The Secretary of State for the Home Department v Darius Hirtie [2026] EWCA Civ 1000

Neutral Citation Number: [2026] EWCA Civ1000Case No CA-2025-001736
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE UPPER TRIBUNAL
(IMMIGRATION AND ASYLUM CHAMBER)
Upper Tribunal Judge O’Callaghan and
Deputy Upper Tribunal Judge Kudhail
UI-2025-000533
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate 30 July 2026
Before
LORD JUSTICE MOYLANLORD JUSTICE STUART-SMITHLORD JUSTICE LEWIS
Between
THE SECRETARY OF STATE FORAppellantTHE HOME DEPARTMENTAppellantDARIUS HIRTIERespondent
Zane Malik KC and Paul Skinner (instructed by Government Legal Department) for AppellantBenjamin Hawkin and Susana Ferrin (instructed by TMC Solicitors Ltd) for RespondentHearing Hearing dates: 17-18 June 2026
Approved JudgmentThis judgment was handed down remotely at 10.30am on 30 July 2026 by circulation to the parties or their representatives by e-mail and by release to the National Archives..............................

Introduction

[1]The Respondent, Mr Hirtie, is a foreign criminal as defined by section 32(1) of the UK Borders Act 2007 (“the 2007 Act”). This second appeal arises from the Appellant SSHD’s deportation decision dated 28 September 2023, which was made after she had rejected Mr Hirtie’s human rights claim. Mr Hirtie appealed to the First-tier Tribunal (FtT), which allowed his appeal by a decision dated 29 December 2024. The Secretary of State (SSHD) appealed from the FtT to the Upper Tribunal (UT), which upheld the FtT’s decision on 1 May 2025. The SSHD now appeals with leave to this court.

Factual and procedural background

[2]Mr Hirtie is a Romanian national who was born 24 August 1998 and is now aged 27. He entered the UK in 2016/17 and was subsequently granted leave to remain until April 2026 under the EU Settlement Scheme. He has a partner, who is also a Romanian national and with whom he has two children. The older child was born in Romania in May 2019; the younger child was born in the UK in January 2022.[3]Mr Hirtie has two convictions. On 29 September 2021, he was convicted of driving with excess alcohol, using a vehicle while uninsured and possession of a knife in a public place. He was given a community order and was disqualified from driving for 17 months. On 11 August 2022 at Lewes Crown Court, having pleaded guilty, he was convicted of one count of section 18 wounding with intent. He was sentenced to 39 months’ imprisonment, consisting of 3 years for the section 18 offence (after a 25% reduction on account of his guilty plea), and 3 months consecutive for the breach of the community order. He was released on 27 February 2024 and remained on licence until 13 October 2025. The facts of the section 18 wounding are not important.

The deportation decision

[4]I note at the outset that the SSHD’s decision letter (“DL”) was formulated by reference to the provisions of the Immigration Rules that reflected the provisions of section 117C(4)-(6) of the Nationality, Immigration and Asylum Act 2002 (“the 2002 Act”), to which I refer later. Nothing turns on the adoption of the Immigration Rules in this way as they accurately replicate the requirements of the Statute.[5]The DL first set the scene and then stated the basic framework at DL19:
“Your deportation is conducive to the public good and in the public interest because you have been convicted of an offence for which you have been sentenced to a period of imprisonment of less than four years but at least 12 months. Therefore, in accordance with part 13.2.1 of the Immigration Rules, the public interest requires your deportation unless an exception to deportation applies. The exceptions are set out at parts 13.2.3 or 13.2.4 of the Immigration Rules.”
[6]The DL then addressed the question of family life with children at DL20-32. At DL23 the letter referred to section 55 of the Borders, Citizenship and Immigration Act 2009 (“the 2009 Act”) and stated that the best interests of Mr Hirtie’s children had been a primary consideration in making the decision. DL24 stated that “consideration has been given below to the effect deporting you will have on your children and to whether the best interests of your children outweigh the public interest in deporting you.”[7]The DL set out at DL25 the requirements of the exception to deportation based on family life with children, as stated in part 13.2.5 of the Immigration Rules. The exception applies where:
“(a) the relationship is genuine and subsisting; and (b) the child is either a British citizen or has lived in the UK continuously for at least the 7 years immediately before the date of the decision to make the deportation order; and (c) the child is at the date of the decision to make the deportation order resident in the UK; and (d) it would be unduly harsh for the child to live in the country to which the foreign national is to be deported; and (e) it would be unduly harsh for the child to stay in the UK without the foreign national who is to be deported.”
[8]The DL then addressed the constituent elements of the exception in turn: i) As to (a), it accepted that Mr Hirtie had a genuine and subsisting relationship with his children: DL26; ii) As to (b) it was not accepted that either child was a British citizen or had lived in the UK continuously for 7 years. However, as to (c), from the evidence submitted the SSHD believed that both children were in the UK and were under the age of 18: DL27.[9]The DL then said (emphasis added, here and subsequently):
“28. It is not accepted that it would be unduly harsh for your children to remain in the UK in the event you are to be deported. [The older child] was born in Romania and has a Romanian birth certificate. He has Limited Leave to Remain in the UK as does his mother … . It is not expected that he would leave the UK in the event of your deportation. It is not believed [the younger child] is a British Citizen as there is no evidence to indicate that [she] has valid leave to remain in the UK or is a British Citizen. However, because of her age there is no indication that she would return to Romania with you and would remain in the UK with her mother Maria. They would not be compelled to leave the UK. 29. It would not be unduly harsh for [the older child] to remain in the UK without you. [He] can pursue an education in the UK, and if he wished would be able to join you in Romania, as well as support himself in the UK when he is of age. There is no evidence that [he] is reliant on you, as evidenced in your partner’s letter of support dated 29 April 2023. In the letter she explains that she is working part-time to support [the older child] and his sister … , as well as accessing state support such as benefits and food bank vouchers. Additionally, there is no evidence that you would be unable to contribute financially to [the older child’s] care via bank transfer, once settled in Romania. 30. It would also not be unduly harsh for [the younger child] to be separated from you. Her mother Maria is her primary carer and has been caring for her whilst you have been in prison. From the evidence submitted, [she] is not believed to be a British Citizen and doesn’t appear to have any valid leave in the UK, however she is only 1 year 7 months old and has been cared for by her mother who has Limited Leave to Remain. There is no evidence that [the younger child] is reliant on you financially. [Your partner] has demonstrated she is able to care for [the younger child] financially also by working part-time and accessing state benefits. This would continue in the event that you are deported. Additionally, you can maintain contact through modern means of communication as well as provide support financially through means such as bank transfer. 31. Therefore, having considered all available information, it is not accepted that you meet the requirements of the exception to deportation on the basis of family life with a child. 32. This decision does not prescribe any particular outcome for your children. The result of this decision means that you and your partner are required to make a decision about whether your children accompany you to Romania or remain in the UK.”
[10]At DL33 the DL then addressed the exception based on family life with a partner as stated in part 13.2.6 of the Immigration Rules. The exception applies where:
“(a) the foreign national’s relationship with the partner is genuine and subsisting; and (b) the partner is either a British citizen or is settled in the UK; and (c) the partner is resident in the UK; and (d) the relationship did not begin when the foreign national to be deported was in the UK unlawfully or when their immigration status was precarious; and (e) it would be unduly harsh for that partner to live in the country to which the foreign national is to be deported; and (f) it would be unduly harsh for that partner to stay in the UK without the foreign national who is to be deported.”
[11]The DL then followed the same pattern of addressing each constituent element in turn, though in a slightly different order, the difference not being material: i) As to (a), it was accepted that Mr Hirtie’s relationship with his partner was genuine and subsisting: DL34; ii) As to (b), it was not accepted that his partner was either a British citizen or was settled in the UK: DL35; iii) However, as to (c), it was noted that Mr Hirtie’s partner was believed to be in the UK due to her having limited leave to remain in the UK until February 2026 (wrongly stated here to be 2025): DL35.[12]The DL then said:
“36. [Your partner] has Limited Leave to Remain in the UK until 25 February 2026, It is therefore, not expected that she would leave the UK with you as she is the primary carer for your two children who are currently living in the UK. 37. It would not be unduly harsh for [your partner] to remain in the UK without you. [She] has demonstrated that she has been able to care for and provide for both herself and the children while you have been serving your custodial sentence, and would continue do so when you are deported. It is also stated in the supporting letter from your Aunt … that she has been providing support to [your partner] and [the children] whilst you have been serving your custodial sentence and this would be able to continue also. 38. Therefore, having considered all available information, it is not accepted that you meet the requirements of the exception to deportation on the basis of family life with a partner.”
[13]I have highlighted the passages in the DL from which it is immediately obvious that the SSHD’s whole approach was founded on the assumed basis that Mr Hirtie’s partner and children would not be going to live with Mr Hirtie in Romania but would be remaining in the United Kingdom: see DL28, 29, 30, 32, 36 and 37. DL32 does not detract from those assumptions. At no point did the SSHD suggest that it would not be unduly harsh for the children or their mother to live in Romania. The structure of the SSHD’s reasoning is clear beyond argument: the possibility of Mr Hirtie’s partner and children going to live in Romania was simply not in issue even if, in DL32, the possibility was left open that the children (and, presumably, their mother) might choose to accompany Mr Hirtie, now or later.[14]DL39 ff then addressed Mr Hirtie’s case on private life, once again setting out the requirements of the private life exception to deportation as set out in the Immigration Rules at 13.2.3. The exception applies where:
“(a) the foreign national has been lawfully resident in the UK for most of their life; and (b) they are socially and culturally integrated in the UK; and (c) there would be very significant obstacles to their integration into the country to which they are to be deported.”
[15]The three elements were considered in turn and the SSHD found that none was satisfied. The exception therefore did not apply.[16]The next heading addressed by the DL was “Other Very Compelling Circumstances.” At DL46 ff the SSHD addressed Mr Hirtie’s convictions, which she said gave rise to “the very significant public interest in deporting you” and which meant that he would need to provide evidence of a very strong Article 8 claim over and above the circumstances described in the exceptions to deportation. The DL said that all the known facts of the case had been considered, itemising Mr Hirtie’s representations in respect of family life with his two children and his partner, his relationship with his partner, length of residence, age on arrival, any medical conditions and the perceived strength of connections both to the UK and Romania. It was not accepted that there were very compelling circumstances which outweighed the public interest in his deportation. The conclusion was therefore that Mr Hirtie’s deportation would not breach the UK’s obligations under Article 8 because the public interest in deporting him outweighed his right to private and family life: DL53. Nothing in the rest of the DL disturbed the assumed basis of the SSHD’s decision to which I have referred in [13] above.

