Secretary of State for the Home Office v Hamilton Jorge da Silva Pinho [2025] UKUT 317 (IAC)

[2025] UKUT 00317 (IAC)

Da Silva Pinho (FtT - jurisdiction)

IN THE UPPER TRIBUNAL

IMMIGRATION AND ASYLUM CHAMBER)

Venue Heard at Field House

Hearing Heard on 21 May 2025

THE IMMIGRATION ACTS

Promulgated on 11 September 2025

Before

UPPER TRIBUNAL JUDGE RIMINGTON

DEPUTY UPPER TRIBUNAL JUDGE RICHARDS

Between

SECRETARY OF STATE FOR THE HOME OFFICEAppellant

HAMILTON JORGE DA SILVA PINHORespondent

(NO ANONYMITY ORDER MADE)Respondent

Mr W M Bhebhe, instructed by Njomane Law for Appellant

Ms J Isherwood, Senior Home Office Presenting Officer for Respondent

(a) The filing of a notice of appeal is fundamental to the commencement of proceedings in relation to the relevant decisions and in order to initiate proceedings to trigger or activate the FtT’s powers under the FtT Procedure Rules.

(b) There is no inherent jurisdiction in the FtT and for it to stray beyond what it is statutorily empowered to do is ultra vires.

(c) An appeal under the Immigration (Citizens' Rights Appeals) (EU Exit) Regulations 2020 is an appeal under a different regime from an appeal under s82 of the Nationality, Immigration and Asylum Act 2002.Vargova[2024] UKUT 336 (IAC) and Abdullah[2024] UKUT 66 (IAC) reference the scope of the different rights of appeal. The parties must be alive to the requirements to file an effective notice of appeal to each and every relevant decision.

DECISION AND REASONS

Date 2025-09-11

[1]The application for permission to appeal was made by the Secretary of State but we will refer to the parties as they were described before the FtT.

[2]The Secretary of State appeals the decision of FtT Judge C R Cole (the judge) who on 6th December 2024 allowed the appellant’s appeal against the refusal of his human rights claim (Article 8) on deportation.

[3]One of the issues in this appeal relates to the jurisdiction of the First-tier Tribunal (FtT). The appellant only appealed to the First-tier Tribunal (FtT) under the Immigration (Citizens’ Rights Appeals) (EU Exit) Regulations 2020 (‘the CRA Regulations 2020’). The FtT judge, however, after issuing directions, allowed the appellant’s appeal on human rights grounds. We have thus considered whether the judge was also entitled to proceed to determine the human rights decision. Background

[4]The appellant is a Portuguese national born on 15th February 1988 and who entered the UK in August 2009 with his parents at the age of 21 years. He visited Portugal for an unspecified period between 2018 and 2019. On 19th November 2019 he was granted leave to remain under the EU Settlement Scheme (‘EUSS’) (pre-settled status) which expired on 20th November 2024. On 20th October 2021 the appellant applied for settled status under the EUSS.

[5]The appellant’s conviction record showed that: on 12th June 2011 he was cautioned for using threatening abusive insulting words or behaviour with intent to cause fear or provocation of violence; on 26th October 2013 he was cautioned by police for theft/shoplifting; on 9th November 2015 he was convicted for battery and issued with a community order, restraining order, costs and unpaid work requirement imposed; on 20th September 2017 he was convicted of destroying property with a value of £5,000 or less and a conditional discharge of 8 months imposed with a cost of £50 and a victim surcharge of £20; and on 2nd November 2023 he was convicted and sentenced at Manchester Crown Court for 3 counts of assault by beating/assaulting a person occasioning actual bodily harm and 20 months imprisonment imposed together with a restraining order and victim surcharge.

[6]On 15th November 2023 a Deportation Decision Notice (ICD4936A) was issued (Stage 1) together with a one-stop notice and to which the appellant made representations against a notice of intention to make a deportation order. On 16th January 2024 a deportation decision was issued to the appellant together with a refusal of a human rights claim with a right of appeal under the Nationality Immigration and Asylum Act 2002 (the 2002 Act). A refusal of the EUSS application dated 20th October 2021 was also issued on 16th January 2024. The Secretary of State’s grounds of appeal

[7]The grounds of appeal advanced that the judge failed to give adequate reasons for findings on material matters and misdirected himself on the law s117C (5) of the 2002 Act specifically Exception 2. This required an elevated threshold to be applied in relation to the concept of ‘unduly harsh’.

