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

 

IN THE UPPER TRIBUNAL IMMIGRATION AND ASYLUM CHAMBER		Case No: UI-2024-005901
	First-tier Tribunal No: HU/01262/2024

 

THE IMMIGRATION ACTS

Decision & Reasons Issued:

 

On 28 ^th of March 2025

 

Before

 

UPPER TRIBUNAL JUDGE RUDDICK

DEPUTY UPPER TRIBUNAL JUDGE D. CLARKE

 

Between

 

SECRETARY OF STATE FOR THE HOME DEPARTMENT

Appellant

and

 

OLUFEMI ADENYI OJALEYE

Respondent

Representation :

For the Appellant: Ms H. Gilmore, Senior Home Office Presenting Officer

For the Respondent: Mr A. Alam, instructed by Apex Solicitors

 

Heard at Field House on 19 March 2025

 

 

DECISION AND REASONS

1.             The Secretary of State for the Home Department ("the SSHD") has been granted permission to appeal against the decision of the First-tier Tribunal ("the FTT") to allow the appeal of a foreign criminal against the decision to refuse his human rights claim and deport him from the UK.

2.             The SSHD is the appellant in the proceedings before the Upper Tribunal, and Mr Ojaleye is the respondent. However, for ease of reference we will refer to them throughout as they were before the FTT. All further reference to "the appellant" are therefore to Mr Ojaleye, and all further references to "the respondent" are to the SSHD.

Introduction

3.             This is an appeal about the balance to be struck between the public interest in deporting a foreign criminal who has committed a serious crime and the best interests of his British children. The task of the First-tier Tribunal in this appeal was to apply the detailed rules for striking that balance, as established by Parliament in Sections 117B and 117C of the Nationality, Immigration and Asylum Act 2002, together with the guidance from the UK Supreme Court as to how to interpret and apply those rules.

4.             At section 117C, Parliament set out that the deportation of foreign criminals is in the public interest, and that the more serious the offence, the greater the public interest in deportation. However, Parliament has also set out two exceptions, where the public interest does not require a foreign criminal's deportation:

(i)             Exception 1: Where the foreign criminal has been lawfully resident in the UK for most of their life, and they are socially and culturally integrated into the UK, and there would be very significant obstacles to their reintegration in the country to which they would be deported. This is set out at Section 117C(4);

(ii)          Exception 2: Where the foreign criminal "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 their deportation on the partner or child would be "unduly harsh". This is set out at Section 117C(5).

5.             A "qualifying child" is a child who is British or who has lived in the UK for a continuous period of at least seven years.

6.             If either exception is met, according to the statute, it will not be in the public interest to deport a foreign criminal, unless they have been sentenced to at least four years' imprisonment.

7.             If the foreign criminal has been sentenced to at least for years' imprisonment, however, the public interest will require their deportation "unless there are very compelling circumstances, over and above those described in Exceptions 1 and 2".

8.             As the FTT in this case expressly recognised, this statute has created a "complete code" within which all deportation appeals must be decided.

9.             The appellant in this case was sentenced to a term of seven years' imprisonment for playing a leading role in a sophisticated fraud, conducted over a sustained period of time, for profiting from the COVID-related Bounce Back loan scheme. The statutory scheme thus requires his deportation unless there are "very compelling circumstances, over and above those described in Exceptions 1 and 2".

10.         The respondent accepts that Exception 1 is met in this case. The appellant is a citizen of Nigeria who arrived in the UK as a visitor in September 2002 and has lived here ever since, the majority of the time lawfully. He has only visited Nigeria once since his arrival, in 2004.

11.         The respondent also accepts that Exception 2 is met in this case, because the appellant's deportation would have unduly harsh consequences for his children. The appellant is the father of four British children, who have two different mothers. Two of the children have an autism diagnosis and very significant additional needs. For the purposes of this appeal, we refer to those children as "C1" and "C2". We do not consider it necessary or appropriate to set out their needs in detail. It is sufficient to repeat an overview written by the specialist school they attend, which is quoted at [44] of the FTT decision. This says that their autism impacts "every aspect of [their] daily life" and they "need support with even the smallest tasks such as dressing, eating, and toileting. Interacting with other people presents challenges [...] Structure and consistency to cope with daily routines is required at all times so that [they] can cope with everyday life."