The appeal to the FtT

[17]On 23 October 2023 Mr Hirtie appealed to the FtT against the SSHD’s decision. His appeal was listed to be heard on 12 February 2024 but that hearing was ineffective and was adjourned for the SSHD to consider her position on whether Mr Hirtie was eligible for settled status and whether the younger child was a British citizen or eligible for British citizenship. The record of the hearing refers to a skeleton argument which was served on all parties. That is a reference to the skeleton argument on behalf of Mr Hirtie dated 5 February 2024, which was prepared in anticipation of there being a substantive hearing on 12 February. The skeleton argument identified the issue for the tribunal as being that the SSHD did not dispute the relationships claimed but did dispute that the unduly harsh test was met and that there were very compelling circumstances. The skeleton listed “Matters Not in Dispute”. Those matters included Mr Hirtie’s criminal history, the genuineness and subsistence of his relationships with his partner and his children and that “it would be unduly harsh for [the older child] to leave the UK.” It then listed “Matters in Dispute”. Those matters included “whether it would be unduly harsh for [his partner] to remain in the UK without [Mr Hirtie]”, “whether it would be unduly harsh for the children to remain in the UK without [Mr Hirtie]” and “whether there are “very compelling circumstances” over and above those relied upon above”.[18]On 11 March 2024 the SSHD wrote that it was not accepted that the younger child had acquired British citizenship at birth. No additional issues were raised. The appeal was then re-listed to be heard by the FtT on 26 April 2024. That hearing was adjourned with a direction for the SSHD to use her best endeavours to obtain HMRC/DWP records for Mr Hirtie. After HMRC had provided some further information in July, there was a Case Management Review hearing in September before the FtT at which further directions were given. The full hearing of the appeal took place before FtTJ Stedman on 11 December 2024. The Judge provided his written decision on 29 December 2024, allowing Mr Hirtie’s appeal.[19]It is plain that the question of Mr Hirtie’s partner and the children going to Romania was not raised as an issue at any stage during the FtT proceedings either before or at the substantive hearing. There is no sign or trace of the SSHD having raised the question or having in any way questioned the statement in the skeleton argument that it was not in dispute that it would be unduly harsh for the older child to leave the UK. Specifically, there is no information to suggest that the SSHD had submitted a review following receipt of Mr Hirtie’s skeleton. The position now remains as it was before the FtT: there is no evidence of the SSHD contending before the FtT or at any stage before submitting her grounds of appeal from the FtT to the UT that it would not be unduly harsh to expect the Mr Hirtie’s partner and their children to accompany Mr Hirtie to Romania. That explains why the FtT Judge said in his judgment that “The sole issue in this appeal is the impact on the family unit in the UK and not whether the appellant has family support in Romania”. The Judgment is consistent with that approach throughout. Mr Hawkin, who represented Mr Hirtie before the FtT as he has before us, was frank in saying that he did not have a detailed recollection; but, such as it was, his recollection was that the question of the family relocating to Romania was not raised. Neither Mr Malik KC nor Mr Skinner appeared in the FtT and were not in a position to contradict Mr Hawkin’s recollection either on instructions or otherwise. Mr Hawkin’s recollection is consistent with everything else that we know about the conduct of the appeal in the FtT and I would accept it as being accurate.

The FtT judgment

[20]As a general observation, the FtT Judge’s decision is concise and clearly expressed. Having set out the historical background the Judge addressed Private and Family Life at [J9]-[J14]. He started by stating his conclusion that Mr Hirtie could not meet the private life exception to deportation as set out at part 13.2.3 of the Immigration Rules. He then held that Mr Hirtie’s partner was not a “qualifying partner” for the purposes of part 13.2.6 of the Immigration Rules but that the SSHD accepted that she was in a genuine and subsisting relationship with the appellant. He recorded the SSHD’s conclusion that it would not be unduly harsh for her to remain in the UK without Mr Hirtie. Turning to the children, he held that they are not “qualifying children” under part 13.2.5 of the Immigration Rules. The SSHD did not accept that his partner and children are financially and emotionally dependent on Mr Hirtie or that his deportation would have a severe impact on them and it was not accepted that it would be unduly harsh for them to remain in the UK in the event that Mr Hirtie was to be deported.[21]Turning to the legal framework the Judge provided a brief summary at [J16]-[J23] in which he recorded that it was agreed that Exceptions 1 and 2 as set out in section 117C(4) and (5) of the 2002 Act did not apply. He correctly identified that the core legislative provisions were those set out in section 117C and that a structured approach to the application of Article 8 should be adopted. He identified the test that he had to apply at [J20] as follows:
“The test of undue harshness under section 117C(5) of the 2002 Act bears the meaning attributed to it by the Supreme Court in KO (Nigeria) [2018] UKSC 53. I have noted the very high bar to be applied to the test of very compelling circumstances as per OH (Algeria) v SSHD [2019] EWCA Civ 1763.”