[8]The judge’s findings contradicted his earlier findings that the appellant downplayed the negative aspects of his offending as he was desperate to remain in the UK, that the appellant embellished his account and ‘failed to accept responsibility for all of his offending’, [53]-[54]. The judge also found the appellant had an ‘entrenched pattern of abusive behaviour toward female partners’ [56]. Thus, the risk of serious harm to his child, ex-partner and future partners was accepted. The judge found the appellant also sought to downplay his connections with Portugal [57] and that he had not been honest about his connection with family/friends there. At [68] the judge found the mother had ‘previously suffered from depression and anxiety’ but no GP records or similar medical records were produced and could have been reasonably available to the child’s mother.

[9]The bonds with the child were simply not evidenced and it should be noted that the child was only 15 months old, and his primary carer was the biological mother with whom the appellant did not live and had no intention to do so. The mother could avail herself of practical help as she did during the appellant’s incarceration. The judge acknowledged at [66] that there was no independent social worker report and reliance was simply based on the evidence of the appellant himself which was self-serving and lacked impartiality. The judge had looked into the future and relied on hypothetical fears expressed by the child’s mother that the son may suffer emotional damage.

[10]The judge failed to acknowledge the OASys report which identified the appellant as a ‘medium risk of serious harm’ to the couple’s child should he bear witness to any further disagreements.

[11]The cost of visits by the mother a Portuguese national did not reach the high threshold of ‘unduly harsh’ [70].

[12]Even taken cumulatively, the circumstances did not reach the elevated threshold envisioned by HA (Iraq)

[2020] EWCA Civ 1176

which approved MK (Sierra Leone)

[2015] UKUT 223 (IAC)

. Various factors should be considered in relation to each individual child including the degree of the child’s emotional dependence.

[13]In sum, in the light of the findings, the judge failed to provide adequate reasons for his conclusion in relation to the ‘unduly harsh’ test. Grant of permission to appeal

[14]The grant of permission set out that the grounds argued the judge erred in his consideration and application of the ‘unduly harsh’ test set out in Exception 2 at s117C (5) of the 2002 Act when finding that it would be unduly harsh for the appellant’s child to stay in the UK with their mother without the appellant.

[15]The grant of permission recorded that the findings at [58]-[69] did not explain why that threshold was met particularly given the young age of the child. Judge Rhys-Davies independently opined, although noting it was not pleaded in the grounds, that the judge had erred in his overall approach to the appeal and cited Vargova (EU national: post 31 December 2020 offending: deportation)

[2024] UKUT 00336 (IAC)

. In effect the judge had no jurisdiction to determine the human rights appeal. The judge granting permission had this to say “5. Further and alternatively, and although not pleaded in the Grounds, there is an arguably material error of law in the Judge’s approach to the appeal as a whole at [11] – [22]. 6. The Judge sets out how, having heard the appeal, but not yet made his Decision, he realised that the Parties and the Tribunal had proceeded on an erroneous basis: the only Notice of Appeal filed by the Appellant related to the Respondent’s “stage 1” deportation decision. 7. The Respondent had made a stage 2 decision and a decision to refuse the Appellant’s application for indefinite leave to remain, but no Notices of Appeal had been filed against those. This appeal therefore fell to be decided in line with Vargova (EU national: post 31 December 2020 offending: deportation)

[2024] UKUT 00336 (IAC)

, as the Judge noted at [15] – [16], i.e. against the stage 1 decision only (see headnote (5) and (6) of Vargova). Having invited the Parties submissions, the Judge agreed with their joint position that the Tribunal could waive any procedural irregularities under r.6 and determine the stage 2 decision anyway: [20] – [22]. 8. The Judge arguably erred in using r6 to enlarge the Tribunal’s jurisdiction, when the appeal before him ought to have been confined to the stage 1 decision, in line with Vargova” Analysis

[16]There were three decisions pertaining to the appellant and containing a right of appeal; one dated 15th November 2023 relating to the Stage 1 deportation granting a right of appeal under the CRA Regulations 2020; second, a human rights decision dated 16th January 2024 granting an appeal under Section 82 of the 2002 Act; and third a further EUSS decision of the same date with another right of appeal under the CRA Regulations 2020. The appellant, however, filed a notice of appeal only in relation to the first decision.

[17]The grounds of appeal under Regulation 8 of the CRA Regulations 2020 are in summary(i) whether the decision breaches any right which the appellant has by virtue of the Withdrawal Agreement, the EEA EFTA separation agreement, or the Swiss citizens’ rights agreement and

(ii) whether the decision breaches any right the appellant has under the ‘citizens’ rights immigration decisions‘ (set out at Regulations 3-7).