12.         The respondent also accepted that the appellant has been assessed as presenting a "low risk" of reoffending. However, the respondent did not accept that there were "very compelling circumstances" over and above Exception 1 and 2.

13.         The FTT disagreed and allowed the appeal. It made it clear that "but for" the needs of C1 and C2, it would have dismissed the appeal. The respondent now appeals against that decision.

14.         It is not the role of the Upper Tribunal to decide for itself whether it agrees or disagrees with the FTT's assessment. It is our role to decide if the FTT made a legal error that requires the decision to be set aside.

15.         For the reasons set out below, we have concluded that the FTT did not make a material error of law and the decision should not be set aside.

The grounds of appeal

16.         The respondent appeals on two grounds.

17.         Ground One is "Failing to give adequate reasons for findings on a material matter". Although the grounds themselves do not set out the relevant legal test, it is uncontroversial. It was set out MK (duty to give reasons) Pakistan [2013] UKUT 641 (IAC) and recently reiterated in Joseph (permission to appeal requirements) [2022] UKUT 218 (IAC). Citing English v Emery Reimbold & Strick Ltd. (Practice Note) [2002] EWCA Civ 605, the Upper Tribunal reiterated in Joseph at [43] that:

"[The duty to give reasons] does not mean that every factor which weighed with the Judge in his appraisal of the evidence has to be identified and explained. But the issues the resolution of which were vital to the Judge's conclusion should be identified and the manner in which he resolved them explained. [...] It need not involve a lengthy judgment. It does require the Judge to identify and record those matters which were critical to his decision."

18.         The respondent's grounds do not speak directly to that test. They begin by making the uncontroversial point that the FTT's finding that it would be in the best interests of the children that the appellant remain in the UK was "not determinative".

19.         The respondent then raises two specific complaints:

(i)              The FTT failed to "outline the appellant's role in his children's care before he went to prison beyond citing the respondent's observation that he assists by taking the children to school, [to] social gathering[s] and assisting with homework."

(ii)           "While it is claimed that [the children's mother] is finding life 'hard' without the appellant [28], it is submitted that this is no more than is to be expected when a parent is imprisoned and there is no finding that the situation would be materially different following the appellant's deportation."

20.         For these two reasons, the FTT was said to have "failed to point to sufficient evidence" to support the finding that there was very compelling circumstances.

21.         Ground Two is entitled "Making a material misdirection of law". It consists of a reminder, with reference to SSHD v Garzon [2018] EWCA Civ 1125, that the threshold is a high one. This is followed by a long excerpt from the leading Supreme Court case of Hesham Ali v SSHD [2016] UKSC 60 at [38]:

 

"The implication of the new rules is that rules 399 and 399A identify particular categories of case in which the Secretary of State accepts that the public interest in the deportation of the offender is outweighed under article 8 by countervailing factors. Cases not covered by those rules (that is to say, foreign offenders who have received sentences of at least four years, or who have received sentences of between 12 months and four years but whose private or family life does not meet the requirements of rules 399 and 399A) will be dealt with on the basis that great weight should generally be given to the public interest in the deportation of such offenders, but that it can be outweighed, applying a proportionality test, by very compelling circumstances: in other words, by a very strong claim indeed, as Laws LJ put it in SS (Nigeria). The countervailing considerations must be very compelling in order to outweigh the general public interest in the deportation of such offenders, as assessed by Parliament and the Secretary of State. The Strasbourg jurisprudence indicates relevant factors to consider, and rules 399 and 399A provide an indication of the sorts of matters which the Secretary of State regards as very compelling. As explained at para 26 above, they can include factors bearing on the weight of the public interest in the deportation of the particular offender, such as his conduct since the offence was committed, as well as factors relating to his private or family life. Cases falling within the scope of section 32 of the 2007 Act in which the public interest in deportation is outweighed, other than those specified in the new rules themselves, are likely to be a very small minority (particularly in non-settled cases). They need not necessarily involve any circumstance which is exceptional in the sense of being extraordinary (as counsel for the Secretary of State accepted, consistently with Huang [2007] 2 AC 167, para 20), but they can be said to involve "exceptional circumstances" in the sense that they involve a departure from the general rule."

