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

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Upper Tribunal

(Immigration and Asylum Chamber) Appeal Number: UI-2024-004933

HU/02111/2023

THE IMMIGRATION ACTS

 

Heard at Field House	Decision & Reasons Issued
On 4 February 2025
	20 th February 2025

 

 

Before

 

DEPUTY UPPER TRIBUNAL JUDGE J F W PHILLIPS

 

 

Between

 

SECRETARY OF STATE FOR THE HOME DEPARTMENT

Appellant

and

 

DRITAN MAZREKU

Respondent

Representation:

For the Appellant: Mr M Parvar, Senior Home Office Presenting Officer

For the Respondent: Ms E Doerr, Counsel instructed by Wilson Solicitors

 

DECISION AND REASONS

Introduction

1.              This is an appeal by the Secretary of State against the decision of the First-tier Tribunal (Judge Brannan) in which the Judge allowed the appeal of the Appellant (as he then was), a citizen of Albania, against the Secretary of State's decision deport him finding that the Appellant met exception 2 of s.117C(5) of the Nationality, Immigration and Asylum Act 2002. Although the Secretary of State is the appellant in this appeal, I shall refer to the parties in this decision as they were referred to by the First-tier Tribunal.

2.              The grounds of appeal to the Upper Tribunal assert that the First-tier Tribunal Judge erred in law by making a material misdirection in law through inadequate reasoning relating to the unduly harsh test. Permission to appeal was granted by Judge Curtis Kebede on 17 October 2024 on the basis that it was "at least arguable that the Judge did not provide adequate reason for his finding that the Appellant's deportation would be unduly harsh on his step-son". By way of response the Appellant has submitted a skeleton argument.

Submissions

3.              Mr Parvar on behalf of the Respondent said that the conclusion that it would be unduly harsh for the Appellant's stepson to remain in the United Kingdom following the deportation of the Appellant does not stand up to scrutiny. One can have sympathy for the Appellant, but the Judge does not measure the potential impact of the Appellant's exclusion on the emotional well-being and education of his stepson who will have his mother and grandmother to support him. The Judge has not examined whether the Appellant, who is currently supporting the stepson and his mother would continue to provide support from Albania. The Appellant is a fit and healthy young man. The Judge has not contemplated his earning potential in Albania. If the Appellant and his family are in loving relationship he would continue to support them. Limited weight can be given to the Appellant keeping his stepson safe bearing in mind his conviction. The Appellant's stepson was not supported by the Appellant during his incarceration or during his separation from his mother. The Judge has not looked at the effects on the child during this period.

4.              For the Appellant Ms Doerr adopted her skeleton argument. The suggestion that the factors considered by the judge do not meet the high threshold of exceptionality is different from the grounds of appeal but wrong in any event, . The judgment should be read as a whole. This is a very well-reasoned judgment. The Judge sets matters out in great detail and takes everything into account and grapples with the factors involved. The Judge makes it clear that the most important factor is that this is a child who has experienced abandonment before, and this is what makes the effect on him unduly harsh. The issues of financial support and keeping safe are minor matters to be looked at in the round. The Judge notes that the family is relatively poor and being able to travel to Albania regularly is a remote possibility. He notes that throughout his incarceration and his separation from the child's mother the Appellant kept in contact. The Judge deals with everything.

Discussion

5.              The Appellant is a 29-year-old citizen of Albania who arrived in the United Kingdom in about 2014. He began a relationship with a Latvian national in 2015 and they married in 2017 giving the Appellant the right to remain. The Appellant's wife has a son from a former relationship who is now 15 years old. The child's father had no relationship with him and from 2015 the Appellant took a paternal role. The Appellant's contact with his stepson was interrupted firstly by the separation of the Appellant and his wife and secondly by his incarceration. Judge Brannan found (para 46)

"the Appellant has played the role of his stepson's father since the child was five years old. He remembers no other father. That man is the husband of his mother. Regardless of the difficulties in the relationship between the Appellant and his wife, I find the relationship between the Appellant and his stepson has been genuine and subsisting since 2015 when they started to live together. As explained above, it continued during any periods when cohabitation stopped."

Having made that finding on the facts and having set out the legal framework the Judge goes on to give particular consideration to the definition of "unduly harsh" and properly self directs to HA (Iraq) (Respondent) v Secretary of State for the Home Department (Appellant) [2022] UKSC 22.

6.              Having done so the Judge goes on to consider the five factors identified by Ms Doerr in her Appeal Skeleton Argument which were repeated by Ms Doerr in submissions to me. The Judge finds that these factors taken together meet the test of undue harness and that exception 2 applied (para 63).

7.              The challenge by the Respondent is not perversity but that this conclusion is inadequately reasoned. This challenge is very difficult if not impossible to make out. The Judge's reasoning is extremely detailed, and, in my judgment, inadequacy could only arise if factors taken into account in this reasoning were manifestly wrong. They are not. The finding that the stepson was in the unusual situation of being abandoned by his biological father as a baby is not at odds with the finding that there was no evidence that he had been adversely impacted emotionally or physically. The abandonment was a fact and abandonment is not usual. Mr Parvar's suggestion that a measurement of the adverse effects should have been conducted is without merit. The Judge finds that the Appellant has a genuine and subsisting parental relationship with his stepson, that he remembers no other father and that this situation has subsisted since the stepson was 5 years old. The Judge points out (para 49) that the issue is not the situation that pertained prior to the Appellant's involvement in his life but that which has pertained since. Having made this primary finding the Judge goes on to consider the other factors put forward. The Judge's findings about the financial situation of the Appellant's wife were not speculative. They were a logical conclusion based upon the fact that the family were being supported by the Appellant at all times when he was in work and that his wife has only ever earned minimum wage. There can be little doubt that regular visits to Albania would be unmanageable. Mr Parvar's suggestion that an examination of the Appellant's earning potential if he were returned to Albania should have been made is again without merit. The findings about the Appellant's influence and male parental presence were not stand alone and were given limited weight and became part of the overall picture. The Judge finds that communication by 'modern means' is no substitute for physical presence.

8.              At paragraph 55 the Judge makes it clear that he has considered all matters together to reach a decision as to whether the elevated threshold of unduly harsh is met. This is a proper self-direction. The reasoning thereafter is clear and is set out over the next ten paragraphs. This reasoning cannot be described as inadequate. The prime issue is that this was a decision which quite clearly took into account all factors in the round before a conclusion was reached. The Judge takes into account both negative and positive factors. It is a manifestly well-reasoned decision and in my judgment no error of law is made out.

Conclusion

9.              The decision of the First-tier Tribunal did not involve the making of a material error of law.

10.          The appeal of the Secretary of State is dismissed. The decision of the First-tier Tribunal stands.

 

 

 

 

 

Signed: Date: 11 February 2025

 

J F W Phillips

Deputy Judge of the Upper Tribunal