United Kingdom Immigration and Asylum (AIT/IAC) Unreported Judgments

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IN THE UPPER TRIBUNAL IMMIGRATION AND ASYLUM CHAMBER	Case No: UI-2024-005350
	First-tier Tribunal No: HU/00778/2024

 

THE IMMIGRATION ACTS

Decision & Reasons Issued:

On 4 ^th of April 2025

 

Before

 

UPPER TRIBUNAL JUDGE REEDS

 

Between

 

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT

Appellant

and

 

H B

(ANONYMITY ORDER continued)

Respondent

Representation :

For the Appellant: Ms Young, Senior Presenting Officer

For the Respondent: Mr Flarty, Counsel instructed on behalf of the respondent

 

Heard at IAC on 19 February 2025

 

DECISION AND REASONS

1.        The Secretary of State appeals with permission against the decision of the First-tier Tribunal (hereinafter referred to as the "FtTJ") who allowed the appeal against the decision made to refuse his protection and human rights claim made in the context of his deportation in a decision promulgated on 20 October 2024.

2.        The FtTJ made an anonymity order. As to whether the order should continue, in their submissions both advocates referred to the particular circumstances of the children involved. Ms Young on behalf of the Secretary of State did not oppose the anonymity order continuing in light of the particular factual circumstances involving the interests of minors, one of whom had a serious medical condition.

3.        Although the appellant in these proceedings is the Secretary of State, for convenience I will refer to the Secretary of State for the Home Department as the respondent and to the appellant before the FtT as "the appellant," thus reflecting their positions before the First-tier Tribunal.

The background:

4.        The background to the appeal is set out in the evidence and in the decision of the FtTJ. The appellant is a national of the Democratic Republic of Congo ("DRC"). He arrived in the UK on the 27 September 1999 aged 7 years. He was granted discretionary leave on 4 April 2005 and indefinite leave to remain ("ILR") on 18 August 2005. Between 5 December and 8 December 2011,the appellant received a total of 7 convictions for 16 offences.

5.        On 18 June 2013, a deportation order was made against the appellant. However the appellant's appeal against the refusal of his human rights claim based on his family life was allowed by the FtT (Judge Kelly) and was upheld on appeal by the Upper Tribunal (Deputy UTJ McGinty) in a decision promulgated on 18 April 2016. As a result of the decision, the appellant was granted discretionary leave to remain on 8 November 2016 which was subsequently extended.

6.        On 29 November 2023 at the Crown Court, the appellant was convicted of possession of a controlled drugs with intent to supply class A drugs and was sentenced to 38 months imprisonment. As a result of his offending, on the 18 December 2023 the respondent issued a notice of intention to deport the appellant. On 19 January 2024 the appellant wrote in response, making a human rights claim. On the 22 March 2024, the Respondent refused the human rights claim made.

7.        The appellant appealed the decision which came before the FtTJ and in his decision he allowed the appeal on human rights grounds. The appeal was allowed on the basis of Exception 2 having found that the appellant had a genuine subsisting parental relationship with the children and that the effect of his deportation on his children and his partner would be unduly harsh. The reasoning given by the FTT J for that decision will be set out in due course.

The appeal before the Upper Tribunal:

8.        On 11 November 2024, FtTJ Lester granted permission to appeal the decision of the FtTJ as follows: "The grounds state that the judge erred in that they: (1) misdirection in law - Devaseelan. (2) misdirection in law - s.117C(5) unduly harsh. 3. The respondent has raised an arguable point of law about both Devaseelan and unduly harsh. Permission is granted."

9.        At the hearing Ms Young, Senior Presenting Officer appeared on behalf of the Secretary of State and Mr Flarty of Counsel appeared on behalf of the appellant

10.    In her submissions, Ms Young stated that she relied upon the written grounds which she supplemented with her oral submissions. Mr Flarty relied upon the Rule 24 written response dated 19 December 2024. The relevant paragraphs are from paragraphs 4-12, and he also provide his oral submissions in response to those of Ms Young.

11.    Dealing with ground 1 is submitted that whilst the FtTJ has set out the headnote of Home Department v BK (Afghanistan) [2019] EWCA Civ 1358 at [47] of the decision it is submitted that the FtTJ has then failed to adhere to headnote 4: (4) Facts personal to the appellant that were not brought to the attention of the first adjudicator, although they were relevant to the issues before him, should be treated by the second adjudicator with the greatest circumspection. The FtTJ has then considered "written evidence from more objective sources" at [53] of the decision and has clearly found "These letters were professional and balanced, and I place weight upon them." The grounds identify a letter from a Regional Specialist Social Worker) dated 29 September 2015"and the FtTJ has not established whether this same evidence was considered by FtTJ Kelly in the hearing on 12 November 2015 nor whether this evidence was available to or considered by Upper-tier Tribunal Judge McGinty when remaking the decision in the hearing on 23 March 2016 (promulgated 18 April 2016).

12.    It is argued on behalf of the respondent that it clear the evidence now brought to the attention of FtTJ would have been available at both previous hearings and, as such, the FtTJ should have treated such evidence "with the greatest circumspection" in accordance with the established principles of Home Department v BK (Afghanistan) ( as cited). The FtTJ has fallen into error by placing weight on such evidence without establishing why it was not previously submitted before either of the adjudicators hearing the previous appeal.