This was followed, in turn, by the general assertion that "the FTTJ's reasoning that the appellant's deportation would result in undue harshness for the appellant's children simply does not establish that the high threshold, as set out in the established case law cited above, is made out." Although the grounds did not identify which aspect of the principles set out in Hesham Ali had been ignored or misunderstood by the FTT, this would appear to be a repetition of the submission that the consequences of the appellant's deportation for his children were simply not harsh enough to meet the high threshold necessary to outweigh the public interest in deportation.

22.         The FTT granted the respondent permission to appeal on both grounds, in the following terms:

"2. The grounds argue that the Judge erred in the assessment of whether there were very compelling circumstances, the Appellant is currently in prison and had not lived with his children before then. The fact his remaining was in their best interests did not determine the outcome and there was no assessment of his role in their lives.

"3. It is arguable that the Judge erred in the assessment of the circumstances overall having regard to the lack of direct involvement in his children's daily lives and his imprisonment."

The hearing

23.         At the outset of the hearing, we confirmed that both parties had had sight of the respondent's 580-page bundle, in spite of the fact that it had not been served until late on the afternoon before the hearing. Mr Alam then brought Ms Gilmore's attention to the appellant's Rule 24 response, which she had not seen. We rose for 15 minutes to allow her sufficient time to consider it.

24.         We advised Ms Gilmore that our preliminary view was that the respondent's grounds appeared to have been mislabelled. The first ground appeared to be not that the FTT had not given adequate reasons (as defined in the caselaw cited above), but rather that the reasons provided were not persuasive. This was, essentially, an argument that no rational judge could have reached the conclusion that this judge did on the basis of those reasons. The second ground was not particularised, but appeared to be that if the FTT had had the correct standard in mind, it could not have reached the conclusion that it did. This could be read as a perversity challenge.

25.         Ms Gilmore confined her submissions to Ground Two. Although she did not expressly concede Ground One, she said that Ground Two was the stronger of the grounds, and that she had nothing to say about Ground One. We are grateful for her pragmatism.

26.         Ms Gilmore accepted that the FTT appeared to have directed itself to the correct law. Between [59] and [71], the FTT set out the governing statute and all of the relevant caselaw on how that statute should be interpreted. She conceded that she could not point to any relevant legal principles that had either been overlooked or misdescribed anywhere in this section of the decision. We note here that this was not a case of the FTT simply name-checking caselaw. The FTT quoted in full both the statutory framework and the key sections of the leading caselaw. Where the FTT did not set out excerpts from the caselaw, it summarised the key principle it took from it. Hesham Ali was specifically cited at [71] for the importance of deportation as a deterrent to criminal offending, even where (as here) there may be a low risk of reoffending.

27.         Ms Gilmore then submitted that in spite of this comprehensive self-direction, the FTT had erred in applying the relevant law. This was not, as set out in the grounds, Hesham Ali, but HA (Iraq). She submitted that the FTT's reasoning showed that it had not taken into account all of the factors listed at [51] of HA (Iraq) as relevant to a finding on whether there were "very compelling circumstances", in spite of having set them out in full at [68]. These are

 

(i)            the nature and seriousness of the offence committed by the applicant;

(ii)          the length of the applicant's stay in the country from which he or she is to be expelled;

(iii)       the time elapsed since the offence was committed and the applicant's conduct during that period;

(iv)        the nationalities of the various persons concerned;

(v)          the applicant's family situation, such as the length of the marriage, and other factors expressing the effectiveness of a couple's family life [this clearly does not apply, as the appellant is not in a genuine and subsisting relationship with a partner at this time];

(vi)        whether the spouse knew about the offence at the time when he or she entered into a family relationship [this also does not apply];

(vii)     whether there are children of the marriage, and if so, their age;

(viii)   the seriousness of the difficulties which the spouse is likely to encounter in the country to which the applicant is to be expelled [this does not apply];

(ix)        the best interests and well-being of the children, in particular the seriousness of the difficulties which any children of the applicant are likely to encounter in the country to which the applicant is to be expelled; and

(x)          the solidity of social, cultural and family ties with the host country and with the country of destination.

