Background
Darius Hirtie, a Romanian national with a partner and two young children in the United Kingdom, received a 39-month prison sentence after pleading guilty to wounding with intent and breaching a community order. The Home Secretary rejected his human-rights claim and decided to deport him as a foreign criminal, concluding that his family could remain in the United Kingdom without him.
The First-tier Tribunal allowed Hirtie’s appeal. Although neither child was a “qualifying child” and the statutory exceptions to deportation did not apply, it found very compelling circumstances outweighing the public interest in deportation. Its conclusion rested principally on the profound effect that permanent separation would have on Hirtie’s partner, given her traumatic childhood, mental-health difficulties, limited support, and responsibility for two young children, together with the resulting harm to the children. The Upper Tribunal found no material error of law and upheld that decision.
The Court’s Holding
The Court of Appeal unanimously dismissed the Home Secretary’s appeal. It refused to permit her to argue that the tribunals should have considered whether Hirtie’s partner and children could relocate to Romania. That “go” scenario had not formed part of the Home Secretary’s case before the First-tier Tribunal and had been unequivocally withdrawn as a ground of appeal before the Upper Tribunal. Raising it now would require new evidence and would be inconsistent with the parties’ duty to identify the issues in dispute before the First-tier Tribunal.
The Court also rejected the challenge to the finding of very compelling circumstances. Read fairly, the First-tier Tribunal had applied the correct statutory test, recognized the very significant public interest in deporting foreign criminals, and conducted the required proportionality assessment. Its fact-specific findings about the likely impact on Hirtie’s partner and children were open to it on the evidence, despite the absence of expert medical evidence, and were neither speculative nor perverse.
Key Takeaways
- A tribunal generally is not required to decide an issue that the parties did not identify as disputed and that was not otherwise obviously necessary to resolve.
- A party ordinarily cannot revive in the Court of Appeal a fact-sensitive ground that it unequivocally withdrew before the Upper Tribunal, particularly where the point would require new evidence.
- Expert medical evidence is not invariably required before the First-tier Tribunal may assess the likely psychological impact of deportation on witnesses whose evidence it has heard and accepted.
Why It Matters
The judgment reinforces issue-based case management in immigration appeals: the Home Secretary, like any other party, must identify the grounds on which a deportation decision is defended, and appellate proceedings are not an opportunity for rolling reconsideration of the case.
It also confirms that a medium offender who cannot satisfy the statutory exceptions may still resist deportation where the evidence establishes very compelling circumstances over and above those exceptions. Such determinations are intensely fact-sensitive, and appellate courts should not interfere with properly reasoned evaluative findings merely because the balance was narrow.