13.    The Respondent further submits the FtTJ has not provided adequate reasons for affording this evidence weight as the letter is now over 8 years old. It is submitted this letter is of very limited assistance to the appellant. In her oral submissions, Ms Young referred to paragraph 15 of the grounds which related to the letter of the (specialist social worker) dated 29/9/2015 which the FtTJ considered briefly at paragraph 53. The FtTJ also referred to a letter from ( haemophilia) dated 15 January 2024. The FtTJ recorded "these letters were professional and balanced, and I place weight upon them". Whilst weight is a matter for the judge Ms Young submitted there had to be adequate reasoning provided so that the reader understood why the FtTJ had given a piece of evidence the weight that it has been given. The FtTJ had failed to do so in the relation to the document.

14.    She submitted the document referred to at paragraph 53 (page 64 CEF) dated 29 September 2015 predated UTJ McGinty's decision. Whilst it is submitted and the rule 24 response (paragraph 7) that it is highly likely that this letter was before the Tribunal in the light of the decision allowing the appeal is promulgated on 30 November 2015, Ms Young submitted that this was speculation as to what was before the previous panel and the FtTJ did not address this issue at all.

15.    Furthermore significant time had passed since that letter had been written in September 2015 when looking at the date of the hearing of 20 October 2024. The FtTJ appreciated the point acknowledging the previous decision of the tribunal as "the starting point", by stating "I am conscious the previous decision is now over 8 years old and that various events that occurred since. Furthermore, relevant factors may have changed or developed over such a period." Ms Young submitted that this point also applied to the letter of 2015 and the passage of time and the change of position.

16.    Ms Young returned to the rule 24 response (paragraph 7) which had referred to the medical evidence concerning the child's condition. However she submitted the point made by the respondent is that the letter of 2015 does not just touch on the child's medical position but the support that the appellant provided to his spouse which referred to there being no other support network but the appellant. However that is incorrect from the evidence. The appellant's partner has family and friends who support her and have done so whilst he was in prison. Ms Young submitted that the judge had to engage with the contents of the letter and to engage fully with that letter in order to place weight upon it ( see headnote 4 of Devaseelan which arguably applied when considering this piece of evidence ( see paragraph 47 of FtTJ's decision).

17.    Ms Young submitted that the grounds also touched on the letter dated 17/6/24( p107 Cef). Part of that letter is written from the view of a social worker rather than just a friend. The FtTJ does not specifically refer to it. Whilst the judge is not required to refer to every piece of evidence, but it is one at paragraph 52 which could be argued in the context "there were various letters and character type preferences of individuals who did not attend to give oral evidence..." However the FtTJ does not make any finding as to the weight attached to this evidence. Thus she submitted there needed to be adequate reasoning as to why the unduly harsh test was met on the evidence.

18.    In respect of ground 1, Mr Flarty relied upon the Rule 24 response . It submitted that the SSHD's first ground is extremely broad, referring both to a lack of adequate reasons and a misdirection of law. However, it is clear from reading the determination as a whole that there is no misdirection. The respondent seeks to argue that the fourth limb of the Devaseelan test was not applied, namely: 'Facts personal to the appellant that were not brought to the attention of the first adjudicator, although they were relevant to the issues before him, should be treated by the second adjudicator with the greatest circumspection' but the evidence referred to is a letter regarding the appellant's son's haemophilia dated 29th September 2015. No issue was taken by the respondent with the evidence provided either in the decision letter or in the hearing. In fact, the SSHD in her decision letter accepted that the medical conditions of the children remain the same as when considered by Upper Tribunal Judge McGinty (para 30, RB150).

19.    It is submitted that it is highly likely that the letter was before the First tier Tribunal given that the First tier Tribunal determination allowing the appeal was promulgated on 30th November 2015. There clearly was medical evidence before the tribunal on that occasion as it allowed the appeal in part on the basis of the child's severe medical condition. It is accepted that the appellant's children have haemophilia. Their second child has also been diagnosed as being a symptomatic carrier of haemophilia B and also has low levels of factor IX but is not receiving any treatment. Updating medical evidence was included in the respondent's bundle and further medical evidence was admitted on the day of the hearing. There was therefore up to date medical evidence and no suggestion that the 2015 letter was incorrect or that there was no reason to rely upon it.

20.    Recent caselaw is very clear that the tribunal cannot be expected to consider matters that were not raised by either party at the hearing ( Lata (FtT principal: controversial issues) [2023] UKUT 163. 3 9. The First tier Tribunal has not made a material error that would have affected the outcome of the appeal if it had been treated with circumspection given the findings made by First tier Tribunal Judge Kelly and affirmed by Upper Tribunal Judge McGinty. The First tier Tribunal did not err in its application of the principles set out in Devaseelan and there is no material misdirection in law.

21.    In his oral submissions Mr Flarty submitted that in relation to the document, there was no evidence that it was not brought to the attention of the FtTJ. He submitted that we did not have access to the FtT bundle from 2016. The letter is dated September 2015. In the original decision that he tribunal considered the child's medical circumstances which had always been accepted by the respondent and therefore the letter must have been evidence before the FtT to make the finding and for the respondent to accept the medical condition existed. It is not speculation it can be satisfied that this letter was before the original judge.

22.    Updated medical evidence was provided to the FtTJ for this appeal which has never been challenged. He submitted it was clear that the appellant had the old documents but also had placed updated information before the tribunal which had been accepted by both parties. He submitted that there was an age gap in the documents. He referred to paragraph 53 and the reference made the letter from the haemophilia department. He submitted that the documents were considered in the medical context.