[18]The ground of appeal further to Section 82 and under Section 84 of the 2002 Act in relation to human rights is: s84 Grounds of appeal (1)… (2)An appeal under section 82(1)(b) (refusal of human rights claim) must be brought on the ground that the decision is unlawful under section 6 of the Human Rights Act 1998.

[19]As the judge recorded at [10]–[25] of his FtT decision a procedural and jurisdictional issue arose as to the appeal. The decision that the appellant had in fact appealed was the decision dated 15th November 2023 which only afforded the appellant an appeal under Regulation 6 of the CRA Regulations 2020 and not, obviously, an appeal against the later human rights decision (nor the later EUSS decision).

[20]The judge heard the matter on 8th November 2024. He, however, issued directions dated 13th November 2024 to the effect that the appeal might proceed on the basis of an appeal against the two decisions made by the respondent on 16th January 2024 (the human rights decision and the later EUSS decision of the same date).

[21]The judge cited Vargova, and stated that the hearing had proceeded on the basis that the parties agreed that human rights was the key issue in the matter before him and ‘all the submissions referenced domestic law on Human Rights and deportation’ and ‘it appears that this is only an appeal against a Stage 1 decision with only limited grounds of appeal under regulation 8 of the Immigration (Citizens’ Rights Appeals) (EU Exit) Regulations 2020.’

[22]The judge also recorded in his directions that the ‘only Notice of Appeal on the Tribunal system appears to be dated 9 December 2023 and is an appeal against the Respondent’s decision dated 15 November 2023’.

The judge made the following directions:

‘(here “the date of these Directions” is a reference to the date on which these Directions are sent out) 1. Within 7 days of the date of these Directions, the Appellant and the Respondent must file with the Tribunal details of their position as to the jurisdiction of the Tribunal to the Human Rights issues. As all of the evidence has been heard, and the cases were prepared and presented by both parties as if this were a Human Rights appeal, then the parties may agree that any procedural requirements, including to provide a Notice of Appeal, can be waived under paragraph 6 of The Tribunal Procedure (First-tier Tribunal) (Immigration and Asylum Chamber) Rules 2014. 2. If there is consensus between the parties as to how to proceed, then I will proceed to determine the case. 3. If there is no response from the parties to these Directions, then I shall presume that the parties are content for any procedural requirements to be waived and the case is to be determined as an appeal against the two decisions made by the Respondent on 16 January 2024 (which would be in accordance with the manner in which the case proceeded before me, including the agreement of the issues and the submissions made). 4. If there is no agreement between the parties, then there will be a resumed hearing before me to hear submissions on the procedural and jurisdictional issues raised. Any resumed hearing will require the attendance of Mr Bhebhe and Mrs Yusuf, although the attendance of the Appellant is excused. Further directions will be given for any resumed hearing.’

[24]Neither party objected at the FtT hearing and neither objected nor responded to the written directions issued on 13th November 2024 which gave the opportunity to respond by 20th November 2024. The decision under challenge was not promulgated until 5th December 2024. The judge determined the appeal as if the appeal related to both the human rights decision and the later EUSS decision.

[25]The judge’s directions and ultimate decision to proceed with both appeals were said by him to be within his case management powers under Rule 6 of the Tribunal Procedure (First-tier Tribunal) (Immigration and Asylum Chamber) Rules 2014 (‘the FtT Rules’).

The judge in fact set out that he proceeded under Rule 6 of the FtT Rules which states:

‘Failure to comply with rules etc 6.— (1) An irregularity resulting from a failure to comply with any requirement in these Rules, a practice direction or a direction does not of itself render void the proceedings or any step taken in the proceedings.