The Judge then reminded himself at [J21] of the provisions of section 117C:

“It is agreed that Exception 1 and 2 as set out in section 117C(4) & (5) do not apply in this appeal. However, the mandatory considerations in section 117C namely (1) the deportation of foreign criminals is in the public interest and (2) the more serious the offence committed by a foreign criminal, the greater is the public interest in deportation of the criminal, apply as governing principles.”
[23]At [J22] the Judge acknowledged that “the deportation of a parent will invariably be harsh and have a negative impact on the welfare of a child”; and that “the public interest must be accorded very significant weight if deportation is to serve its purpose and act as a deterrent: Hesham Ali.”[24]The Judge set out his “Findings and Reasons” at [J24] ff. In doing so, he conducted what he described as a balancing exercise. At [J24]-[J29] he identified the seriousness of the offence of which Mr Hirtie had been convicted, that he was not settled in the UK and that he had been in the UK since 2016. He confined himself to the fact of the conviction and the sentence imposed and excluded the presence or otherwise of family in Romania as having any bearing on the outcome. The sole issue in the appeal, as referred to above, was the impact on the family unit in the UK and not whether Mr Hirtie had family support in Romania.[25]Having held that the support that Mr Hirtie’s brother had given while he was in prison could not be continued in the long term, he said, at [J30]:
“With the factors and framework applicable to deportation cases clearly in mind I turn to consider the specific facts in this appeal on the appellant’s side of the balance and, whether cumulatively, they are sufficient to outweigh the public interest in deportation and ultimately whether it would be unduly harsh for the appellant’s partner and children to be separated from him.”
[26]He concentrated first on Mr Hirtie’s partner:
“31. … She is a young mother, presently aged 25. She has a profoundly difficult and traumatic past having lost her parents at a young age and being raised in an orphanage. [She] continues to suffer with anxiety and depression as confirmed in the letter from Healthy Minds This appears to be a reference to a letter from Health in Mind dated 20 November 2024. . 32. [She] has very limited family members to offer her any support either in the UK or Romania. Her family is essentially the appellant’s family. She also bears responsibility for two young children which is a major commitment for a woman without family support, with underlying mental health issues, with limited income and means, and with a history of a loss of family. The combination of these factors would undeniably place her in an extreme state of loss and isolation if her partner was to be removed from the country. 33. It is true that while the appellant was in prison that she coped. That was because the separation for a period of just over a year and a half during which family members, especially the appellant’s brother rallied around the appellant and what were two very young children. It was, at that time, an urgent and immediate need. The position now is markedly different. Not only have the appellant and his family resumed their family life for nearly a year, but the result of the deportation would a very long-term separation with a dramatic shift in each member’s reality. 34. I find that [she] would be unable to cope with the permanence of the separation in emotional or practical terms or, that the appellant’s brother would be able to offer long term support as he previously has in the time the appellant was in prison. 35. While the practical challenges of life would undoubtedly be difficult, I do not view them as insurmountable. Ultimately, [she] and her children would likely manage, although I anticipate that they would increasingly rely on public resources over time. The real issue, however, lies in the emotional impact. The removal of the appellant would significantly affect [her] mental health, and this in turn, would have a direct and negative effect on the children, given that she is and would remain their primary caregiver. 36. I find that [her] personal history and mental makeup are such that the removal of the appellant — effectively removing him from any meaningful role in the family — would have a profoundly detrimental impact on her, particularly in the light of her past experiences. Having spent much of her life grappling with the loss of her own parents, she would now face another significant loss, watching her children endure the absence of a parent. 37. I have no doubt that the impact on [her] will be severe. However, I would not have reached this conclusion without considering the presence and well-being of the children. It is crucial to assess the effect on [her], as her well-being forms the foundation for the well-being of her children. In my view, this is the core of the case and a key factor that, by a narrow margin, establishes very compelling circumstances.”

The Judge then turned to consider separately the impact on the children:

“38. Turning to consider the impact on the children, I am mindful that the consequences of deportation are particularly difficult for children, who often bear the burden of their parents' actions. This is a universal reality, not limited to cases involving deportation alone. I find that both children will suffer adverse effects, not just in the immediate future, but for many years to come, should the appellant be deported. While this is an unfortunate and legally accepted reality, the lasting impact on the children cannot be overlooked. 39. I acknowledge that for [the older child], the deportation of his father will be particularly difficult, especially given his age, his stronger attachment to his father, and his increased need for a paternal figure. I recognize that the appellant has genuine potential as a father, despite the conviction, and I am acutely aware of the long-term impact on children of growing up without their fathers. However, after careful consideration, I assign this factor only limited additional weight, as I would in any case, recognizing that hardship is an inevitable consequence for the entire family.”
[28]He then set out his conclusions:
“40. I have made every effort to approach this case impartially, while giving due consideration to the specific circumstances and vulnerabilities of the individuals involved, particularly [Mr Hirtie’s partner], and the challenges posed by the separation. I find that the impact of the separation on [her] is profound, going beyond undue hardship. It constitutes exceptionally compelling circumstances, particularly when viewed in the context of her own difficult childhood and the significant responsibility she has raising two young children without identifiable emotional support. 41. For the reasons given, the appellant’s deportation would amount to a disproportionate interference with his family life, and that of his partner and children and I accordingly allow the human rights appeal.”

The UT hearing and judgment

[29]The SSHD’s grounds for appeal identified one main ground of appeal, with five sub-grounds. The main ground was:
“Making perverse or irrational findings on a matter or matters that were material to the outcome & failing to take into account and/or resolve conflicts of fact or opinion on material matters.”
In the second of the five sub-grounds, the SSHD said: “The position held in the decision to deport is that it would not be unduly harsh for his partner and children to remain in the UK and that it is open for them to join him in Romania. This would have formed the Presenting Officer’s submissions with their reliance on the decision letter … . The FTTJ has not addressed the latter point other than to incorrectly state that the “sole” issue of the appeal concerns the family’s existence in the UK and not the support available in Romania”.[30]The next sub-ground made supplementary submissions about the potential relocation to Romania, asserting that “there is nothing preventing the family unit from relocating to their country of nationality and citizenship, which arguably would be in their best interests overall due to [Mr Hirtie’s] inability to remain in the UK owing to his criminality … .” This aspect of the SSHD’s Grounds became known as Ground 1 and the prospect of the family relocating to Romania as the “go” scenario. The rest of the sub-grounds challenged the FtT’s findings of fact, complaining in particular of the absence of medical evidence about the mental health of Mr Hirtie’s partner. That came to be referred to as Ground 2.[31]At the commencement of the UT hearing the presiding Judge, UTJ O’Callaghan took stern exception to the formulation of Ground 1 with its reference to how the Presenting Officer would have presented the case to the FtT, which he regarded as misleading. The end result was that the Senior Presenting Officer who was appearing for the SSHD agreed that Ground 1 (i.e. the ground complaining that the FtT had not dealt with the “go” scenario) should be withdrawn. The withdrawal was unequivocal, albeit in the face of a heavy judicial headwind.

The UT judgment

[32]The UT judgment recorded the withdrawal of Ground 1 and gave short substantive consideration to Ground 2. The UT rejected the submission that medical evidence was necessary to substantiate the effects on the partner that the FtT had found. It also rejected the assertion that the FtT’s conclusions were based on pure conjecture. It upheld the validity of the FtT’s conclusion that there were very compelling circumstances by reference to the “profoundly detrimental” impact separation would have upon her mental health. “The Judge expressly noted the significant adverse impact of watching her children enduring the absence of a parent would have upon a mother whose mental health concerns are rooted in losing her parents at a young age and being raised in an orphanage. The second ground fails to engage with these findings.” The UT concluded that Ground 2 amounted to no more than an effort to reargue the SSHD’s case and that the decision of the FtT was not subject to any material error of law.