23.    He further submitted it was not clear how the respondent refers and placing weight on this undermined the other relevant findings considered in the 2016 process and the Crown Court judge's sentencing remarks and that the FtTJ placed great weight on these.

24.    He referred to the letter dated 29 ^th of September 2015 and that whilst the respondent stated that it was an out of date letter and the judge did not comment on this, that submission fails to take into account the oral evidence from the appellant's partner in the appellant about that letter. The FtTJ sets out at paragraph 51 that they both gave reliable evidence and that the FtTJ took into account other documentary evidence. He therefore submitted there was no error of law based on ground 1.

Ground 2:

25.    The respondent submits the FtTJ has failed to provide adequate reasons and/or made a material misdirection of law in their assessment of s117C (5) of the Nationality, Immigration and Asylum Act 2002 (Exception 2) and that the FtTJ failed to direct themself to, and then to apply, the "highly elevated threshold" confirmed by the Supreme Court in HA (Iraq) in 2022.

26.    The appellant's two children both remain under the care of their mother (the appellant's partner) and her own statement shows she has the full support from family and friends to help her cope during the appellant's incarceration. It is not disputed the appellant was incarcerated and, as such, any involvement he may have with his children remains severely limited. The appellant's relationship with his partner and children remains interrupted by his ongoing incarceration and his contact with both children is severely limited. Further, the Respondent maintains there is little evidence to support the claim the appellant has been able to exert a positive influence on either child from prison.

27.    HA [Iraq] [2020] EWCA Civ 1176 does not lower the threshold of "unduly harsh". Underhill LJ, approves the formulation of McCloskey J in MK (Sierra Leone), approved by Lord Carnwath in KO. The SSHD takes the view that KO is very clear about there being a need to identify a level of harshness above that which would ordinarily be experienced by a child if a parent were deported.

28.    While the Respondent acknowledges there is no requirement for judgments to set out the entirety of the evidence presented or analysed, the principles established in Budhathoki (reasons for decision) [2014] UKUT 341 (IAC) remind the Tribunal that "It is, however, necessary for First-tier Tribunal judges to identify and resolve the key conflicts in the evidence and explain in clear and brief terms their reasons for preferring one case to the other so that the parties can understand why they have won or lost.

29.    In her oral submissions Ms Young submitted that ground 2 challenge the assessment of undue harshness upon the appellant's partner and child (see the grounds at paragraph 17 - 26).

30.    She submitted that the FtTJ failed to engage with the principles set out in HA (Iraq) ( as cited) and failed to appreciate and apply the elevated threshold.

31.    She further submitted that whilst the FtTJ referred to HA (Iraq) this was in the context of "very compelling circumstances" and the FtTJ quoted paragraph 51 which related to specific terms and not the unduly harsh assessment.

32.    Ms Young directed attention to that assessment between paragraphs 59 and 66. She submitted it was brief and lacked adequate reasoning to establish a sustainable finding as to the elevated threshold being satisfied.

33.    She referred to the Rule 24 response (paragraph 10) which in turn referred to paragraph 62 of the FtTJ's decision. The FtTJ did refer to the test for undue hardship "is a high one" however she submitted that was insufficient and that paragraph 41 of HA (Iraq) referred to the elevated threshold and the description of it, " severe and bleak." Paragraphs 59-66 do not go beyond "merely inconvenient" and does not set out what is bleak or by reference to the applicable test. This amounts to a material error of law.

34.    Mr Flarty relied upon the Rule 24 written response dated 19 December 2024.

35.    It is submitted that the grounds are general and non-specific. The First tier Tribunal carried out a full and careful analysis in reaching its conclusions that it would be unduly harsh and clearly referred to HA Iraq v SSHD [2022] UKSC 22 in its determination. The judge also made clear in his decision that the test he applied is a high one, greater than that which would ordinarily occur with any parent and child separation (para 62).

36.    While suggesting that she does not seek to reargue the appeal, the respondent does exactly that. The appellant was successful in his appeal against deportation in November 2015 as it would be unduly harsh for the appellant's partner and children. This decision was upheld by the Upper Tribunal. Nine years' on, the First tier Tribunal Judge on this occasion has allowed the appeal based on all the oral and written evidence applying the correct legal test. The appellant and his partner gave oral evidence which the tribunal considered along with further evidence in support from friends and professionals.

37.    The elevated threshold is met, the law is properly applied, and there is no material misdirection in the tribunal's application of the law to the evidence. The evidence clearly satisfied the test of the degree of harshness going beyond what would necessarily be involved with any child faced with the deportation of a parent.

38.    In his oral submissions Mr Flarty submitted that the FtTJ expressly referred to the relevant tests and the facts considered and as set out at paragraph 79 many of the facts had been considered in the previous section and therefore it indicated that the facts had already been considered and therefore were not explicitly repeated under each heading.

39.    Mr Flarty refer the tribunal to paragraph 81 of the decision where the judge set out that, "the appellant's deportation will be unduly harsh on both the children and the partner. The children's best interests are in the appellant remaining in the UK." He also referred to paragraph 66 of the FtTJ's decision where he stated, "in all the circumstances, I maintain the finding of the previous decision, that the deportation of the appellant would be unduly harsh of both the children and the partner." Also paragraph 62, where the FtTJ set out, "I have regard the fact that the test for undue hardship is a high one, as it refers to a hardship greater than that which would ordinarily occur with any parent and child separation. However, I am not satisfied that there has been any material chance(sic) in circumstances, since the previous decision." He submitted that the test had been set out and it did not mean that the FtTJ did not have the test in his mind and that he failed to apply it. He submitted the relevant test was in the FtTJ's mind through the consideration of his decision and just because it was not before the relevant facts did not mean that it was not considered properly.

