Tribunal decisions

The decision

IN THE UPPER TRIBUNAL
IMMIGRATION AND ASYLUM
CHAMBER Case No: UI-2026-003208
First-tier Tribunal Nos: HU/54190/2025

THE IMMIGRATION ACTS

Decision & Reasons Issued:

14th October 2026

Before

UPPER TRIBUNAL JUDGE GREY

Between

NDUE PALUCA
Appellant
and

SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent
Representation
For the Appellant: Mr D. Simpson, Senior Home Office Presenting Officer
For the Respondent: Ms K. Tobin, Counsel instructed by Malik and Malik Solicitors

Heard at Field House on 22 September 2026
Decision and Reasons
Introduction
1. This is an appeal brought by the appellant against the decision of a First-tier Tribunal (“FtT”) Judge (the “Judge”) promulgated on 22 March 2026, in which he dismissed the appellant’s appeal against the respondent’s refusal of his human rights claim made in response to the decision to make a deportation order against him.
2. The appellant is a citizen of Albania. He arrived in the United Kingdom, without leave, in 2012. On 29 October 2021 the appellant was sentenced to 10 months’ imprisonment for his part in a conspiracy to supply cannabis, following which he became subject to a deportation order and his human rights submissions made on 3 October 2023 were refused on 4 March 2025. The appellant appealed the respondent’s refusal of his human rights submissions to the FtT. The FtT dismissed his appeal.
The Decision of the FtT
3. At [8] of the decision the Judge identified the issues in dispute between the parties as follows:
(1) Whether the appellant is a “foreign criminal”;
(2) Whether the exceptions to deportation are met;
(3) Whether there are very compelling circumstances; and
(4) Whether, if the appellant is not a foreign criminal, Article 8 is engaged and whether it would be proportionate to remove the appellant.
4. In relation to the first issue, at [16] the Judge recorded the submissions made on behalf of the appellant. The appellant’s representative relied on R (Mahmood) v SSHD [2020] EWCA Civ 717, and submitted that the appellant had been charged with a conspiracy, and that all criminal property had been confiscated and destroyed. It was submitted that there was therefore no serious harm caused and no group of individuals had suffered. Consequently, it was submitted that as no serious harm was caused, the appellant could not be considered to be a “foreign criminal” for the purposes of section 117D of the Nationality, Immigration and Asylum Act 2002 (“NIAA”).
5. The Judge referred to the sentencing remarks in relation to the appellant and that the sentencing judge found the appellant to have taken a “lesser role” in the conspiracy and was a “category two offender”. The Judge noted the comment that a feature of a conspiracy of this sort is that it generates satellite crime, and that there had been frauds to obtain cars, open bank accounts, and obtain leases. The Judge stated that the appellant was a gardener for two addresses (although the sentencing remarks refer to just one address in relation to the appellant - “4 Victoria”, HB/627). In determining the issue of whether the appellant was a foreign criminal the decision states at [22]:
Having considered the cited case law and whether serious harm was caused. I find the appellant was involved in a conspiracy which obtained properties, obtained cars, leases and bank accounts. Whilst the appellant may not have done these activities himself, he was charged as part of the conspiracy. He was a gardener at two separate properties. He undertook this word (sic) in the expectation of significant financial reward. The serious harm caused by drugs and their wider impact on society is well known. I do not find that he was charged as part of a conspiracy means there was no serious harm. Obtaining properties to grown (sic) drugs and all of the other illegal activity undertaken to set up the conspiracy on the specific facts of the case and as referenced n (sic) the sentencing remarks caused harm. For the above reasons I therefore find that the appellant is a foreign criminal.
6. In relation to the private life Exception to deportation, the Judge records at [23] that it was accepted that the appellant had not spent most of his life lawfully in the UK. The Judge found that there was little evidence of the appellant’s social and cultural integration in the UK and he did not accept that the appellant would face very significant obstacles to integration upon return to Albania.
7. At [28] to [32] the Judge addresses the family life Exception to deportation and whether it would be unduly harsh for the appellant’s Lithuanian partner and two young children to either travel to Albania with the appellant or for them to remain in the United Kingdom without the appellant.
8. The Judge accepted that the appellant and his partner are in a genuine and subsisting relationship but did not accept that it would not be unduly harsh either for the partner to live in Albania with the appellant or to elect to stay in the United Kingdom should the appellant be deported.
9. In relation to the appellant’s children, the Judge found that there was no doubt the eldest child has significant health needs but found that there were services available for these in Albania. At [32] the Judge notes that the children were still very young, being aged one and three years old at the time. He noted aspects of the Independent Social Worker’s (“ISW”) report but found that:
Even considering the children’s best interest as a primary/ paramount consideration. (sic) I find the children living in Albania does not reach the unduly harsh threshold. In the alternative and in balancing their relatively young ages and the likely upset should the appellant be removed from them I find that whilst there will be distress the threshold of unduly harsh is again not met. They would be in the United Kingdom, with their mother and receiving the support they are entitled to from the state. I therefore find that the appellant cannot meet either the partner or child exception to deportation.
10. At [33] the Judge addresses the issue of very compelling circumstances. Hereafter the numbering in the decision goes astray and the subsequent paragraphs are numbered [16] to [23]. At [18] the Judge concludes that considering all factors, the length of time the appellant has been United Kingdom, the relationship he has with his partner and children, in particular his daughter’s health needs, that he was unable to find that there are “very compelling circumstances” which would merit outweighing the public interest in deportation and allowing the appeal on Article 8 grounds.
11. At [19] to [22] the Judge conducts an Article 8 assessment in the event that the appellant is not a “foreign criminal”. The decision records at [20] the following matters that weighed in the appellant's favour in the balancing exercise: he arrived in the UK in 2012, he is in a genuine and subsisting relationship with someone who has settled status, he has two daughters in the United Kingdom, one of whom is British, and one child has significant health needs and is receiving appropriate treatment. Weighing against the appellant, at [21] the decision states:
On the other side of the balance would be that the appellant has arrived unlawfully and has never held lawful leave. He has engaged in criminal activity for which he received a 10 month sentence of imprisonment. He has made repeated applications, his asylum claim was withdrawn and for the reasons given above I find the application of 2015 to have been made on fraudulent grounds. His relationship was entered into and his children born in the face of a Deportation Order. His offence related to drugs and there is clear public interest in removing those involved in the intended supply or production of drugs.
12. The Judge concludes at [22] that he would dismiss the appellant’s appeal on Article 8 grounds on this alternative basis and stated that there was no reason why the appellant could not return to Albania and seek entry clearance to be reunited with his family in the UK. The Judge states that that he does not find the health needs of the daughter to be an exceptional circumstance such that refusal of the appellant’s human rights claim would amount to an unduly harsh consequence
The Appeal to the Upper Tribunal
13. The appellant challenges the FtT decision on the basis that the Judge erred in finding that the appellant was a “foreign criminal” pursuant to section 117D(2) NIAA; failed to apply section 117B NIAA; failed to conduct a lawful best interests’ assessment in relation to the appellant’s children; and, failed to properly consider material factors in the Article 8 ECHR proportionality assessment.
14. Permission to appeal was granted by Upper Tribunal Judge Khan on 2 July 2026 on all grounds in the following terms:
3. The principal ground (which relates to the other grounds) submits that the FTTJ erred in applying the ‘serious harm’ test in R (Mahmood) v SSHD [2020] EWCA Civ 717 which establishes that the ‘serious harm’ must be causatively linked to the individual offence.
4. Having reviewed the decision at paragraphs [19]-[22], although the FTTJ correctly cites the relevant caselaw, it is arguable that the FTTJ made an error of law in the application of the ‘serious harm’ test by finding that the appellant was a ‘foreign criminal’ despite the fact that the conspiracy was interrupted and the cannabis confiscated. The test also holds that in determining ‘serious harm’ it does not include the potential for harm or the intention to do harm which does not appear to have been considered by the FTTJ.
The Hearing Before Me
15. Mr Tobin addressed me on both the grounds submitted in the FtT and the grounds submitted to the Upper Tribunal. Mr Simpson responded to the submissions relying on the respondent’s Rule 24 response dated 13 July 2026. I do not rehearse the submissions made in detail except insofar as necessary in my reasoning below. In summary, the respondent’s position is that the Judge did not err in finding the appellant to be a foreign criminal and that in the event the Judge had erred in this regard, any error would not be material because the Judge expressly proceeded to conduct a comprehensive alternative Article 8 assessment on the assumption that the Appellant was not a foreign criminal and concluded that the appeal would nevertheless fall to be dismissed. In respect of the failure to address section 117B(6) NIAA, the respondent submits that the decision addresses the substance of the relevant considerations notwithstanding the absence of an express reference to this section. At the end of the hearing, I indicated that I would reserve my decision which I now give together with my reasons.
