with the position of his son but finds that deportation would not have an unduly harsh effect on his son (although his comments here are not directly relevant as his son is an adult at this point and thus does not qualify). Having considered Exception 1 and Exception 2 the Judge goes on to consider the test under section 117C(6) and makes specific reference to NA (Pakistan). At paragraph 76 the Judge sets out his rationale for finding that the test under section 117C(6) is met. He states:-
“In my judgement the particular matters that constitute ‘compelling circumstances’ within the contemplation of section 117C(6) of a combination of: the length of time spent in the UK, socially and culturally integrated, both as an absolute figure and as a proportion of the Appellant’s overall lifetime; the extensive family connections established during that period and the continuing close interaction with the Gatts (including his ex-wife, as well as his children and grandchildren), and the Journeaux. Whilst the Appellant’s criminal offending is serious, and the nature of the offending is damaging to wider society, there is some reassurance in the fact that the Appellant has been characterised as of low risk of reoffending. I also accept that he has demonstrated genuine contrition, and is seeking with all good endeavours to rehabilitate himself including through new employment.”
32. Finally at paragraph 77 he concludes as follows:-
“Looking at all matters in the round, I am satisfied that the circumstances are sufficiently compelling to render deportation disproportionate, notwithstanding the general principle that the deportation of foreign criminals is in the public interest.”
33. In coming to this decision I am satisfied that the Judge took a structured approach. It was suggested that he did not apply the correct legal test. I do not accept that. He had regard to the specific terms of section 117C of the 2002 Act and to NA (Pakistan). It was further suggested that he did not place sufficient weight on the principle that deportation of foreign criminals is in the public interest. I do not accept that as the Judge specifically refers to the public interest in paragraph 77 and section 117C of the 2002 Act is clearly identified as the relevant legislation in the issues from Judge Seelhoff and it would be fair to assume that the Judge would be familiar with section 117C(1) which clearly states that “The deportation of foreign criminals is in the public interest”.
34. Mr Rai confirmed that the respondent’s case was a Private Life case. It was not a case that proceeded on Family Life. It is not disputed that Exception 2 cannot be met. However in light of NA (Pakistan) it is open to the Judge to find that although he has not met Exception 1 he has a very strong case under that Exception along with the addition of other factors. The other factors that the Judge relies upon are (1) length of time in the UK; (2) socially and culturally integrated (both the length of time and the integration being points that fall under Exception 1 as well); (3) extensive family connections; (4) low risk of re-offending and (5) contrition/rehabilitation.
35. Although the reasoning at paragraph 76 is short the Judge does refer back to the more detailed factual analysis set out in previous paragraphs (see paragraph 63 – “The matters set out above are taken forward into analysis of the Appellant’s case…”).
36. Specifically, as regards time in the UK the Judge finds that the appellant has been lawfully in the UK since August 1973 – since he was 8 years of age (he is now 61). He is socially and culturally integrated in the UK – see paragraph 65 with reference to his schooling, his work, his marriage, his family, his second relationship, his children and his grandchildren). The extensive family connections are covered in more detail at paragraphs 38 to 56 and specifically at 51 where the Judge states:-
“Be that as it may, and standing back for a moment from any choices made in respect of presentation of his case, underlying all of this is, I find, genuine, significant, and ongoing relationships with both the Gatts and the Journeaux, which are of the utmost importance to the [respondent’s] life and sense of identity; They mark out who he is as a person, and where he fits in wider society.”
On the risk of re-offending and rehabilitation the Judge set out detailed findings at paragraphs 57 to 62 to support his finding that there was a low risk of re-offending and that his conduct since his release is essentially positive.
37. There was criticism made in the Grounds of Appeal (at paragraphs 3, 4 and 5) of the evidence relied upon by the Judge. I do consider that ultimately it is for the Judge to assess the evidence and determine what weight he places upon it.
38. In considering this appeal I take into account the principles set out in Ullah v Secretary of State for the Home Department [2024] EWCA Civ 201, at [26]:- (i) the Upper Tribunal should not rush to find an error of law simply because it might have reached a different conclusion on the facts or expressed themselves differently; (ii) where a relevant point was not expressly mentioned by the First-Tier Tribunal, the Upper Tribunal should be slow to infer that it had not been taken into account; (iii) when it comes to the reasons given by the First-Tier Tribunal, the Upper Tribunal should exercise judicial restraint and not assume that the First-Tier Tribunal misdirected itself just because not every step in its reasoning was fully set out; and (iv) it is of the nature of assessment that different tribunals, without illegality or irrationality, may reach different conclusions on the same case.
39. In particular, I accept that a different tribunal may well have reached a different conclusion based upon the facts of this particular case. That is not the issue here. There is no perversity challenge by the appellant. The issue is whether there has been an error of law. I do not consider that there has been. The Judge applied the test as set out in section 117C of the 2002 Act in a structured approach and having regard to the approach as set out in NA (Pakistan). I do not consider that there has been any error of law in the approach taken by the Judge and I accordingly dismiss this ground of appeal.
Conclusion
40. For the reasons set out above I find that there is no material error of law and the appeal is dismissed.
Notice of Decision
The decision of the FtT did not involve the making of a material error on a point of law and the appeal is accordingly dismissed.

S NEILSON
Deputy Judge of the Upper Tribunal
Immigration and Asylum Chamber
3 September 2026