40.    Mr Flarty submitted that the judge considered the exceptional personal circumstances as set out by the Crown Court judge ( see p138 of CEf ). The Crown Court judge referred to the facts which were the same as before the FtTJ and found the circumstances were "exceptional". He submitted that it also mirrored the findings in the totality of those from 2016 which can only be seen as strengthened in time.

41.    In his submissions Mr Flarty submitted that the respondent's grounds made a residual point that the FtTJ had not considered the fact that the appellant was incarcerated and the impact that had on the findings of undue harshness because of the impact of the incarceration has on that test. He submitted that was an argument that did not apply. The respondent was suggesting that the appellant can raise children, go to prison and the relationship is then severed or put on hold therefore lowering the relationship between them and that they would be less affected by a direct loss of their primary carer. He submitted that this could be seen as acceptance by the respondent that the relationship precluded deportation on the grounds of undue harshness. He submitted their argument made no sense because incarceration does not change the bonds between themselves and their father but brings to light the effect of deportation on the child.

42.    Ms Young by way of reply submitted that it was wrong to submit that the FtTJ that set out the test between paragraphs 78 and 79 of his decision. The section of HA (Iraq) quoted in the decision was relevant to the test of very compelling circumstances and not Exception 2 S117C and the question of undue harshness. Therefore the FtTJ has not set out the relevant test. Thus there was a clear material error of law which should result in the setting aside of the decision.

The Law:

43.    The applicable legal framework is not in dispute. When considering whether the appellant's deportation would be unlawful under Section 6 of the Human Rights Act 1998 as being in breach of Article 8 of the ECHR, any decision-maker considering the human rights issue is required to have proper regard to section 117 of the Nationality, Immigration Asylum Act 2002 and to adopt a structured approach to that question.

44.    By section 117A(1), Part 5A of the 2002 Act applies where a court or tribunal is required to determine whether a decision made under the Immigration Acts (such as a decision to deport a foreign criminal) would breach a person's right to respect for private and family life under article 8 ECHR. In such a case "the public interest question" is defined as being whether an interference with a person's right to respect for private and family life is justified under article 8(2) ECHR: see section 117A(3).

45.    When considering that question, a court or tribunal "must (in particular) have regard" in "all cases" to the considerations in section 117B, and in "cases concerning the deportation of foreign criminals" to the considerations in section 117C: section 117A(2).

46.    Section 117B provides that the maintenance of effective immigration controls is in the public interest (117B(1)); that it is in the public interest and in particular in the interests of the economic well-being of the United Kingdom that persons seeking to enter or remain in the United Kingdom are "able to speak English" (117B(2)) and are "financially independent" (117B(3)); and that little weight should be given to a private life, or a relationship formed with a qualifying partner, that is established by a person at a time when the person is in the UK "unlawfully" (117B(4)) or to a private life established by a person when the person's immigration status is "precarious" (117B(5)).

47.    Section 117C provides:

"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)     (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.

48.   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."
The relevant Immigration Rules are Paragraph 399 and 399A.

49.    The first question as to whether the appellant is a foreign criminal, as defined in section 117D(2) of the 2002 Act is not in dispute; the appellant is not a British citizen and has been convicted in the United Kingdom offence and has been sentenced to a period of imprisonment of at least 12 months (he was sentenced to a period of 38 months imprisonment). He is therefore a "foreign criminal."

50.    The central issue of this appeal concerns the issue of undue harshness. The unduly harsh test is a self-contained exercise. That means that it is not permissible for a judge to consider public interest considerations, the seriousness of the Appellant's offending and or the length of his sentence when assessing unduly harsh. The assessment of unduly harsh is confined to consideration of the impact of deportation on, in this case, the Appellant's partner. The impact of deportation on her is not to be weighed against the criminality of the Appellant. Unduly harsh does not equate with uncomfortable, inconvenient, undesirable or merely difficult. It poses a considerably more elevated threshold. "Harsh" in this context, denotes something severe, or bleak. It is the antithesis of pleasant or comfortable. Furthermore, the addition of the adverb "unduly" raises an already elevated standard still higher .

51.    There has been a significant amount of case law concerning the unduly harsh test. In  HA (Iraq) v SSHD (Rev 1)  [2020] EWCA Civ 1176  the court gave further guidance on  KO (Nigeria) & Ors v SSHD  [2018] UKSC 53 . This has now been endorsed by the Supreme Court in  HA (Iraq) v SSHD  [2022] UKSC 22 .

52.    The Supreme Court, in  HA (Iraq) v Secretary of State  [2022] UKSC 22  endorsed the approach of Underhill J and rejected the SSHD's contention that Lord Carnwath was contemplating a notional comparator test in  KO (Nigeria). Giving the lead judgement Lord Hamblen stated:

32.     Having rejected the Secretary of State's case on the unduly harsh test it is necessary to consider what is the appropriate way to interpret and apply the test. I consider that the best approach is to follow the guidance which was stated to be "authoritative" in  KO (Nigeria), namely the  MK self-direction:

"... 'unduly harsh' does not equate with uncomfortable, inconvenient, undesirable or merely difficult. Rather, it poses a considerably more elevated threshold. 'Harsh' in this context, denotes something severe, or bleak. It is the antithesis of pleasant or comfortable. Furthermore, the addition of the adverb 'unduly' raises an already elevated standard still higher."