Analysis and Decision
16. I have in mind throughout the need to exercise judicial restraint before interfering with a decision of the FtT. It is now well established that the Upper Tribunal (“UT”) is not entitled to find an error of law simply because it does not agree with the decision, or because the Tribunal thinks the decision could be more clearly expressed or another judge could come to a different decision. Baroness Hale put it in this way in AH (Sudan) v SSHD [2007] UKHL 49 [2008] 1 AC 678), at [30]:
Appellate courts should not rush to find such misdirection simply because they might have reached a different conclusion on the facts or expressed themselves differently.
17. 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].
18. 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].
19. 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].
20. It is of the nature of proportionality assessments 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].
Ground 1
21. The appellant asserts that the Judge materially erred in finding that the appellant is a “foreign criminal” for the purpose of section 117D(2) NIAA and failed to apply the guidance from Mahmood v SSHD [2020] EWCA Civ 717, in particular in respect of the question of causation of serious harm. In Mahmood the Court of Appeal held at [39] that “So far as the word ‘caused’ is concerned, the harm must plainly be causatively linked to the offence” and that “what matters is the harm caused by the particular offence”.
22. It was recognised at [41] of Mahmood that “Some crimes, for example, supplying class A drugs, money laundering, possession of firearms, cybercrimes, perjury and perverting the course of public justice may cause societal harm. In most cases the nature of the harm will be apparent from the nature of the offence itself, the sentencing remarks or from victim statements.” This reasoning was adopted in part by the Judge in determining that the appellant’s offence had caused serious harm where at [22] of the decision the Judge states that “The serious harm caused by drugs and their wider impact on society is well known.”. However, I note that the reference to societal harm identified by the Court of Appeal was in respect of “supplying class A drugs”. In relation to the offence of supplying drugs, it can reasonably be assumed that the offence would cause harm to individuals, even if not identifiable, because the offence would have led to drugs being circulated within society. The offence of conspiracy requires the agreement between two or more people as to a criminal course of conduct. It is one of the offences referred to as “inchoate offences” which involve conduct which falls short of committing a complete offence. In relation to the appellant’s offending, it would appear that no controlled drugs were supplied to member of society or circulated within society.
23. The key question is therefore whether an inchoate offence is capable of being one which can be said to have caused serious harm for the purposes of section 117D(2)(c)(ii) NIAA. The representatives nor I are aware of any direct authority on this point. Although the Court of Appeal did not directly address the question of inchoate offences in Mahmood, presumably because the three offenders in those proceedings had all been convicted of complete offences, the final sentence of [41] gives reason to consider that it may have been in the mind of the Court of Appeal. Having held that harm does not include the potential to do harm or intention to do so, the judgment states “Where there is a conviction for a serious attempt offence, it is likely that the sentence will be more than 12 months.” In my view. this would appear to indicate that the Court of Appeal was alive to the fact it may not be possible for an inchoate offence, such as a criminal attempt or conspiracy, to satisfy the serious harm test in light of the requirement to establish a causative link between the offence for which the appellant was convicted and identifiable harm. However, it appears that the Court was of the view that this was unlikely to be an issue in deportation proceedings since the sentence of more than 12 months for a serious attempt offence would instead be sufficient for the offender to be a “foreign criminal” under section 117D(2)(c)(i).
24. In the absence of a conclusive authority on this issue, I cannot entirely rule out the potential for an offender convicted of an inchoate offence being held to be a foreign criminal on the basis of having been convicted of an offence which has caused serious harm. However, I am persuaded that more was required by the Judge to explain on what basis he reached his conclusion on this issue in light of the test set out in Mahmood and the submissions made of the appellant’s behalf.