Grounds of Appeal to the Court of Appeal

[33]The SSHD advances two grounds: i) Ground 1: the FtT erred in law by failing to consider the seriousness of the difficulties that Mr Hirtie’s partner and children are likely to encounter in relocating to Romania with him. ii) Ground 2: the FtT’s conclusion that there are very compelling circumstances is legally flawed, inadequately reasoned, and perverse.[34]At the permission stage, Mr Hirtie objected to leave being given on Ground 1 on the basis that it was unarguable because the “go” scenario formed no part of the SSHD’s decision, had not been in issue before the FtT and had been withdrawn as a potential ground before the UT. On this basis Mr Hirtie submitted that permission should be refused on Ground 1. When granting permission, Warby LJ stated that his decision was not intended to foreclose the answer to whether as a matter of principle and practice the court could and should give a party leave to advance an argument that had been withdrawn in the court below.

The legal framework

[35]I gratefully adopt the summary of the legal framework provided by Lewis LJ at [8]-[23] of SSHD v Collins Cuthbert Lewis [2026] EWCA Civ 879, which was listed and heard at the same time and before the same constitution as Mr Hirtie’s case. I have annexed Lewis LJ’s summary as an appendix forming part of this judgment. I will refer to other relevant legal provisions as necessary for the decision in the present case.

The SSHD’s submissions – Ground 1

[36]On Ground 1, Mr Malik KC on behalf of the SSHD submits that the FtT (and, on appeal, the UT) was bound to consider the question of the “go” scenario even if it had formed no part of the SSHD’s case in making her decision or in the appeal to the FtT.[37]In support of that submission Mr Malik relies on the mandatory terms of Section 117A(2)(b) of the 2002 Act which provides that “in considering the public interest question, the court or tribunal must (in particular) have regard … in cases concerning the deportation of foreign criminals, to the considerations listed in section 117C”. Section 117C(5) introduces the consideration that “the effect of C’s deportation on the partner or child would be unduly harsh” and the formulation of the criteria for Exception 2 to apply in parts 13.2.5 and 13.2.6 of the Immigration Rules (which I have set out above) make clear that the consideration includes both the “stay” scenario and the “go” scenario.[38]In the present appeal, it is common ground that the requirements of Exceptions 1 and 2 were not satisfied (as the children were not qualifying children because they had not lived in the United Kingdom for seven years) and that the test to be satisfied was that there were “very compelling circumstances over and above those described in Exceptions 1 and 2”. In that context, Mr Malik relies upon part of para 51 of HA (Iraq) v SSHD [2022] UKSC 22, [2022] 1 WLR 3784, which he submits is expressed in mandatory terms that cover the present position precisely. For reasons that will appear, the partial citation advanced by the SSHD needs to be seen in context.[39]Mr Malik relies upon the use in para 51 of HA (Iraq) of the mandatory terms “will be considered” and “will include”; and the references to the difficulties the spouse or children will encounter “in the country to which the applicant is to be expelled.” In response, Mr Hirtie submits that the contextual references to the weight to be attached to relevant factors and competing considerations, and the acceptance of a margin of appreciation of the national authorities, demonstrate that there is no rigid straitjacket of conformity that requires each of the bullet-pointed considerations to be relied upon or expressly considered: what must be considered are the matters that are to be material to the Article 8 proportionality balancing exercise.[40]Mr Malik submits that there was no concession by the SSHD that the “go” scenario would be unduly harsh for Mr Hirtie’s partner or children. Even if it had been, the logical consequence of the SSHD’s submissions on Ground 1 would be that the FtT was in breach of a statutory obligation to consider the “go” option. For this obligation to have any purpose or relevance at all, it must be open to the FtT to reject the concession and to decide for itself that the “go” option would not be unduly harsh for Mr Hirtie’s family. Mr Malik did not shrink from this conclusion.[41]Mr Malik relied upon the decision of this Court in SSHD v Borges [2025] EWCA Civ 784. Borges was a deportation appeal under the Immigration (European Economic Area) Regulations 2016 (“the 2016 Regulations”). The FtT had held that the applicant was entitled to the highest level of protection from deportation under the 2016 Regulations (which reflected the terms of the Parliament and Council Directive 2004/38/EC) and that the Secretary of State had not advanced imperative grounds of public security in her decision. The UT upheld the FtT’s decision. On the SSHD’s appeal to this Court, the appeal succeeded: the applicant was not entitled to the highest level of protection because Regulation 27(4) of the 2016 Regulations did not apply to him: that was the substance of Ground 1 in that appeal. The Court went on to consider Ground 2, which raised the question whether the UT had erred in upholding the decision of the FtT that there were no imperative grounds of public security. Mr Malik relies upon [119] of the decision where Elisabeth Laing LJ (with whom Snowden and Baker LJJ agreed) said:
“119. The first question under ground 2 is whether the FtT erred in law in its approach to imperative grounds of public security. The starting point is that, in scheme of the Directive and of the Regulations, the factors which are relevant to the “serious grounds” and “imperative grounds” tests are exactly the same. I reject Mr Karim’s submission to the contrary. The difference between the two tests is only that the second test requires them to be present in a stronger form than does the first test. I accept Mr Malik’s submission that the FtT was bound by regulation 27(8) to take into account, in particular, the considerations in Schedule 1, and that it was bound to do so whichever of the two tests it was applying. The fact that the Decision did not refer to the second test is not because the Secretary of State conceded that the second test was not met, but because the Secretary of State did not consider that it was relevant. The FtT, having decided that the second test applied, was obliged by regulation 27(8) to consider for itself whether that test was met, having regard, in particular, to the considerations in Schedule 1 to the Regulations, and to give reasons for that decision. It did not do so. It therefore erred in law.”
[42]Arguing by analogy, Mr Malik submits that the SSHD in the present case did not address the difficulties that Mr Hirtie’s partner and children would face if they relocated to Romania because she considered that the issue did not arise in light of her earlier conclusions: it was not because she intended to concede that relocation would be impossible or that it would give rise to very compelling circumstances. On this basis, once the FtT concluded that separation would otherwise lead to very compelling circumstances, it was obliged to consider for itself the seriousness of the difficulties that would be faced if the partner or the children relocated to Romania.[43]In response to Mr Hirtie’s submission that the SSHD should not be entitled to rely upon Ground 1 because it is a new point, Mr Malik submits that there is no reason to suppose that the SSHD made no reference to the impact on Mr Hirtie’s partner or children because she intended to concede that it would be unduly harsh for them to live in Romania. He submits that the UT subjected the SSHD’s representative to “relentless criticism” that was neither fair nor justified. In the circumstances, though he accepts that there was an obligation upon the SSHD to articulate all of the reasons for her decision and that the policy of finality in litigation is of fundamental importance, he submits that this Court has a general discretion whether to allow new points to be taken on appeal.