28.         Ms Gilmore initially submitted that factors (i), (ii), (iii) and (x) had been overlooked, but in the course of her submissions, she conceded that (ii) and (x) were both encompassed within Exception 1, and that the FTT had in addition considered length of residence specifically at [70]. In terms of length of time since the offence and the appellant's conduct since, she acknowledged that this would in any event have less salience given that the appellant is in prison and therefore unable to offend, and in addition, the respondent had accepted that there was a "low risk" that he would reoffend.

29.         Ultimately, she focused entirely on the submission that the FTT's assessment had been "one-sided", because the FTT had failed to take into account the nature and seriousness of the appellant's offence. The problem, Ms Gilmore, submitted, was with what the FTT said at [73]:

 

"I wish to deal with the respondent's submission that the appellant is seeking to depart from the sentencing remarks. There is some force in that submission, however whilst it may be indicative of the lack of genuine remorse on the part of the appellant, or his lack of accepting culpability, it doesn't actually make a difference to the ultimate decision that I have to make. I am not required to make a determination as to his culpability and for the purposes of my assessment when dealing with the ultimate decision as to whether very compelling circumstances exist, I look at matters in the round to include the accepted "low risk" of further offending. It is right to say that I was unimpressed with the appellant's evidence in respect of his offending, but I accept his account as to his close bond with all four of his children, and particularly the care that he provides to both [C1 and C2]. The bond and support is consistent with the oral evidence given, to include the unchallenged letter of support of [the mother of the other two children]. The evidence given by all of those that gave oral evidence, is accepted by me. None of the witnesses sought to exaggerate or embellish the case of the appellant. As mentioned above nothing turns on the evidence of [a former client of the appellant's] (although I accept his evidence)."

30.         Although we are grateful to Ms Gilmore for identifying the particular passage in the determination that caused the respondent concern, we would normally have expected this have been done already in the application for permission.

31.         According to Ms Gilmore, the error was evident from the fact that the nature and seriousness of the offence was not specifically mentioned at [73]. It was not enough to refer to the sentencing remarks here, or to have set them out in full at [47] above. The details of the offence should have been set out again, and specific comments made on its nature and seriousness.

32.         We then invited Ms Gilmore to comment on one phrase within this paragraph that we were not confident we understood. This was the comment that "I am not required to make a determination as to [the appellant's] culpability". She submitted that it was ultimately "fatal" to the FTT's decision that it was not clear what this meant, or what role culpability played in the overall assessment. Alternatively and in addition, the paragraph, taken as a whole, demonstrated that the assessment had been "one sided". Either the FTT had not taken into account the nature and seriousness of the offence or it had not put sufficient weight on it.

33.         We asked Ms Gilmore to comment on whether the argument that the FTT had put insufficient weight on the nature and seriousness of the offence could be found in the respondent's grounds. She acknowledged that it could not but argued that it was permissible for the grounds to be drafted at a high level of generality; indeed, she suggested it would be disproportionate to require a party to set out their reasons in full in an application for permission. The grounds had identified in general terms that the error was with the assessment of whether the threshold of very compelling circumstances was met, and this was a permissible clarification of those general grounds.

34.         Mr Alam replied. He argued first that Ms Gilmore's submissions went far beyond a clarification of the grounds. The grounds had challenged the assessment of the impact of deportation on the children, not the assessment of the public interest in deportation. She was raising a new ground, and she should not be permitted to do so without having applied for permission.

35.         With regard to the substance of Ms Gilmore's submissions, he submitted that the respondent was essentially arguing now that more weight should have been put on the seriousness of the appellant's offending, and he pointed out that it was trite that the amount of weight the FTT gives to relevant factors is a matter for the FTT. If the respondent was arguing that the seriousness of the offence had not been taken into account at all, the judge had set out the sentencing remarks in extensive detail at [47] and had referred to them again at [73]. There could be no requirement for the judge to repeat them. Moreover, the FTT had referred in multiple places to the crime being a "serious" one, including at [72] and twice in the final paragraph of the decision, where the FTT referred to the appellant's "serious offending".