33.     This direction has been cited and applied in many tribunal decisions. It recognises that the level of harshness which is "acceptable" or "justifiable" in the context of the public interest in the deportation of foreign criminals involves an "elevated" threshold or standard. It further recognises that "unduly" raises that elevated standard "still higher" - i.e. it involves a highly elevated threshold or standard. As Underhill LJ observed at para 52, it is nevertheless not as high as that set by the "very compelling circumstances" test in section 117C(6).

34.     Whilst it may be said that the self-direction involves the use of synonyms rather than the statutory language, it is apparent that the statutory language has caused real difficulties for courts and tribunals, as borne out by the fact that this is the second case before this court relating to that language within four years. In these circumstances I consider that it is appropriate for the  MK self-direction to be adopted and applied, in accordance with the approval given to it in  KO (Nigeria) itself.

35.     Having given that self-direction, and recognised that it involves an appropriately elevated standard, it is for the tribunal to make an informed assessment of the effect of deportation on the qualifying child or partner and to make an evaluative judgment as to whether that elevated standard has been met on the facts and circumstances of the case before it.

36.     Such an approach does not involve a lowering of the threshold approved in  KO (Nigeria) or reinstatement of any link with the seriousness of the offending, which are the other criticisms sought to be made of the Court of Appeal's decision by the Secretary of State".

Discussion:

53.    I am grateful to the advocates for the helpful submissions made by each of them and how they have advanced their respective cases. Before assessing those submissions, and as a general starting point I bear in mind the following propositions, which are not controversial, that judicial caution and restraint is required when considering whether to set aside a decision of the First-tier Tribunal, and that their decisions should be respected unless it is clear that they have misdirected themselves in law.

54.    The task of the Upper Tribunal i s to determine whether the First-tier Tribunal made a material error of law. I am not determining the appeal against the decision of the respondent. It does not matter if I would have reached a different conclusion. What matters is whether the decision under appeal is one that no reasonable judge could have reached.

55.    Thus, an appellate court should not rush to find misdirection's simply because they might have reached a different conclusion on the facts or express themselves differently (see AH (Sudan) v SSHD [2007] UKHL per Baroness Hale of Richmond; paragraph 30). The decision must be read sensibly and holistically, and that justice requires that the reasons enable it to be apparent to the parties why one has won, and the other has lost ( see English v Emery Reimbold and Strick Ltd [2002] EWCA Civ 605 at paragraph 16).

56.    The following principles that the law says must apply when considering whether there is an error of law. I summarise those, having considered:  KM v Secretary of State for the Home Department  [2021] EWCA Civ 693  AH (Sudan) v SSHD  [2007] UKHL 49  ,  AA (Nigeria) v  SSHD  [2020] EWCA Civ 1296 ,  MA (Somalia) v SSHD  [2010] UKSC 49  and  Volpi & Anor v Volpi  [2022] EWCA Civ 464 .

57.    The First-tier Tribunal is an expert tribunal, and an appellate court should not rush to find a misdirection an error of law merely because it might have reached a different conclusion on the facts or expressed themselves differently.

58.    The UT should not interfere with the trial judge's conclusions on primary facts unless it is satisfied that he was plainly wrong.

59.    The UT should not be astute to characterise as an error of law what, in truth, is no more than a disagreement with the UT's assessment of the facts.

60.    Where a relevant point is not expressly mentioned by the First-tier Tribunal, the court should be slow to infer that it has not been taken into account.

61.    The UT is an appellate court, and it is bound, unless there is compelling reason to the contrary, to assume that the First-tier Tribunal judge has taken the whole of the evidence into his consideration. The mere fact that the First-tier Tribunal does not mention a specific piece of evidence does not mean that he overlooked it.

62.    Experienced judges in this specialised tribunal 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.

63.    Reasons for judgment will always be capable of having been better expressed. An appellate court should not subject a judgment to narrow textual analysis. Nor should it be picked over or construed as though it was a piece of legislation or a contract.

64.    Decisions should be respected unless it is quite clear that the First-tier Tribunal has misdirected itself in law.

65.    Dealing with ground 1, it is submitted on behalf of the respondent that the FtTJ erred in law when considering the principles in Devaseelan . This was relevant in this appeal as it is common ground that there had been previous decisions made by the FtT and the Upper Tribunal which related to this appellant. His appeal had been allowed by FtTJ Kelly in a decision promulgated on 30 November 2015. There was no copy of the decision made by FtTJ Kelly in the material that was put before the FtT in these proceedings, nor has there been a copy provided for the Upper Tribunal. However it is possible to rely on the salient parts of that decision as reflected both in the decision letter and also in the decision of Deputy Upper Tribunal Judge McGinty. Neither party has directed my attention to that decision, but it is a matter of record and plainly formed part of the material that was before the FtT.

66.    FtTJ Kelly allowed the appeal having found both Exception 1 and Exception 2 as satisfied on the particular factual circumstances. For the purposes of the present appeal, it is only Exception 2 that is of relevance. The FtTJ found that Exception 2 applied taking into account in particular the severe health problems suffered by the appellant's child, J. J is diagnosed with severe haemophilia B which is a rare bleeding disorder that was diagnosed at birth and is a lifelong condition. J has a reduced level of clotting factor XI (9) which means he has an increased risk of bleeding. The bleeds can occur spontaneously or as a result of trauma. In order to prevent bleeds, J is provided with prophylactic treatment by way of weekly injections given by his parents directly into his veins. He is required to undertake regular medical appointments, and his care is undertaken at a well-known hospital. FtTJ Kelly found that the appellant had genuine and subsisting relationship with his partner and also a genuine and subsisting parental relationship with his two children and that the effect of his deportation upon his partner and children would be unduly harsh (as recorded by DUTJ McGinty; paragraph 12;p 117Cef).