Mr Hirtie’s submissions – Ground 1

[44]Mr Hirtie submits that the SSHD’s approach ignores the now-entrenched principles according to which modern litigation is to be conducted. Those principles are most clearly expressed in Lata (FtT: principal controversial issues) [2023] UKUT 163 (IAC) and suitably summarised in the headnote:
“1. The parties are under a duty to provide the First-tier Tribunal with relevant information as to the circumstances of the case, and this necessitates constructive engagement with the First-tier Tribunal to permit it to lawfully and properly exercise its role. The parties are therefore required to engage in the process of defining and narrowing the issues in dispute, being mindful of their obligations to the First-tier Tribunal. 2. Upon the parties engaging in filing and serving a focused Appeal Skeleton Argument and review, a judge sitting in the First-tier Tribunal can properly expect clarity as to the remaining issues between the parties by the date of the substantive hearing. 3. The reformed appeal procedures are specifically designed to ensure that the parties identify the issues, and they are comprehensively addressed before the First-tier Tribunal, not that proceedings before the IAC are some form of rolling reconsideration by either party of its position. 4. It is a misconception that it is sufficient for a party to be silent upon, or not make an express consideration as to, an issue for a burden to then be placed upon a judge to consider all potential issues that may favourably arise, even if not expressly relied upon. The reformed appeal procedures that now operate in the First-tier Tribunal have been established to ensure that a judge is not required to trawl though the papers to identify what issues are to be addressed. The task of a judge is to deal with the issues that the parties have identified. 5. Whilst the Devaseelan guidelines establish the starting point in certain appeals, they do not require a judge to consider all issues that previously arose and to decide their relevance to the appeal before them. A duty falls upon the parties to identify their respective cases. Part of that process, in cases where there have been prior decisions, will be, where relevant, for the parties to identify those aspects of earlier decisions which are the starting point for the current appeal and why. 6. The application of anxious scrutiny is not an excuse for the failure of a party to identify those issues which are the principal controversial issues in the case. 7. Unless a point was one which was Robinson obvious, a judge's decision cannot be alleged to contain an error of law on the basis that a judge failed to take account of a point that was never raised for their consideration as an issue in an appeal. Such an approach would undermine the principles clearly laid out in the Procedure Rules. 8. A party that fails to identify an issue before the First-tier Tribunal is unlikely to have a good ground of appeal before the Upper Tribunal.”
[45]The decision and principles in Lata have been endorsed by this Court: see AL v SSHD [2026] EWCA Civ 370: see [6], [71-83]. At [89] Elizabeth Laing LJ (with whom the President of the Family Division and Holgate LJ agreed) summarised the position as follows:
“It is clear from Lata that it is an appellant’s responsibility to put all her arguments before the FtT. It is her duty to identify the points which the FtT is required to resolve in order to decide the appeal. The UT in Lata described those as ‘the principal controversial issues’. That formula is often used in public law to define the duty of a tribunal or other decision-maker to give reasons … . There is therefore a deliberate symmetry, on the reasoning in Lata, between the parties’ duty to identify the main issues for the FtT, and the FtT’s duty to explain what it has made of those issues. The FtT must decide those issues, and give reasons for its decision on them. But the FtT can only decide them, and is only obliged to decide them, if the parties expressly identify them.”
[46]In support of this submission, Mr Hirtie relies upon the terms of the Tribunal Procedure (First-tier Tribunal) (Immigration and Asylum Chamber Rules 2014 (“the 2014 Rules”). In particular he relies upon Rule 2(4), which requires the parties to help the Tribunal to further the overriding objective and to co-operate with the Tribunal generally, and Rule 24A which lays down steps to be taken by the parties including the provision requiring the respondent to provide to the Tribunal and the appellant a written statement of whether the respondent opposes all or part of the appellant’s case and if so the grounds for such opposition.[47]Mr Hirtie submits that it was open to the SSHD not to rely on the “go” scenario as part of her decision-making process. Once his appeal was launched, it was incumbent on the SSHD to identify the main issues for the FtT but she did not identify the “go” scenario as part of her case or the issues in the appeal at any stage. In fact she went further by not contradicting the assertion in Mr Hirtie’s 5 February 2024 skeleton that the “go” scenario was not an issue in the appeal and that it was not in dispute that it would be unduly harsh for the older child to leave the UK. In those circumstances the FtT was entitled and right to treat the “go” scenario as not being an issue that it had to consider; nor, in those circumstances, was the point required to be considered as being Robinson obvious. Since the FtT was not required to consider the issue, its failure to do so cannot be regarded as an error of law.[48]In addition, Mr Hirtie submits that the SSHD should not now be permitted to advance a ground of appeal that was unequivocally withdrawn in the UT.[49]Even if the SSHD survives that hurdle, Mr Hirtie submits that the principles to be applied are those summarised by Haddon-Cave LJ in Singh v Dass [2019] EWCA Civ 360 at [15]-[18]:
“15. The following legal principles apply where a party seeks to raise a new point on appeal which was not raised below. 16. First, an appellate court will be cautious about allowing a new point to be raised on appeal that was not raised before the first instance court. 17. Second, an appellate court will not, generally, permit a new point to be raised on appeal if that point is such that either (a) it would necessitate new evidence or (b), had it been run below, it would have resulted in the trial being conducted differently with regards to the evidence at the trial (Mullarkey v Broad [2009] EWCA Civ 2 at [30] and [49]). 18. Third, even where the point might be considered a 'pure point of law', the appellate court will only allow it to be raised if three criteria are satisfied: (a) the other party has had adequate time to deal with the point; (b) the other party has not acted to his detriment on the faith of the earlier omission to raise it; and (c) the other party can be adequately protected in costs. (R (on the application of Humphreys) v Parking and Traffic Appeals Service [2017] EWCA Civ 24; [2017] RTR 22 at [29]).”
[50]Applying those principles to the present case,(a) resolution of the “go” scenario issue now would necessitate new evidence directed specifically to the impact on Mr Hirtie’s partner and children of relocating to Romania;(b) had it been run below, it would have resulted in the appeal to the FtT being conducted differently because Mr Hirtie would have had to satisfy the FtT of a factual issue (the impact on his family of relocation) which was not otherwise in issue and was not addressed in the FtT hearing or the FtT’s judgment.[51]If the SSHD is permitted to take the point, Mr Hirtie seeks to distinguish Borges. In that case there was a graduated statutory framework with different levels of protection and corresponding tests. The FtT considered that the appellant was entitled to a different level of protection to that considered by the SSHD. That explained why the SSHD in Borges had not considered the test favoured by the FtT, but the FtT was obliged to give proper consideration to the test it was substituting in place of the SSHD’s approach. That is not the case here. The parties are and have always been agreed about the tests that fell to be applied under subsections 117C(5) and (6). The SSHD’s omission of the effect of relocation on Mr Hirtie’s partner or children in her decision letter or before the FtT is to be explained on the basis that the issue formed no part of her decision-making process or decision and so the SSHD placed no weight upon it.