36.         He further submitted that the fact that the FTT put considerable weight on the public interest deporting foreign criminals who had committed serious offences could be inferred from the fact that the FTTJ stated twice and in strong terms (at [74] and [78]) that but for C1's and C2's additional needs, the appeal would have been dismissed. We understood him to be arguing that given everything else weighing in the appellant's favour - that Exception 1 and Exception 2 were met, and that the risk of reoffending was low - the FTT could only have formed such a clear view if it had put considerable adverse weight on the offending.

37.         As to the specific reference to being not required to determine culpability, Mr Alam accepted that it was not entirely clear what the FTTJ meant. This might mean that there was no requirement to determine culpability, because that had been a matter for the sentencing judge, whose remarks had been quoted at length. What was important was that the FTT had clearly had the sentencing remarks in mind. Moreover, insofar as the appellant might have tried to revisit his culpability in his oral evidence, the FTT had clearly rejected this, saying "I was unimpressed by the appellant's evidence regarding his offending". Ultimately, the FTT had, as it expressly stated, properly assessed the evidence "in the round".

Discussion

The respondent's grounds of appeal

38.         As a preliminary matter, we remind the parties of the limited jurisdiction of the Upper Tribunal. Section 11(2) of Tribunals, Courts and Enforcement Act 2007 ("the TCEA") specifies that the right of appeal to the Upper Tribunal is only on a "point of law". As set out in Joseph at [13];

"It is [...] essential for an application for permission to appeal to be pleaded by reference to an arguable error of law, not a disagreement of fact or weight. [....] Maintaining the distinction between errors of law and disagreements of fact is essential; it reflects the jurisdictional delimitation between the first-instance role of the FTT and the appellate role of the UT, and reflects the institutional competence of the FTT as the primary fact-finding tribunal. [...] 'The temptation to dress up or re-package disagreement as a finding that there has been an error of law must be resisted.' [citing AE (Iraq) v Secretary of State for the Home Department [2021] EWCA Civ 948].

39.         Moreover, the parties are under a duty to assist the Tribunals in furthering the overriding objective and to co-operate with them, in accordance with Rules 2(4) of the Tribunal Procedure (First-tier Tribunal) (Immigration and Asylum Chamber) Rules 2014 and the Tribunal Procedure (Upper Tribunal) Rules 2008. This duty extends to applications for permission to appeal. Joseph [10]; JOINT PRESIDENTIAL GUIDANCE 2019 No 1: Permission to appeal to UTIAC [29].

40.         When "considering whether to make an application for permission to appeal", a losing party should take into account that:

"[...] although 'error of law' is widely defined, it is not the case that the UT is entitled to remake the decision of the FTT simply because it does not agree with it, or because it thinks it can produce a better one. Thus, the reasons given for considering there to be an error of law really matter." Joseph [14] ( citing UT (Sri Lanka) v Secretary of State for the Home Department [2019] EWCA Civ 1095 at [19]). (emphasis added)

41.         The respondent essentially conceded Ground One at the outset of the hearing before us. As set out briefly below, we consider that she was right to do so. We take this an indication that the grounds may not have been drafted with the above principles clearly in mind.

42.         We are also concerned by the significant difference between how Ground Two was put in the respondent's application for permission to appeal and how it was argued before us. The respondent's application was drafted very broadly, and consisted primarily of a long citation from caselaw, without any effort to identify where in the FTT decision this caselaw had been ignored or misunderstood. To the extent that any error was particularised, we consider that it was that the children's circumstances were not sufficient to reach the high threshold for outweighing the public interest in deportation. In other words, too much weight had been put on the appellant's side of the scale. This is clearly how the grounds were understood by the FTTJ who granted permission.

43.         Ms Gilmore's argument before us was fundamentally different, as detailed above. It was that too little weight had been put on the other side of the scale, namely on the nature and seriousness of the appellant's offending.