(c) exercising its power under paragraph (3)…’

[27]The requirements, however, for filing a notice of appeal and thus the commencement of proceedings are set out in Rule 19 of the FtT Procedure Rules, and as follows:

‘19.—(1) An appellant must start proceedings by providing a notice of appeal to the Tribunal (2) If the person is in the United Kingdom, the notice of appeal must be received not later than 14 days after they are sent the notice of the decision against which the appeal is brought. … (4) The notice of appeal must— (a) identify which of the available statutory grounds of appeal are relied upon; (b) be signed and dated by the appellant or their representative; (c) if the notice of appeal is signed by the appellant’s representative, the representative must certify in the notice of appeal that it has been completed in accordance with the appellant’s instructions; … (5) The appellant must provide with the notice of appeal— (a) the notice of decision against which the appellant is appealing or if it is not practicable to include the notice of decision, the reasons why it is not practicable; (b) any statement of reasons for that decision; (c) any documents in support of the appellant’s case which have not been supplied to the respondent; (d) an application for the Lord Chancellor to issue a certificate of fee satisfaction; (e) any further information or documents required by an applicable practice direction. (6) The Tribunal must send a copy of the notice of appeal and the accompanying documents or information provided by the appellant to the respondent’

[28]From a close review of the correspondence submitted to the FtT, we could not detect that any of these Rule 19 provisions had been complied with in relation to the Secretary of State’s human rights decision dated 16th January 2024. Although the Secretary of State issued a ‘second stage’ human rights decision under the 2002 Act in relation to the deportation of the appellant and which included a right of appeal, the appellant had thus not even ‘started’ proceedings and thus the case management powers were not triggered.

[29]No response was received from either the appellant nor the respondent to the judge’s directions and no challenge on jurisdiction was made in the written grounds of appeal to the Upper Tribunal although Ms Isherwood raised the issue in oral submissions. Reliance on the jurisdictional issue by the Secretary of State, having failed to respond to the judge’s directions, is unbecoming, but we consider the jurisdictional challenge was nonetheless ultimately properly raised. As held in MS (Uganda)

[2014] EWCA Civ 50

[9] jurisdictional issues can be raised at any time because jurisdiction cannot simply be conferred by oversight or agreement.

[30]We appreciate the matter in relation to jurisdiction was not raised initially in the written grounds to the Upper Tribunal and that Mr Bhebbe submitted that it would be most unfair to permit this ground to be argued at this stage in the proceedings when no challenge on this basis had been raised previously. The judge however, who granted permission raised the issue of jurisdiction at that stage and Mr Bhebbe was on notice that this matter had been raised. We are alive to the issues of economy of resources and fairness. We note that no issue was raised by the parties previously despite specific written directions being issued by the judge inviting the parties to lodge their objections to his approach failing which the judge would either reconvene or issue a decision; it is not, however, to the point or does not assist if there was no underlying jurisdiction because there was simply no appeal lodged. In relation to the human rights decision, proceedings had not even been started and the ensuing procedural requirements are to ensure each party can properly respond, in accordance with procedural requirements, in preparation for any hearing.

[31]The Court of Appeal in The Secretary of State v VM (Jamaica)

[2017] EWCA Civ 255

(where an FtT judge ruled that the appellant was permitted to pursue a statutory appeal against a ‘fresh claim’ decision), opined at [30] that ‘The decision of this court in Secretary of State for the Home Department v Shehzad

[2016] EWCA Civ 615

makes it clear that where the FTT proceeds in excess of jurisdiction, it is appropriate for this to be taken as a ground of appeal in the UT. The party seeking to raise the issue of excess of jurisdiction is not left to pursue a claim in judicial review.’ We thus permitted Ms Isherwood to raise and rely on this ground of challenge.

[32]A statutory body the FtT only has the jurisdiction that is conferred by statute, Evans v Bartlam

[1937] AC 473

[480]. Jurisdiction cannot be extended merely by the consent of the parties whether given positively or by acquiescence. Aparau v Iceland Frozen Food plc

[1999] EWCA Civ 3047

held that ‘the industrial tribunal derives its jurisdiction entirely from statute. Moreover, it is a jurisdiction which falls to be exercised in accordance with statutory rules of procedure and within the framework of a system which provides for appeal to the Employment Appeal Tribunal. I do not think that the parties can by acquiescence or agreement enable the industrial tribunal to act outside the boundaries of the rules laid down by the statutory scheme so as effectively to clothe it with a jurisdiction which it would not otherwise possess.’