25. The Judge’s reasoning referred to the fact the sentencing Judge noted that “A feature of a conspiracy of this sort is that it generates satellite crime, and there were frauds to obtain cars, open bank accounts, and obtain leases.” The Judge refers to the harm caused by drugs offences following Mahmood at [41], which expressly refers to the societal harm caused by the offence of supplying class drugs. However, in relation to the appellant, the conspiracy was interrupted and all material and drugs associated with the operation were confiscated. The operation was not sufficiently advanced for the appellant and his co-defendants to be charged with a complete offence under the Misuse of Drugs Act 1971, such as cultivation, production, possession with intent to supply or supply.
26. It is not, I find, possible to adequately discern from the Judge’s reasoning what specific harm was caused by the offence of conspiracy in this case in view of the fact no drugs would have been circulated within society as a result of the operation. The wording of section 117D(2)(c)(ii) refers to the offender having been “convicted of an offence that has caused serious harm”. The only offence of which the appellant was convicted was conspiracy. The Judge refers to satellite offences associated with the conspiracy. He acknowledges that the appellant may not have done these activities himself but uses the fact of these satellite offences as part of the reasoning for finding the serious harm test was satisfied. The difficulty I find with this reasoning is that, having regard to the wording of section 117D(2)(c)(ii), these were not offences for which the appellant had been convicted. Moreover, there is no evidence that the appellant himself was involved in these aspects of the operation. The appellant’s involvement, according to the sentencing remarks was as a gardener at just one property (not two as stated by the Judge).
27. For these reasons I find that the Judge erred in finding that the appellant was a foreign criminal by failing to provide legally adequate reasoning to explain how the appellant met the test set out in Mahmood. In view of my findings below in relation to the Judge’s Article 8 assessment, I find that the error is undoubtedly a material one. If the appellant is not a foreign criminal, the appellant’s appeal would fall to be determined without the application of the provisions of section 117C. For the reasons set out below I find that the Judge’s proportionality assessment was insufficient in light of the appellant’s circumstances and the evidence before the FtT.
Grounds 2, 3 and 4
28. The remaining grounds address the Judge’s Article 8 assessment. It is asserted that the Judge failed to apply section 117B(6) NIAA in his alternative assessment of Article 8 in the event the appellant is not a foreign criminal; that the Judge failed to determine what the best interests of the children are and failed to adequately address the best interests in the proportionality assessment with reference to the ISW report; and failed to consider other material matters in the proportionality assessment.
29. Although at [32] of the decision the Judge refers to the best interests of the appellant’s children as a “primary/paramount consideration” there are no express findings of what the best interests of the children are. I accept the appellant’s submission that the Judge erred in his assessment of the best interests of the children particularly in light of various matters contained in the ISW report and the acceptance of the significant health issues of the eldest child. I also find there is some weight to the submissions on behalf of the appellant that the Judge’s proportionality assessment was somewhat cursory. I am persuaded that the Judge failed to meaningfully engage with the evidence of the ISW and failed to adequately assess the impact on the appellant’s family of his removal to Albania by taking into account, amongst other things, the fact the appellant is the primary carer for his children.
30. The youngest child, a British citizen, is also a “qualifying child” for the purposes of section 117D(1). However, there is no application of section 117B(6) in respect of this child, or reasoning to explain why it was not considered if the Judge was of the view that this section did not apply in the circumstances. The findings in respect of whether deportation would be “unduly harsh” on the appellant’s children cannot provide an adequate substitute for an assessment of the provisions of section 117B(6) given the lower threshold provided by this provision. For this reason, I am unable to accept the respondent’s submission that the Judge effectively addressed the substance of this provision despite his failure to make express reference to it.
31. In view of my findings in relation to errors made in the Article 8 proportionality assessment, I find that the error of law under ground 1 was undoubtedly a material one.
32. It follows from what I have said that that the appellant’s appeal is allowed. The decision is set aside in its entirety with no findings preserved. Fortified by the position of both representatives, I am not satisfied that the appropriate course for onward disposal is for the appeal to be remitted to the FtT for a de novo hearing before another FtT Judge.
Notice of Decision
The appellant’s appeal is allowed.

The decision of the First-tier Tribunal involved the making of a material error of law and is set aside. The appeal will be remitted to the FtT for a de novo hearing before another judge.

S. Grey

Judge of the Upper Tribunal
Immigration and Asylum Chamber

11 October 2026