Upper Tribunal Immigration and Asylum Chamber

[2025] UKUT 00349 (IAC)

Fecha: 22-Abr-2025

The hearing before us

The hearing before us

35.

At the hearing before us, we had each appellant’s composite bundles prepared for the error of law hearing, an appellants’ skeleton argument dated 22 November 2024, an appellants’ supplementary bundle of updating evidence and application for admission of that evidence under Rule 15(2A) of the Tribunal Procedure (Upper Tribunal) Rules 2008, and a skeleton argument on behalf of the respondent, dated 17 April 2025.

36.

The appellants’ skeleton argument raised the following challenges to the respondent’s decisions:

(i)

The respondent had failed to exercise her discretion lawfully because she had failed to take into account all relevant circumstances, in particular, the fact that she was depriving both appellants at the same time; this was a particularly significant failure in Mrs Mujaj’s decision, because the decision to deprive Mr Mujaj had by then already been taken;

(ii)

The respondent had failed to comply with her section 55 duty because:

She had failed to take into account the material factor that both parents were facing deprivation at the same time;

She had not turned her mind to the identities or circumstances of the children. Instead, she had simply referred to the number of children and then inserted a template paragraph asserting that they would not be significantly affected by the decision; and

She had failed to comply with her duty of enquiry and did not have sufficient information before her to make a rational decision about the children’s best interests;

(iii)

The respondent had asserted in both decisions that the “limbo period” between the deprivation order and a new decision granting or refusing leave would be eight weeks. This was factually incorrect, as a Freedom of Information response dated 31 August 2021 indicated that the average time between the making of a deprivation order following a dismissed appeal and a grant of leave to remain was 257 days. Moreover, the respondent had failed to comply with her duty of candour (which applied given the public law principles in play) by not providing updating statistics to evidence that the limbo period was only eight weeks, as she claimed; and

(iv)

The decisions were disproportionate under article 8.

37.

The appellants’ skeleton argument could be read as suggesting that there were three discrete public law grounds (failure to take into account all relevant factors in the exercise of discretion; failure to comply with the section 55 duty; and mistake of fact and lack of candour as to the limbo period). In a preliminary discussion and in submissions before us, however, both sides agreed that all of the public law challenges related to the lawfulness of the respondent’s exercise of her discretion. For the reasons set out below, we agree.

38.

We heard evidence in English from Mr and Mrs Mujaj and their eldest child. They all adopted their statements. Mr Mujaj answered further questions on direct and cross-examination, and all three appellants answered questions from Judge O’Callaghan. We then heard submissions from both representatives, for which we are grateful. Rather than rehearsing them here, we will refer to the evidence and the submissions, where relevant, in the discussion below.

39.

At the end of the hearing, we reserved our decision, which we now give with our reasons.