[33]The House of Lords in Watt v Ahsan

[2007] UKHL 51

, held at paragraphs 30-32 ’30. Although it is well established that the parties cannot by agreement or conduct confer upon a tribunal a jurisdiction which it does not otherwise have, the question in this case is whether an actual decision by a tribunal that it has jurisdiction can estop the parties per rem judicatam from asserting the contrary. Neither Buxton LJ nor Rimer J cited any authority which decides that it cannot. The law on this point is not at all trite. Although estoppel in pais and estoppel per rem judicatam share the word estoppel, they share very little else. The former is based upon a policy of giving a limited effect to non-contractual representations and promises while the latter is based upon the altogether different policy of avoiding relitigation of the same issues. It is easy to see why parties should not be able to agree to confer upon a tribunal a jurisdiction which Parliament has not given it. And if they cannot do this by contract, it would be illogical if they could do it by non-contractual representations or promises. But when the tribunal has decided that it does have jurisdiction, the question of whether this decision is binding at a later stage of the same litigation, or in subsequent litigation, involves, as Sedley LJ explained in his dissenting judgment, quite different issues about fairness and economy in the administration of justice. 31. Issue estoppel arises when a court of competent jurisdiction has determined some question of fact or law, either in the course of the same litigation (for example, as a preliminary point) or in other litigation which raises the same point between the same parties: see Thoday v Thoday

[1964] P 181

, 198. The question is therefore whether the EAT was a court of competent jurisdiction to determine whether the Labour Party was a qualifying body within the meaning of section 12. 32. The jurisdiction of an employment tribunal depends upon whether the facts fall within certain statutory concepts which the Act defines with varying degrees of precision. These include concepts such as a "contract of employment" (section 230 of the Employment Rights Act 1996), "redundancy" (section 139 of the 1996 Act) and, in the present case, "body which can confer an authorisation or qualification". The decision as to whether the facts found by the tribunal answer to the statutory description is sometimes treated as a question of fact (from which there is no appeal to the EAT) and sometimes as a question of law (from which there is). In either case, however, the tribunal has jurisdiction to decide the question. I can see no basis for distinguishing between questions which "go to its jurisdiction" and those which do not. A decision that a contract falls outside the jurisdiction of the Tribunal because it is for services, or for service overseas, seems to me just as much a question which goes to the jurisdiction as the question of whether the Labour Party is within the jurisdiction because it is a qualifying body. Both are decisions of fact or law, which are (subject to appeal on questions of law) within the competence of the tribunal.’

[34]In Anwar

[2010] EWCA Civ 1275

Sedley LJ again considered the point on jurisdictionand the answer to the point taken on jurisdiction was whether and when it was taken. Sedley LJ had this to say:

‘Jurisdiction 19. Was the AIT right in Ms Pengeyo’s and Mr Anwar’s cases to hold that the respective immigration judges had acted without jurisdiction? In my judgment they had jurisdiction to embark on the hearing notwithstanding that neither appellant had left the United Kingdom, but once the point was taken by the Home Office (and assuming it to be factually correct, since they might have been absent from the hearing) it operated in bar of the proceedings. Had the point not been taken in either case, the immigration judge would have been bound to proceed with the appeal. 20. The reason for this ostensibly subtle distinction is one which matters. It is the distinction between constitutive and adjudicative jurisdiction which I sought to draw in a dissenting judgment in Carter v Ahsan [2005] EWCA Civ 990, ICR 1817, §16-27, which secured approval on appeal [2007] UKHL 51, 1 AC 696. The constitutive jurisdiction of a tribunal is the power to embark upon trying specified kinds of issue. Whether a foreign national has obtained leave to enter or remain by deception is, by common consent, such an issue. Its adjudicative jurisdiction may then depend on a number of factors, such as whether the appeal has been brought within time or – as here - whether the appellant has left the United Kingdom. 21. This in turn may depend on several other things. First it must depend on whether the out-of-country rule applies at all, which is likely to be a mixed question of fact and law. IJ Callender-Smith concluded in Mr Anwar’s case that it did not apply. Secondly it may depend on whether the appellant has in fact left the country: he or she may be absent from the hearing but not, or allegedly not, from the United Kingdom. This will then be a triable issue. Until such issues have been decided it is impossible to say that the tribunal cannot hear the appeal. One must not, of course, lose sight of the words of s.92(1) of the 2002 Act: “A person may not appeal … while he is in the United Kingdom unless his appeal is of a kind to which this section applies” – and the section does not apply to an appeal against a deception decision under s.10(b): see s. 82(2)(g). But it is not every such formula which bars the door to justice. To take only the best-known example, the Limitation Act 1980, s. 2, provides: “An action founded in tort shall not be brought after the expiration of six years from the date on which the cause of action accrued.” It is trite law that unless the point is taken, this provision constitutes no bar. In consequence it can be waived by agreement or by unilateral decision. Another example can be found in requirements for leave to bring proceedings: see Adorian v Metropolitan Police Commissioner [2009] EWCA Civ 18. 22. Any apparently absolute bar to justice has to be scrutinised very carefully. The one contained in the 2002 Act is not of the kind which operates independently of the will of either party so as to bind the tribunal regardless. It offers a point which can be but need not be taken. In the present two cases, it was taken.’