67.    The respondent appealed that decision which came before DUTJ McGinty. Whilst Ms Young referred to this as a "remaking decision" that is not accurate. DUTJ McGinty upheld the FtTJ's decision having found that it did not contain any material error of law and dismissed the respondent's appeal.

68.    The relevant part of the decision relating to Exception 2 can be found from paragraph 49 onwards. The DUTJ concluded that the findings in respect of the appellant's relationship with the children and the unduly harsh effect upon them were ones which were open to the FtTJ to make on the "very particular circumstances of this case". I observe that at the time of that hearing the law on undue harshness was that set out in KMO and the reference to the appellant's criminality being relevant to the test of undue harshness is not the law as it stood at the time of the present hearing.

69.    Returning to the decision of DUTJ McGinty, as to the respondent's argument that the FtTJ failed to provide adequate reasons on the issue of undue harshness and why the availability of assistance was insufficient to meet the financial and medical needs of the family in the appellant's absence, he referred to the FtTJ's assessment and that J suffered from a severe medical condition (haemophilia B) which means he has a deficiency in factor IX which is 1 of the essential clotting factors in blood and that as a consequence is prone to bleeding episodes into another part of his body which can result from traumatic injury or bleeding spontaneously. This is a lifelong condition and can cause long-term joint problems and that the child requires prophylactic treatment at least twice per week and sometimes daily when there is a bleed. The FtTJ accepted that was currently administered by the appellant's partner with the assistance of the appellant and that the child struggled while the procedure was being administered, and that the appellant's role is to hold and still in that whilst the appellant was in detention in 2014 his partner was forced to take the child to hospital twice a week in order for the nurse to hold him still whilst his partner administered the drugs.

70.    At paragraph 56 the judge set out the other findings made by FtTJ Kelly and that the consequences of the appellant's deportation on his partner and 2 children would appropriately be characterised as "unduly harsh". He found that the difficulties his partner would face in struggling to provide financial and medical support for the child without assistance would be obvious and that those differences will be exacerbated by the fact that she would in addition have to cope with bringing up her second child who at that stage was 12 months old. DUTJ McGinty set out the position of the respondent, that many people struggle with ill children or will be forced live on benefits, but that he considered it was relevant and as found by the judge at paragraph 16 that the appellant's partner was working part-time, and that the appellant was caring for the 2 children while she was at work. At paragraph 57 the DUTJ set out that in his judgement the findings made by the FtTJ as to the consequences of deportation on the 2 children and his partner was such that it would be unduly harsh to deport the appellant in such circumstances where their mother would be forced out of her job and she would have difficulties with caring for J child who suffered from severe haemophilia B in addition to bringing up another child who is 12 years old and that the judge had adequately and sufficiently explained his decision which was neither irrational nor perverse. He concluded that this was a decision that was reasonably open to the judge in light of the specific circumstances of the case and the severe medical circumstances of the appellant's child.

71.    Returning to the present appeal, the FtTJ was plainly aware of the previous decisions and that in the circumstances the principles of Devaseelan applied (see paragraphs 14 and paragraphs 26). The FtTJ also expressly referred to those principles at paragraph 47 and approached the previous decisions as his "starting point" and correctly identified that the previous decision was made in 2015/2016 and that events had occurred since and that various factors may have changed or developed during the intervening period (see paragraph 50).

72.    The FtTJ undertook a brief assessment of the evidence that was before him between paragraphs 51 - 56 which included the evidence from the appellant and his partner (see paragraph 51), various letters and character references (paragraph 52), evidence that he considered came for a more objective source (paragraph 53), letters from the children (paragraph 54) and the sentencing remarks and the references made by the sentencing judge to the "exceptional circumstances" of the appellant (see paragraph 55). He then set out his findings as relevant to Exception 2 from paragraphs 57-58. He addressed the best interest of the children correctly as a primary consideration and addressed the respondent's argument that the relationship between the appellant and the children had become "fractured and unstable" due to his criminality. The FtTJ set out that he rejected that assessment of the relationship and that whilst the sentence had imposed a temporary physical separation, the judge found that "the weight of the evidence was that there was a good, stable and ongoing relationship between him and the children. He had been there full-time carer prior to the recent sentence and played a very active role in their daily lives." Reference was again made to the eldest child and his special medical needs due to his condition. Reference was made to the continuing relationship whilst in prison and visits undertaken and the regular phone conversations. He therefore concluded that the appellant had "a strong relationship with the children, and it was in their best interests to have the appellant living with them and resuming his caring duties".

73.    At paragraph 59, the FtTJ referred again to the previous decision in 2016 and the position at the hearing as advanced by each of the parties (see paragraphs 60 and 61). This reflected the decision letter at paragraph 30.