44.         Moreover, we reject Ms Gilmore's submission that it was sufficient for the respondent to have identified the legal principle that was said to have been misapplied, without identifying how it had been misapplied. Taken to its logical conclusion, this would allow a party to appeal simply by identifying the key issue in the case (was there family life as defined in Kugathas, for example, or was there sufficient protection as defined in Horvath) and then assert that the FTT was wrong about that. This is not a ground of appeal, but a generalised disagreement.

45.         We have nonetheless decided to deal with the respondent's grounds below.

Whether the FTT made a material error of law

46.         In deciding whether the FTT's decision involved the making of a material error of law, we have reminded ourselves of the principles set out in a long line of cases, including Ullah v Secretary of State for the Home Department [2024] EWCA Civ 201, at [26], Yalcin v SSHD [2024] EWCA Civ 74, at [50] and [51], Gadinala v SSHD [2024] EWCA Civ 1410, at [46] and [47], and Volpi & Anor v Volpi [2022] EWCA Civ 464, at [2-4].

47.         Among the principles we consider most pertinent here are the following:

 

(i)             The FTT (IAC) is a specialist tribunal. It is probable that in understanding and applying the law in its specialised field it will have got it right. Appellate courts should not rush to find misdirections simply because they might have expressed themselves differently.

 

(ii)          It does not matter, with whatever degree of certainty, if the appeal court considers that it would have reached a different conclusion. What matters is whether the decision under appeal is one that no reasonable judge could have reached.

 

(iii)        The validity of the findings of fact made by an FTT judge is not aptly tested by considering whether the judgment presents a balanced account of the evidence. The judge must of course consider all the material evidence (although it need not all be discussed in the judgment). The weight given to the evidence is however pre-eminently a matter for the judge.

 

(iv)        An appeal court can therefore set aside a judgment on the basis that the judge failed to give the evidence a balanced consideration only if the judge's conclusion was rationally insupportable.

(v)          Reasons for judgment will always be capable of having been better expressed. An appeal 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.

 

48.         We have also reminded ourselves of the danger of "island-hopping", rather than looking at the evidence, and the reasoning, as a whole. See Fage UK Ltd & Anor v Chobani UK Ltd & Anor [2014] EWCA Civ 5 [114].

49.         Applying these principles, we are not persuaded that the FTT failed to take into account the nature and seriousness of the appellant's offending, as argued before us. At [47], the FTT included a lengthy excerpt from the sentencing judge's remarks. This included multiple references to the seriousness of the offence. We do not find it necessary to set them out here, but we note that they included comments on the immorality of seeking to defraud a scheme set up during the COVID-19 pandemic, the amount of money stolen, the planning and sophistication involved, the length of time the scheme continued, and that the appellant had offended in spite of being the father of four children, two of whom had significant additional needs. The sentencing judge is quoted as having found that the appellant was of "high culpability" and had played a "leading role".

50.         The FTTJ then clearly had these remarks in mind when making its ultimate assessment. Paragraph [73] not only begins with a reference to the remarks, but later in the paragraph, the FTT returns to those remarks and specifically rejects the appellant's oral evidence that sought to depart from them. In other words, the FTT knew that the sentencing judge considered the offence very serious, and had that in mind when reaching its conclusion in this appeal.

51.         The prolonged discussion before us about what was meant by the phrase "I am not required to make a determination as to his culpability" is an example of the danger identified by the Court of Appeal of subjecting FTT decisions to narrow textual analysis. We agree that the phrase is not entirely clear. It could mean that he FTT was not required to determine that issue, because that had been the role of the sentencing judge (whose specific findings in that regard the FTT had quoted above). It could mean that the FTT did not consider the degree of culpability to be determinative, because, as set out in the remainder of the sentence in question, matters had to be looked at in the round and other factors weighed more heavily, primarily the needs of C1 and C2.

52.         It could also mean that the FTT considered culpability irrelevant, but without clear evidence either from the language used or from the FTT's reasoning as a whole, we reject that interpretation. We do so because this would run directly counter to the principle cited above that it should be presumed that an FTTJ knows and is applying the relevant law. The nature and seriousness of the offence is repeatedly identified in the relevant statute and caselaw as a key element in the assessment of whether the requirements of Section 117C(6) are met. We know that the FTTJ was aware of the content of the statute and caselaw because it was quoted at length in the body of the decision. We cannot find on the basis of one unclear phrase that the FTT nonetheless ignored it.