[35]As Sedley LJ had already observed in The Secretary of State v Lim and Ors

[2007] EWCA Civ 773

at [17] albeit when considering precedent fact ‘It is that Khawaja [Khawaja v Sos

[1984] 1 AC 74

], far from being distinguishable as Mr Kovats contends it is, enshrines a principle of law which supersedes any question of judicial discretion. The principle is that a decision taken without power is no decision at all. Khawaja establishes that the non-existence of a precedent fact relating to immigration status can deprive the decision-maker of power to decide and render any purported decision void.’

[36]Although we agree the Tribunal ostensibly had constitutive jurisdiction (technically the FtT could hear this type of appeal), the adjudicative jurisdiction, in particular, had not even commenced owing to the lack of notice of appeal. The difficulty here is that the Tribunal in our view was not a competent court because the notice of appeal filed related to another species of appeal entirely (EUSS) rather than the human rights appeal; it was not thus open to the Tribunal without the founding block of an extant appeal in relation to the human rights decision merely to extend, assume and adopt jurisdiction for another appeal when no notice of appeal in that had even been lodged. Further as we have pointed out the judge made no decision in relation to the actual appeal filed. Once the point on jurisdiction was taken by the Secretary of State, and it was, she was, in any event, not estopped from that challenge.

[37]In LS & RS v HMRC

[2017] UKUT 0257 (AAC)

, [2018] AACR 2, albeit in relation to a different chamber of the Upper Tribunal and First-tier Tribunal, it is said at [17] that:

‘It is a common law rule that a statutory tribunal must not act outside its jurisdiction: Evans v Bartlam [1937] AC 473 at 480. This is a constitutional principle that represents the proper distribution of the judicial power of the State under the ultimate authority of Parliament. Despite counsel’s argument, there is no scope for a pragmatic approach to what is, and is not, within a tribunal’s jurisdiction. A tribunal either has jurisdiction or it doesn’t. It cannot claim jurisdiction over an issue on the basis that it is dealing with it as an academic one. Nor can its jurisdiction depend on what would, or would not, be convenient in the circumstances of a particular case or class of cases. As Black LJ said in In re X (Court of Protection: Deprivation of Liberty) (Nos 1 and 2) [2016] 1 WLR 227: 47. … I note the authorities, therefore, as a useful reminder that a pragmatic approach to litigation may sometimes be appropriate, particularly in the light of the overriding objective set out in today's procedural rules, but they do not, to my mind, constitute a licence to ignore jurisdictional and procedural rules completely nor do they permit the courts to be used to determine issues just because it would be useful to have an authoritative answer. This does not mean that pragmatic considerations may not be relevant to interpreting the legislation that confers the jurisdiction on the tribunal. They may also be relevant in the exercise of the tribunal’s case management powers. But those powers can only be exercised within the tribunal’s jurisdiction; they cannot be applied as a way to bring within the scope of the tribunal’s jurisdiction something that is not authorised by statute.’

[38]This too, indicates that no-matter how pragmatic or seemingly helpful it might be to use case management powers to waive certain procedural requirements, that option is not open to a Tribunal if they are not jurisdictionally empowered to do so. There is no inherent jurisdiction in the FtT and for it to stray beyond what it is statutorily empowered to do is ultra vires.

[39]Any power must be lawfully grounded and the determination of an appeal can only be undertaken if there is in fact an appeal before the Tribunal and the use of power must be proportionate and justified. Procedural rigour is not a matter to be dispensed with if a notice of appeal does not alert the other party to the existence of the appeal or permit them properly to follow procedural steps. We consider that without a notice of appeal the judge had no empowering provision.

[40]It is not open to the FtT, in these circumstances, to waive a lack of jurisdiction on the grounds of irregularity or under the FtT Rules (by virtue of Rule 6). This was not a matter of simply agreeing an issue of fact relevant to the FtT’s power to hear the matter because not only were the directions of the judge sent out after the hearing but moreover the judge had no underlying power to embark on the proceedings at all. In essence, the proceedings had never been commenced, in accordance with Rule 19 of the FtT Procedural Rules, against the January 2024 human rights decision (nor against the later EUSS decision of the same date). The procedural requirements for filing a notice of appeal were simply not fulfilled.