Discussion and resolution – Ground 1

[52]In my judgment it would be quite wrong to permit the SSHD to rely upon a ground of appeal that was unequivocally withdrawn as a ground of appeal before the UT. As I have already acknowledged, the withdrawal was in the face of a heavy judicial headwind: but the SSHD was appropriately represented before the UT and was not forced to withdraw the ground; and the withdrawal was unequivocal. No good reason has been given for resuscitating the issue before this Court when it has been expressly and unequivocally withdrawn below.[53]Application of the principles articulated by Haddon-Cave LJ in Singh v Dass, which I have set out above, leads to the same conclusion. As with any point that has not been raised before the first instance court or tribunal, this court is cautious about allowing it to be raised now. On the facts of this case(a) admission of the point would necessitate new evidence about the difficulties that Mr Hirtie’s partner and children would be likely to encounter in relocating to Romania with him; and(b) had the point been raised in the Court below, the trial would have had to be conducted differently with regards to the evidence at the trial, whether that be evidence on behalf of Mr Hirtie to satisfy the FtT about the impact on his family of relocation or on behalf of the SSHD in seeking to rebut the factual case now being advanced. Third, and closely connected with the previous reasoning, the issue being raised is not a pure point of law and is not able to be resolved by this Court as we are not a fact-finding court. If satisfied that there was substance in the issue, we would have to remit the case to the tribunal for determination of the issue and its impact (cumulatively or otherwise) on the other evidence in the case.[54]More fundamentally, to permit the SSHD to raise the point now would be directly contrary to the principles identified in Lata and AL and embedded in the 2014 Rules. As a matter of substance, I reject the attempted analogy with Borges. The mere fact that the SSHD was asserting that it would not be unduly harsh for the partner and the children to remain in the UK in the event that Mr Hirtie was deported to Romania would not render irrelevant an additional ground justifying deportation, namely that it would not be unduly harsh for them to live in Romania. As I have already indicated, the only reliable conclusion to be drawn from the fact that the SSHD did not rely upon that additional reason either in the original decision or before the FtT is that it formed no part of the case being advanced to justify deportation. The structure of the decision letter, with its identification of the constituent elements of the exceptions in turn but omitting any reasoned mention of the element of difficulty if living in Romania, makes this clear. It cannot have been accidental that, having set out her case on all the other elements in turn, there was no mention of this one. Whether it formed no part of the case because the SSHD was conscious of the point but chose not to rely on it or because the SSHD accepted that it would be unduly harsh for the family to live in Romania does not matter. In either event, the SSHD was placing no weight upon the point and it formed no part of her decision-making process.[55]The SSHD is not immune from the obligations outlined in Lata, AL and the 2014 Rules. She was therefore under an obligation to engage in the process of defining and narrowing the issues in dispute. As part of that process, Mr Hirtie had submitted his skeleton argument which identified matters in dispute and, of equal or greater importance, matters not in dispute: see [17] above. If the SSHD considered the skeleton to be wrong in asserting that it was not in dispute that “it would be unduly harsh for [the older child] to leave the UK” she should have defined it as an issue in dispute either in response to the skeleton or, at the latest, when putting all her arguments before the FtT: see Rule 24A of the 2014 Rules. She did not do so. The point was not Robinson obvious because, as I have explained above, the SSHD’s silence on the point was consistent with the issue not forming part of her decision-making process and not being in dispute between the parties. At its highest, it was plain that the SSHD placed no weight upon that issue. Accordingly, it was not in issue between the parties.[56]As stated in Lata, the FtT Judge was entitled to expect clarity as to the remaining issues between the parties by the date of the substantive hearing. By that date, the position was clear, as set out in Mr Hirtie’s skeleton and as recorded by the FtT Judge: see [19] above. The FtT Judge’s decision cannot be alleged to contain an error of law on the basis that it failed to take account of a point that was never raised for consideration as an issue in the appeal. To hold otherwise in this case would undermine the principles clearly laid out in Lata, AL and the Procedure Rules.[57]For these reasons, it would be unfair to allow the SSHD to rely upon Ground 1 where there has been a full evidential hearing on the basis that the question whether it would be unduly harsh for the partner and children to live in Romania was not in issue. I would therefore refuse permission for the SSHD to rely upon it.

The SSHD’s submissions – Ground 2

[58]The SSHD submits that the FtT failed to appreciate the strength of the public interest in deporting Mr Hirtie and applied a test that was too favourable to him. The SSHD relies on passages from Hesham Ali v SSHD [2016] UKSC 60, [2016] 1 WLR 4799 at [38], and HA (Iraq) v SSHD at [51], which emphasise the great weight to be given to the public interest in the deportation of qualifying offenders and the need for a very strong claim if it is to outweigh that public interest, particularly where the offender cannot rely on Exceptions 1 and 2. The other side of that particular coin is that: “The significance of the words "over and above" is, therefore, that the serious offender must not only establish circumstances relating to private or family life that provide a basis for concluding that deportation would involve a disproportionate interference with Article 8 rights which is "very strong indeed"; the circumstances must also be compelling to a degree that goes "well beyond" anything that does or would fall within either of the Exceptions.” (Majera v SSHD [2025] EWCA Civ 1597 at [11])[59]The FtT is criticised for not conducting the exercise required by section 117C and for not bringing the “go” scenario into play. In oral submissions, Mr Malik argued strenuously that the FtT judgment was legally deficient because the FtT Judge had not carried out a balancing exercise in order to assess the proportionality of any interference with Mr Hirtie’s Article 8 rights. Ultimately he was driven to submit that, even if the FtT judge had in substance carried out such a balancing exercise in the course of his judgment, he had then to adopt a checklist approach at its conclusion, listing again the features that he placed on either side of the balance. If that was the test, the FtT Judge had manifestly failed to satisfy it.[60]Separately the SSHD submits that there was no medical or other evidence to support the FtT’s finding that Mr Hirtie’s partner would be unable to cope without him and that his deportation would have a profoundly detrimental impact on her; that the FtT failed to recognise that deportation often results in tragic consequences and frequently breaks up family units; that the welfare of the children alone cannot outweigh the public interest in deportation; and that the FtT conducted its assessment in a general and inadequately reasoned manner.

Mr Hirtie’s submissions – Ground 2

[61]Mr Hirtie submits that there was sufficient evidence before the FtT to justify the conclusion that he, as a medium offender, meets the “very compelling circumstances” test. He relies upon the well-known passage from the judgment of Lewison LJ at [114]-[115] of Fage UK Ltd v Chobani UK Ltd [2014] EWCA Civ 5 emphasising the different roles and responsibilities of the first instance and appellate courts; and upon the observation of Lord Hoffmann in Biogen Inc v Medeva Plc [1997]RPC 1 at [45], that specific findings of fact, even by the most meticulous judge, are inherently an incomplete statement of the impression which was made upon them by the primary evidence. He submits that the evaluative findings made by the FtT were based upon all of the evidence, as appears from the judgment, and that the FtT did not err in the test that it applied. To the contrary, the FtT(a) explicitly carried out a balancing exercise as required: see [J30];(b) explicitly recognised at [J20] the very high bar that Mr Hirtie had to surmount in satisfying the very compelling circumstances test;(c) expressly recognised at [J21] the governing principles that the deportation of foreign criminals is in the public interest and the more serious the offence committed by a foreign criminal, the greater is the public interest in deportation of the criminal;(d) expressly recognised at [J22] the very significant weight that must be accorded to the public interest, and(e) explicitly recognised at [J22] and [J39] that hardship is an inevitable consequence of deportation for the whole family.