74.    It is right that the judge recorded that whilst it had been said there was no material change in the circumstances he found that the "emotional bonds have strengthened with the passage of time. The eldest child medical condition is permanent and there has been no relevant improvement" (at paragraph 60). At paragraph 62, the FtTJ set out the applicable test for undue harshness as a "high one, as it refers to a hardship greater than that which would ordinarily occur with any parent and child separation" and then addressed the issue between paragraphs 62 - 66. The FtTJ concluded that he was not satisfied that there had been any material change in the circumstances since the previous decision stating that in that regard he accepted the evidence of the appellant's partner. He concluded contrary to the submissions made on behalf of the respondent, that she had been able to manage the appellant's absence primarily because it had been on a temporary basis. The situation regarding the help of family and friends would be materially different to the separation if it was permanent and the emotional effect on the children would also be materially different as they are currently unaware of the possibility of deportation. He referred to the lack of evidence on financial details but nonetheless accepted that the situation was likely to deteriorate over the longer term. He concluded that the appellant played a crucial role in the children's lives particularly the eldest child who had special medical needs; taking care of the school transport, medical appointments and other daily activities and dealt with the medical emergencies and hospital stays. His presence allowed his partner to work full-time and also provided the emotional support as a long-term partner and father. From the country materials and the situation in the DRC he found that based on the eldest child's medical needs and financial limitations that it was unlikely that they would be any visits by the appellant's partner or by the children. It would not be feasible, and remote communication would be an inadequate substitute for the children who had grown up with a living full-time carer father.

75.    It is against that background both grounds 1 and 2 are to be considered.

76.    Whilst it is submitted on behalf the respondent that the FtTJ failed to adhere to headnote 4 of Devaseelan, and by reference to the letter dated 29 September 2015, that submission is not made out for the following reasons. The central part of the submission is that the evidence identified by the FtTJ at paragraph 53 which included the letter from the regional specialist social worker dated 29/9/2015 and described by the FtTJ as "professional and well balanced" was evidence that had not been available at the previous hearing and therefore the FtTJ should have treated that evidence of greater circumspection. It is submitted that this document which may "have changed and developed "since the hearing before DUTJ McGinty and therefore the current FtTJ fell into error by placing weight on such evidence without establishing why it was not previously submitted.

77.    Having heard the parties submissions and having considered them in the context of the evidence that I have referred to, there is no merit in that submission. The letter itself predates both the hearing before FtTJ Kelly and DUTJ McGinty being dated 29 ^th of September 2015. The 2016 bundle of documentation is not available. Nonetheless it is possible to discern from the contents of the letter when read in the context of the evidence recited in the decision of DUTJ McGinty which in turn reflected the decision of FtTJ Kelly that it refers to the same factual circumstances. For example, the 2015 letter reflected the circumstances of J and the treatment but that the appellant was starting to train "very soon" and would be taught by a specialist nurse. J's needs were set out in the decision of DUTJ McGinty in similar terms (see paragraphs 55 and 56 of his decision) and at the time of the hearing before FtTJ Kelly it was recorded that the treatment was administered by the appellant's partner with the assistance of the appellant who was holding him still. Reference was made to the circumstances in which J had been hospitalised. Paragraph 56 which sets out the evidence before FtTJ Kelly also reflected the circumstances of the appellant's partner and the difficulties being exacerbated by having to care for a 2 ^nd child (p132Cef) which is also consistent with the contents of the letter dated September 2015.

78.    I consider the submission made on behalf of the appellant to be the more persuasive one and that it is likely that the letter was before both FtTJ Kelly and DUTJ McGinty given its date and its contents. Furthermore having undertaken a check of the documents which was sent for the present proceedings I observe that the letter was not identified as a new piece of evidence either in the documents itemised in the decision letter (see paragraph 24) nor in the letter from the solicitors with their representations (dated 19/1/2024). The grounds in this respect disclose no error of law in the FtTJ's decision on that basis.

79.    It is further submitted that the FtTJ erred by attaching weight to that letter given its date. There is no dispute that the letter is dated 2015 and thus reflects the circumstances as at that date. However as submitted on behalf of the appellant the circumstances relating to J and his medical condition has not changed. It is a lifelong condition that he has and continues to be managed by his parents and principally on the later evidence the appellant before his imprisonment. The more recent evidence which the FtTJ referred to and assessed at paragraph 53, which the FtTJ considered to emanate from an "objective source" was the evidence from the haemophiliac unit dated 15/1/24. This evidence whilst more up-to-date reflected the same factual circumstances relating to J which again described the serious medical condition that he has, and the consequential risk factors that he has from the condition. As identified in the 2015 letter in order to prevent bleeding occurring he receives weekly's treatment which is given directly into his veins by his parents. It identifies the continuing seriousness of his condition and that both parents were included in administering it. This was evidence upon which the FtTJ relied upon in his findings at paragraph 57.

80.    Ms Young in her submissions points to the second part of the letter which referred to the lack of support network available and that this was incorrect from the evidence. However the contents of the letter reflected the support or lack of it in 2015. The FtTJ was plainly aware of the more up-to-date position as to the support the appellant's partner had but had made an express finding upon this issue at paragraphs 57, 60 and 63 of his decision. The FtTJ clearly had regard to the respondent's argument at paragraph 61 that the appellant's partner could cope without the appellant as she had support and assistance from friends and therefore it different from the previous circumstances, but the FtTJ rejected that argument from the evidence before him and for the reasons given between paragraphs 62 to 66. The FtTJ set out that he accepted the appellant's partners evidence which he found to be both "reliable and consistent" and that she was able to manage on a temporary basis and with the help of friends and that it would be materially different if the separation was permanent. The differences were set out in the witness statement of the appellant's partner and in an earlier letter which she relied upon that had been filed in 2024. This was supported by the letter from her friend ( see letter dated 17 June 2024;p 107) which also address the difficulties arising from the level of support and the impact upon her and upon the children. There was also evidence (p60) where reference is made to the effects of the appellant's absence upon the children. The author of the letter refers to the effect of the absence of the appellant upon both children and references an outburst from J which involved a physical altercation which was of particular concern to the appellant's partner due to his rare blood condition and the impact upon that. Reference also made to the effect upon the appellant's partner and the support and assistance given by the appellant.