53.         Ultimately, we conclude that the respondent's actual submission was that the FTT could not have come to the conclusion it did if it had put the necessary weight on the nature and seriousness of the appellant's offending. As noted above, it is trite that weight is a matter for the judge, and that we cannot set aside the decision on the grounds that the FTT's assessment was unbalanced, unless the ultimate conclusion was rationally unsupportable. Ms Gilmore expressly declined to pursue a rationality challenge before us, and we consider that she was right to do so.

54.         Turning to Ground One, we find that this is not made out. The respondent's first specific complaint is a significant misrepresentation of the reasons the FTT gave for finding that the impact of the appellant's removal on C1 and C2 would not only be unduly harsh (as accepted by the respondent) but would, taken together with the rest of the evidence, tip the balance in favour of the threshold of very compelling circumstances being met.

55.         The FTT did not refer only to the appellant's role in the children's lives before he went to prison. Nor did the FTT confine its comments on that role to the three tasks listed in the respondent's grounds (taking the children to school and to social gatherings and assisting with homework). The FTT set out in detail the oral evidence not only of the appellant, but also of C1 and C2's mother and of two other witnesses, one of whom is a learning disability nurse by profession. The FTT also referred to the evidence from the children's school, and to a written statement from the mother of the appellant's other two children. The FTT accepted the credibility of all of this evidence, and the respondent has made no challenge to that credibility finding. This evidence describes the appellant as playing a fundamentally important role in his children's lives and in supporting C1 and C2's mother in her care for them, both practically and emotionally, and includes a discussion of his ongoing relationship with them.

56.         The suggestion that there was a "claim" that the children's mother was "finding life 'hard' without the appellant" is also a significant mischaracterisation of the evidence. This was more than a "claim". The FTT expressly accepted the evidence of the impact of the appellant's imprisonment on C1 an C2's mother that was given by the mother and two other witnesses, all of whom were found credible. This evidence went far beyond a claim that the mother was finding life 'hard'. The evidence the FTT heard and accepted included that she was "drained both emotionally and financially", she was on anti-depressants and her dosage had been doubled [28], and she was suffering "breakdowns" [41].

57.         As to the respondent's comment that "this is no more than is to be expected when a parent is imprisoned", in the first place it appears to be some form of "notional comparator" test, such as was comprehensively rejected in HA (Iraq). Moreover, it ignores the considerable evidence about the difficulties of raising these two particular children, with their additional needs. In other words, even if it were permissible to apply a notional comparator test (which it is not), it is simply wrong on these facts to suggest that the difficulties this family faced "were no more than to be expected" in the general run of cases.

58.         Finally, we consider it also inaccurate to suggest that there was no finding that the children's situation would be different if the appellant were deported. The FTT did make an express finding at [77] that an "indefinite" separation could be very damaging. Bearing in mind the evidence before the FTT, moreover, this was a finding that it was open to the judge to make. The evidence before the FTT was that the appellant speaks to all four children "where possible on a daily basis" [20], that C1 and C2 visit him in prison [22], [33], and that their mother considered that given their needs, travelling to Nigeria to visit him would be impossible [77] The difference between imprisonment and deportation under such circumstances is"obvious", as the Court of Appeal pointed out in Sicwebu v SSHD [2023] EWCA Civ 550 at [63] ( "there is an obvious and fundamental difference between the appellant being in prison and the appellant being deported. Prison was temporary and short-lived, and the children could visit easily. Deportation posed a more permanent rupture to this family and the children's relationship with their father.") It is not conceivably an error of law for the FTT to not have spelled out the reasoning behind its finding on this issue at greater length.

59.         For these reasons, we find that neither of the grounds are made out.

Notice of Decision

The decision of the FTT promulgated on 27 November 2024 contains no material error of law and is upheld, with the consequence that the appellant's appeal against the respondent's refusal of his human rights claim remains allowed.

 

 

E. Ruddick

 

Judge of the Upper Tribunal

Immigration and Asylum Chamber

 

 

25 March 2025