[41]As if to reinforce the point Virk

[2013] EWCA Civ 652

explained at [23] (and having cited Nirula v FtT

[2012] EWCA Civ 1436

) that ‘the FTT is a creation of statute whose jurisdiction in this case is limited by the terms of s.82 of the 2002 Act. The same goes for the UT. Statutory jurisdiction cannot be conferred by waiver or agreement; or by the failure of the parties or the tribunal to be alive to the point. Although, as Longmore LJ pointed out, decisions taken without jurisdiction may in due course become irreversible, that point has not been reached in this case. It was, in my judgment, open to either the FTT or the UT to take the point about jurisdiction notwithstanding the failure of the Secretary of State to raise it herself.’

[42]Appeal rights had been afforded in each of the three decisions relating to the appellant, but an appeal notice had only been filed in relation to the first (15th November 2023 decision); the judge simply permitted the appellant, with apparent acquiescence by the respondent, to appeal the Secretary of State’s human rights decision and the later EUSS decision. The appeal under the CRA Regulations 2020, however, is an appeal under a wholly different regime from an appeal under s82 of the 2002 Act and which can only be brought on the ground that the decision is unlawful under the Human Rights Act 1998. Both Vargova and Abdullah (EEA; deportation appeals; procedure)

[2024] UKUT 66 (IAC)

reference the scope of the different rights of appeal. The parties must be alive to the requirements to file an effective notice of appeal to each and every relevant decision, not least to avoid the danger of a jurisdictional challenge at a later date.

[43]The filing of a notice of appeal is fundamental to the commencement of proceedings in relation to the relevant decisions and in order to initiate proceedings to trigger or activate the FtT powers under the FtT Procedure Rules. The appellant had exercised an extant appeal with the FtT in relation to the previous decision of 15th November 2023 but we are not persuaded that this entitled the judge to simply extend his jurisdiction to include the human rights decision within the proceedings.

[44]In our view although it might be considered sensible and in line with the overriding objective, to attempt to permit the further appeal and consolidate the appeals which ultimately centred on human rights issues, the judge was not empowered so to do. The directions issued by the FtT judge related to the two January 2024 decisions neither of which had been appealed.

[45]Nor was the judge entitled to exercise his case management powers further to Rule 4 of the FtT Procedure Rules nor under Rule 6 in order to include consideration of a wholly separate appeal, here, in relation to the refusal of the human rights claim on deportation. The FtT Procedure Rules set out that the judge may regulate procedure (Rule 4) or waive irregularities (Rule 6) but only if he is so empowered.

[46]Further the judge made no decision on either the EUSS appeal identified in the November 2023 decision nor on the January 2024 EUSS decision. That in itself was a further material error of law.

[47]Even if we are incorrect on our approach to jurisdiction, which we do not accept, we turn to the substance of the grounds of appeal.

[48]In KO (Nigeria) v SSHD

[2018] UKSC 53

The Supreme Courthas approved the following direction as authoritative guidance on what is ‘unduly harsh’ "'unduly harsh' does not equate with uncomfortable, inconvenient, undesirable or merely difficult. Rather, it poses a considerably more elevated threshold. 'Harsh' in this context, denotes something severe, or bleak. It is the antithesis of pleasant or comfortable. Furthermore, the addition of the adverb 'unduly' raises an already elevated standard still higher."

[49]We appreciate that the circumstances of each individual child should be considered but the judge, whilst setting out the test under s117C (5) of the 2002 Act at [26] paid only lip service to the relevant test and failed to have regard to material factors. Although the judge stated that he had considered all the evidence, and we note that he found evidence of a genuine and subsisting parental relationship with the child at [42] and noted that the child’s mother was not in a relationship with the appellant [47], the judge failed properly to factor in his own finding of an ‘entrenched pattern of abusive behaviour towards female partner’, a detail also found in the OASys report of 6th June 2024.

[50]The very recent OASys report dated 6th June 2024 identified that the appellant presented with ‘an established pattern of abusive behaviour within relationships and the index offences are considered an escalation in seriousness given he has been convicted of ABH’, a risk to his ex-partner, and furthermore a risk to his own child (page 14). The OASys report added ‘Mr PINHO is assessed as posing a medium risk of serious harm to children based on the potential for children to witness his abusive behaviour, however there is nothing to indicate he has behaved abusively in front of children at this stage. Medium ROSH.’