81.    Whilst Ms Young submits that the judge did not refer to the letter, as Mr Flarty pointed out, it is referred to in substance at paragraph 52. The FtTJ recognised that the letters, as compared with the more objective sources given from the hospital and the social worker had less weight attached to them but was entitled not to dismiss their contents entirely and to place some weight upon them as he did and as he stated he did in his assessment of the evidence overall. For those reasons ground 1 is not made out.

82.    Turning to ground 2, it is submitted on behalf of the respondent that the judge failed to direct himself appropriately to the high elevated threshold are set out in the decision of HA(Iraq)(as cited). The written grounds refer to the findings of the FtTJ as overlooking the appellant's criminality. However as the decision HA (Iraq) makes plain the test under section 117C (5) does not require a balancing of the public interest and therefore the FtTJ was not required to take account of the appellant's criminality when undertaking an assessment of the evidence on undue harshness and the effect upon the children. They can be no error of law based on that submission as it is contrary to the law as it stands.

83.    Turning to the more relevant submission made, the applicable test as set out in the earlier summary of the law. Whilst Ms Young submits that the FtTJ did not refer to the test of undue harshness and that the reference made to HA(Iraq) was only by reference to whether there were "very compelling circumstances", as with any decision of a FtTJ it should be read as a whole. The FtTJ plainly set out the relevant issues which he had to decide at paragraph 25 which included at paragraph 25(i) whether it would be unduly harsh the appellant's children and partner to live in the UK without the appellant. The respondent had accepted that it would be unduly harsh for the appellant's partner and children to live in the DRC with him. The FtTJ also had expressly recorded the competing arguments succinctly in his decision between paragraphs 16 and 18 and in his assessment of the relevant issues between paragraphs 57 and 66. The FtTJ did refer to the decision of HA(Iraq) at paragraph 78 and whilst he summarised the relevant factors of whether there were "very compelling circumstances" he also referred to his earlier findings on undue harshness (see paragraph 81). It is difficult to see how it could be said that the judge failed to consider the decision in HA (Iraq) having expressly referred to it and that he was plainly aware of its relevance to the issue of undue harshness. By his own self-direction at paragraph 62 to the applicable test of undue harshness as a "high one" when properly read can only be a reference to the elevated test as set out in that decision. The FtTJ also sets out that it was necessary to identify hardship greater than that which would ordinarily occur with any parent and child separation which reflected paragraph 42 of HA (Iraq).

84.    When considered, the assessment of undue harshness was succinct, but the FtTJ gave reasons why he preferred the appellant's case to that of the respondent, the FtTJ addressed the competing arguments and provided his reasoning which was adequate and sustainable as to why he found on the particular facts and circumstances in this case to demonstrate that it would be unduly harsh for the children and their mother to remain in the UK without the appellant. By way of example, the FtTJ addressed the relationship between the appellant and the children and whether it was fractured and unstable as the respondent had argued (see paragraph 53). The FtTJ rejected that argument for the reasons that he gave. He addressed the argument as to whether there had been a material change 59 and undertook an assessment of that issue. The FtTJ also addressed the issue raised as to the effect of a permanent separation as opposed to a temporary separation and gave reasons between paragraphs 63 - 66 as to why he rejected that argument.

85.    As set out in the applicable legislation, and case law, if the appellant meets Exception 2, the public interest question is answered in favour of the foreign criminal, without the need for a full proportionality assessment or any balance of the factors. Parliament has pre-determined that in the circumstances the specified the public interest in the deportation of medium offenders does not outweigh the article 8 interests of the foreign criminal or his family: they are, given, so to speak, a short cut. The consideration of whether those Exceptions apply is a self-contained exercise governed by their particular terms. Thus i f an appellant is able to establish that the impact of deportation would be unduly harsh on his children and/or his partner his or her appeal falls to be allowed under Article 8. That was the assessment carried out by the FtTJ, albeit in succinct terms, and the grounds do not demonstrate the FtTJ erred in that assessment.

86.    Mr Flarty in his closing submissions referred to seeking costs in respect of the hearing although he acknowledged there had been no application made, or any schedule provided. Ms Young by reply also referred to the failure to make a written application or putting the respondent on notice and that in any event the grounds were well drafted and were deemed arguable which is why permission had been granted. I agree with the submission made by Ms Young. This is not an appeal where both parties were in agreement as to whether the decision demonstrated an error of law. The grounds were deemed arguable as determined by the grant of permission and has been an issue which had to be determined by the Tribunal, and it has not been demonstrated that it was unreasonable for the respondent to seek such permission and to challenge the decision. The fact that the respondent has not succeeded in the challenge does not mean that it was unreasonable for such a challenge to be brought.

 

Notice of Decision

The decision of the First-tier Tribunal did not involve the making of an error on a point of law; the decision of the FtT shall stand.

 

 

Upper Tribunal Judge Reeds

 

Upper Tribunal Judge Reeds

 

Dated: 2 April 2025