Discussion and Resolution – Ground 2

[62]Although he did not formulate the legal test in full detail, it is plain that the FtT Judge had in mind the relevant principles to be applied. He did not set out section 117C, but he referred to it in terms that demonstrate his understanding of the test to be applied, including at [J20] “the very high bar to be applied to the test of very compelling circumstances” and at [J22] that the public interest in the deportation of foreign criminals must be accorded very significant weight, relying upon Hesham Ali.[63]It is clear beyond argument that the FtT Judge in substance applied the statutory test, namely whether there were very compelling circumstances over and above those in Exception 2 which outweighed the public interest which requires deportation of a foreign criminal and that he did so with the factors and framework applicable to deportation cases clearly in mind: see [J30]. In doing so he asked himself the right question, namely whether the specific facts relied on by Mr Hirtie were cumulatively sufficient to amount to very compelling circumstances over and above those in Exception 2 which outweighed the public interest in the deportation of a foreign criminal: see [J30]. At the conclusion of the exercise he referred to there being “exceptionally compelling circumstances”, once again indicating that he had the correct test in mind and was applying it.[64]It is true that he did not round off his judgment with a tick-box exercise identifying again what factors amounted to very compelling circumstances; but that would have added nothing substantial to his judgment other than making it longer. It is also clear that he did not consider the “go” option because he was informed that it was not in issue: see [J28]. For the reasons I have given in relation to Ground 1, that affords no grounds for criticism.[65]For these reasons, I am not persuaded that the FtT Judge failed to apply the proper legal test. The question is therefore whether he was entitled to reach the conclusion that he did or whether, as the SSHD submits, his conclusion was perverse such that this Court should overturn it.[66]On a fair reading of the FtT judgment, the core of the Judge’s reasoning was to be found in [J40], which I have set out above. His conclusion that the impact of the separation on Mr Hirtie’s partner would be “profound, going beyond undue hardship” (which I take to mean that it was over and above those described in Exceptions 1 and 2) was based upon his assessment of her particular circumstances as summarised in [J31] ff. That in turn was based upon his assessment of her and Mr Hirtie (and his brother) as witnesses who were “honest and credible” and who gave “sincere and heartfelt evidence” which caused the Judge to give maximum weight to their evidence. That was an assessment that he was entitled to make. On any view, the partner’s profoundly difficult and traumatic past was relevant evidence which the Judge was entitled to accept. He also was entitled to accept their evidence that a combination of factors would “undeniably place her in an extreme state of loss and isolation if her partner were to be removed from the country.” Having taken into account the fact that the partner had coped while Mr Hirtie was in prison, the Judge was also entitled to find, based upon his assessment of the evidence before him that the partner “would be unable to cope with the permanence of the separation in emotional or practical terms” and that Mr Hirtie’s brother, who had given her support while Mr Hirtie was in prison, would not be able to offer long-term support going forward.[67]The Judge’s findings in [J33] and [J34] were careful and measured. It is objected that he could not properly reach such conclusions without expert medical evidence. I disagree. While confirmatory expert evidence may be desirable, depending on the facts of the given case, there is no rational basis for a blanket assertion that Judges of the FtT are not entitled to make findings about the impact of a particular course of action on people whose evidence they have heard and accepted but in the absence of expert evidence.[68]In these circumstances, I am not persuaded that the findings made by the FtT Judge are to be denigrated as either speculative or perverse. The Judge came to his conclusion “by a narrow margin”: see [J37]. I would endorse the Judge’s appreciation of what was a fact-specific decision. The margin was narrow, but sufficient. In my judgment, there is enough substance in his findings of fact and reasoning to make it inappropriate for this Court to intervene. The UT was correct to uphold the FtT’s decision.[69]I would dismiss the appeal on Ground 2.

Conclusion

[70]If my Lords agree, I would dismiss this appeal.[71]I agree that the appeal should be dismissed for the reasons given by Stuart-Smith LJ. The proper approach to the determination of when the public interest in the deportation of a foreign national criminal may be outweighed was helpfully analysed by this Court in NA (Pakistan) v SSHD [2017] 1 WLR 707, the material parts of which were cited with approval in HA (Iraq), and summarised more recently in SSHD v Lewis [2026] EWCA Civ 899.[72]On balance, I am just satisfied that the FtT did, in the present case, apply the correct test and did consider whether there were very compelling circumstances over and above those described in Exception 2 which outweighed the public interest which requires the deportation of foreign criminals. In particular, it was the impact on Mr Hirtie’s partner, given her particular circumstances (arising out of what was described as her “profoundly difficult and traumatic past”) and the consequential effect on her ability to care for the two children which would lead to adverse effects on the children “for many years to come” which amounted to the very compelling circumstances. As the FtT said in paragraph 40, the impact on the partner was profound “going beyond undue hardship”. That, in substance, involved the application of the statutory test. On the particular facts of this case, the FtT came to a conclusion which was open to it, on the evidence that it had heard, and given the issues before it.[73]I agree with both judgments. Appendix [8]-[23] of SSHD v Collins Cuthbert Lewis [2026] EWCA Civ 879 THE LEGAL FRAMEWORK The statutory provisions governing deportation

THE LEGAL FRAMEWORK

[8]Section 3(5) of the Immigration Act 1971 (“the 1971 Act”) provides that a person who is not a British citizen is liable to deportation from the United Kingdom if the Secretary of State deems his deportation to be conducive to the public good. Section 33(4) of the UK Borders Act 2007 (“the 2007 Act”) provides that “the deportation of a foreign criminal is conducive to the public good”. A foreign criminal is defined, so far as material to this appeal, as a person who is not a British citizen who is convicted of an offence and sentenced to a period of at least 12 months’ imprisonment (see section 32 of the 2007 Act and section 117D(2) of the 2002 Act).[9]Section 33(5) of the 2007 Act imposes a duty on the Secretary of State to make a deportation order unless one of a number of stated exceptions apply. The relevant exception in the present case is where deportation would breach a person’s Convention rights. Those are the rights defined in section 1 of the Human Rights Act 1998 (“the 1998 Act”) and set out in Schedule 1 to that Act. Those rights include, amongst others, Article 8 of the Convention which provides that: “1. Everyone has the right to respect for his private and family life, his home and his correspondence. 2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others."