[51]Additionally, the report stated ‘The risk is greatest in any events of binge drinking in the community in which could increase the risk. Mr PINHO can be violent to any public members when his emotional state is low and/or under the influence of alcohol. The risk increases when Mr PINHO is involved in conflict and unable to manage his emotions and reacting with physical violence. At present the risk is not imminent due to restrictions placed on Mr PINHO such as alcohol monitoring, curfew and EZ.’

[52]The appellant was recorded as posing a ‘high’ risk of serious harm to the public and known adults and the OVP risk of reoffending was ‘medium’ rising to 49% in the second year.

[53]The areas of concern noted in the OASys report included ‘9 - Alcohol Misuse 10 - Emotional Well-being 11 - Thinking and Behaviour 12 – Attitudes’

[54]The judge placed emphasis on the evidence in support of the appellant which came from the child’s mother who conjectured that not having a father present in the child’s life could cause them to develop behavioural issues and could cause problems in school and later in life, [62] and that ‘the child cries when the appellant leaves’ and she believed it ‘is in her child’s best interests to have the appellant present in his life’ [65]. The judge also identified the practical assistance she obtained from the appellant. [68].

[55]The judge then concluded ‘69. Drawing all the threads together and considering all the evidence in the round, I find that, on balance and acknowledging the high threshold, it would be unduly harsh for the Appellant’s child to remain in the UK without the Appellant. I find that the evidence demonstrates a particularly close relationship and very strong emotional bonds, and that there is strong likelihood of emotional damage to the child if the Appellant is deported to Portugal.70. I do not accept that contact via modern means of communication will be any sort of substitute for the regular in-person care and responsibility that the Appellant provides for his child. The likelihood of visits is remote considering the potential costs involved, and again these would not be sufficient to limit the potentially huge emotional damage to the child if they are separated from the regular care of the Appellant.

71. Overall, I find that, on balance, the evidence demonstrates that the long-term effect of the Appellant’s deportation on the Appellant’s child would be unduly harsh.’

[56]The judge placed great reliance on the evidence of the mother of the appellant’s child. In the OASys report at page 21, she is described as his current partner and we note, however, the OASys report recorded as follows:

‘Police callout information has been received and details a number of incidents whereby Mr Pinho is listed as the perpetrator of domestic violence against multiple partners and there are 5 known female victims of his behaviour. This has included his current partner. There have also been verbal arguments with his mother. Probation records highlight that the victim of the previous battery offence outlined in her statement that Mr Pinho had on previous occasions thrown an electric heater at her, thrown a steam mop at her, threatened to hit her with a weight and threatened to throw acid in her face, along with physical assaults. There is an established pattern of abusive behaviour within relationships and the index offences are considered an escalation in seriousness given he has been convicted of ABH.’

[57]The child was born on 2nd August 2023, and the appellant incarcerated in October 2023 and was not even released from prison until 9th September 2024. The hearing was less than 2 months later. For much of the child’s life the appellant had been in prison.

[58]The judge also failed to identify the salient parts of the OASys report, failed to record that the appellant remained subject to a restraining order from 23rd November 2023 to 2nd November 2028 (page 19 of the OASys report), and failed to explain adequately his conclusions that the effect of removal on the child would be ‘unduly harsh’ in the light of his previous findings (set out in the Secretary of State’s grounds above and which we do not repeat).

[59]In sum the reasoning was inadequate in the light of the relevant material factors, the evidence proffered, and the circumstances described by and findings of the judge himself who did not apply the legal test of ‘unduly harsh’.

[60]In terms of disposal both parties submitted that in the event of an error of law the matter could be retained in the Upper Tribunal. Ms Isherwood submitted, and we agree, that no findings should be preserved. The evidence given at the hearing in the FtT nevertheless is recorded and stands. Notice of Decision The Judge erred materially for the reasons identified. We set aside the decision pursuant to Section 12(2)(a) of the Tribunals Courts and Enforcement Act 2007 (TCE 2007) and considered retaining the matter in the Upper Tribunal for remaking under section 12(2)(b)(ii) of the TCE 2007. However, we find there was a procedural error in that the judge, exceeding his powers in considering the human rights appeal, also failed to consider the matter on the EUSS decisions (although we note that the second refusal under the EUSS on 16th January 2024 was on the basis that a deportation order had been made). The judge is obliged to make a decision on the appeals before him. We thus remit this matter to the FtT. (i). formal notices of appeal in relation to the two 16th January 2024 decisions (ii). an application to extend time. (iii). a request to have the appeals consolidated. Helen Rimington Judge of the Upper Tribunal Immigration and Asylum Chamber 31st July 2025