Appeals to the First-Tier Tribunal

[10]An individual may claim that deportation would be incompatible with his Convention rights. The Secretary of State will need to determine that human rights claim and, in doing so, section 6 of the 1998 Act provides that it would be unlawful for the Secretary of State to act in a way which is incompatible with a Convention right.[11]Section 82(1)(b) of the 2002 Act provides, amongst other things, that a person may appeal to the First-tier Tribunal where the “Secretary of State has decided to refuse a human rights claim”. Section 84(2) of the 2002 Act sets out the grounds of appeal and provides that an appeal against a refusal of a human rights claim must be brought on the ground that the decision is unlawful under section 6 of the 1998 Act, that is the Secretary of State’s decision is incompatible with the person’s Convention rights.[12]Part 5A of the 2002 Act applies where a court or tribunal is required to determine whether a decision made under the Immigration Acts breaches a person's right to respect for private and family life, and as a result, would be unlawful under section 6 of the 1998 Act. Section 117A of the 2002 Act provides as follows: “117A Application of this Part(1) This Part applies where a court or tribunal is required to determine whether a decision made under the Immigration Acts— (a) breaches a person's right to respect for private and family life under Article 8, and (b) as a result would be unlawful under section 6 of the Human Rights Act 1998.(2) In considering the public interest question, the court or tribunal must (in particular) have regard— (a) in all cases, to the considerations listed in section 117B, and (b) in cases concerning the deportation of foreign criminals, to the considerations listed in section 117C.(3) In subsection (2), “the public interest question” means the question of whether an interference with a person's right to respect for private and family life is justified under Article 8(2).” (a) in all cases, to the considerations listed in section 117B, and (b) in cases concerning the deportation of foreign criminals, to the considerations listed in section 117C.[13]Section 117B of the 2002 Act sets out a series of considerations which are relevant to the assessment of the public interest in all cases where a court or tribunal is considering whether an interference with a person’s right to respect for private or family life is justified under Article 8(2). These include the fact that the maintenance of effective immigration controls, and that a person is able to speak English and is financially independent, is in the public interest. Section 117B(4) and (5) provides that little weight should be accorded to a private life or a relationship entered into when the person was in the United Kingdom unlawfully or when his immigration status was precarious.[14]Section 117C of the 2002 Act sets out a series of additional consideration which must be taken into account in cases involving foreign criminals. Section 117C, in effect, sets out a statutory framework governing the assessment of whether deportation would be a justifiable interference with the right to respect for a person’s private and family life. It provides as follows: “117C Article 8: additional considerations in cases involving foreign criminals(1) The deportation of foreign criminals is in the public interest.(2) The more serious the offence committed by a foreign criminal, the greater is the public interest in deportation of the criminal.(3) In the case of a foreign criminal (“C”) who has not been sentenced to a period of imprisonment of four years or more, the public interest requires C's deportation unless Exception 1 or Exception 2 applies.(4) Exception 1 applies where— (a) C has been lawfully resident in the United Kingdom for most of C's life, (b) C is socially and culturally integrated in the United Kingdom, and (c) there would be very significant obstacles to C's integration into the country to which C is proposed to be deported.(5) Exception 2 applies where C has a genuine and subsisting relationship with a qualifying partner, or a genuine and subsisting parental relationship with a qualifying child, and the effect of C's deportation on the partner or child would be unduly harsh.(6) In the case of a foreign criminal who has been sentenced to a period of imprisonment of at least four years, the public interest requires deportation unless there are very compelling circumstances, over and above those described in Exceptions 1 and 2.(7) The considerations in subsections (1) to (6) are to be taken into account where a court or tribunal is considering a decision to deport a foreign criminal only to the extent that the reason for the decision was the offence or offences for which the criminal has been convicted.” (a) C has been lawfully resident in the United Kingdom for most of C's life, (b) C is socially and culturally integrated in the United Kingdom, and (c) there would be very significant obstacles to C's integration into the country to which C is proposed to be deported.[15]Exceptions 1 and 2 apply to, (among others) foreign criminals sentenced to between 1 and 4 years’ imprisonment. They are generally referred to as medium offenders. Exception 1 concerns the impact of deportation on the foreign criminal’s right to respect for private life. It sets out which foreign criminals may claim the benefit of the exception and when the public interest will not require the deportation of such foreign criminals. A foreign criminal may benefit from the exception if he has been in the United Kingdom lawfully for most of his life, and is socially and cultural integrated here (if not he cannot benefit from the exception). The third requirement concerns the ability of the medium offender foreign criminal to re-integrate into his country of origin. If a foreign criminal has been lawfully here for most of his life, and is socially and culturally integrated, but would face “very significant obstacles” to re-integration, then deportation is not in the public interest.[16]Exception 2 concerns the right to respect for family life. It focusses on the impact of deportation on a foreign criminal’s partner and children. They must be a qualifying child or partner (which is concerned with their status, or length of time, in the United Kingdom). If so, and if there is a genuine and subsisting relationship with the partner or child and it would be unduly harsh on the partner or child to deport the foreign criminal, then the public interest will not justify the deportation of a medium offender.[17]In NA (Pakistan) v Secretary of State for the Home Department [2017] 1 WLR 707, the Court of Appeal also held that a medium offender may also be able to rely on the provisions of section 117C(6). The public interest will not require deportation if a foreign criminal who is a medium offender can demonstrate that there are very compelling circumstances over and above those described in exceptions 1 and 2: see paragraphs 24 to 27 of the decision in NA (Pakistan). The way in which that subsection operates in relation to medium offenders is discussed at paragraph 32 to 36 of the judgment in NA (Pakistan).[18]A foreign criminal sentenced to imprisonment for 4 years or more (generally referred to as a serious offender) cannot benefit from exceptions 1 and 2. If a serious offender relies on the kind of circumstances described in exceptions 1 and 2 (that is the impact on the foreign criminal, and the impact on his partner or child, respectively), the public interest will still require deportation of the serious offender even if he would have met the requirements of the exception had it applied. The public interest would still require deportation, for example, even if the serious offender has a genuine and subsisting relationship with a qualifying partner or child, and it would be unduly harsh on the partner or child to deport the foreign criminal (subject to the operation of section 117C(6) of the 2002 Act). In such cases, the public interest will require deportation of the serious offender unless there are “very compelling circumstances, over and above those described in Exceptions 1 and 2”. Such circumstances may outweigh the public interest in deportation (so that deportation would not be a justified interference with the right to respect for private or family life within the meaning of Article 8(2) of the Convention): see section 117C(6) of the 2002 Act.[19]The operation of section 117C(6) was helpfully described in NA (Pakistan). The Court of Appeal said:
“37. In relation to a serious offender, it will often be sensible first to see whether his case involves circumstances of the kind described in Exceptions 1 and 2, both because the circumstances so described set out particularly significant factors bearing upon respect for private life (Exception 1) and respect for family life (Exception 2) and because that may provide a helpful basis on which an assessment can be made whether there are “very compelling circumstances, over and above those described in Exceptions 1 and 2” as is required under section 117C(6) . It will then be necessary to look to see whether any of the factors falling within Exceptions 1 and 2 are of such force, whether by themselves or taken in conjunction with any other relevant factors not covered by the circumstances described in Exceptions 1 and 2, as to satisfy the test in section 117C(6).”
[20]That issue was considered again by the Court of Appeal in Kapikanya v Secretary of State for the Home Department [2025] EWCA Civ 987. The Court emphasised that the First-tier Tribunal could not bypass the requirements in the exceptions and go straight to the question of very compelling circumstances, as that would “undermine the Parliamentary intent and deprive the phrase “over and above those described in Exceptions 1 and 2 of much if not all of its meaning” (see per Bean LJ at paragraph 42 with whom Peter Jackson LJ and Baker LJ agreed). The Court in Kapikanya recognised that there may be cases where the circumstances are unconnected with the matters dealt with in exceptions 1 and 2 and, if they are very compelling circumstances, the public interest will not require deportation. An example given was of a couple with a teenage daughter with Down’s syndrome and the father is sentenced to a lengthy period of imprisonment. By the time of his release, the mother may have died; the daughter may no longer be a child and the foreign national criminal may be the only person capable of caring for her. Exception 2 would not apply as the daughter would not be a child but it might be that the circumstances would be seen as very compelling and so the public interest may not apply: see paragraph 27 of the judgment.[21]One question raised in argument was whether the First-tier Tribunal was required as a matter of law to consider expressly whether a serious offender could or would fall within exception 1 or 2 (if they had applied) and then to identify the factors over and above that which amounted to very compelling circumstances. The answer is that a First-tier Tribunal is not required to do that as a matter of law: see Yalcin v Secretary of State for the Home Department [2024] 1 WLR 1626, at paragraph 59 to 65.[22]In general, however, it is often sensible first to see whether a case involves circumstances of the kind described in exceptions 1 or 2, and then assess “whether any of the factors falling within Exception 1 or 2 are of such force, whether by themselves or taken in conjunction with any other relevant factor not covered by the circumstances described in Exceptions 1 or 2, as to satisfy the test in section 117C(6)”: see paragraph 37 of NA (Pakistan). That will promote transparency and reduce the risk of error in applying the statutory framework. Whilst recognising that that was not a legal requirement, Underhill LJ encouraged such an approach: see paragraph 65 of his judgment in Yalcin. If a First-tier Tribunal does not, however, structure its reasoning in that way, it will need to ensure that it is possible to see that it has identified the relevant facts and has properly applied the statutory framework from the way in which it has expressed its decision.[23]Finally, it is right to remember that the factors identified in the case law of the European Court of Human Rights have an important role to play. The factors may be relevant to things dealt with in the exceptions, such as whether deportation would be unduly harsh for a child, or in emphasising the great weight to be given to the public interest in deporting foreign criminals when considering whether there are very compelling circumstances: see paragraphs 37 and 38 of NA (Pakistan); and paragraph 51 of HA (Iraq) v Secretary of State for the Home Department [2022] 1 WLR 3784. Many of those factors (but not all) will be part of the consideration of whether deportation would be unduly harsh or whether there would be very significant obstacles to the reintegration of the foreign criminal in his country of origin. The legislature has determined the way in which certain factors are to be assessed, or the weight to be given to them, in the context of whether deportation of a foreign criminal is justified within the meaning of Article 8(2). That is permissible, as recognised by Lord Reed in the Supreme Court in Hesham Ali v Secretary of State for the Home Department [2016] 1 WLR 4799 at paragraph 15 of his judgment, and by Lord Hamblen in HA (Iraq) at paragraph 52.