Parental-Relationship Concessions and Deportation: Procedural Error Is Immaterial Only Where the Outcome Was Inevitable

1. Introduction

This judgment addresses the consequences of a tribunal’s procedurally unfair departure from an express concession in a deportation appeal. The Secretary of State had accepted that the appellant had a genuine and subsisting parental relationship with his British son, N. The First-tier Tribunal nevertheless decided that no such relationship existed, without first giving the parties an opportunity to address its proposed departure from that concession.

That was an acknowledged error of law. The decisive question, however, was whether it affected the outcome. The tribunal had also considered, as an alternative, whether deportation would have an “unduly harsh” effect on N, and had concluded that it would not.

The Court of Appeal unanimously dismissed the appeal. Its central distinction was between accepting the existence of a parental relationship and evaluating its nature, quality and practical significance. The concession established the former; it did not determine the latter or establish that deportation would be unduly harsh. On the evidence and the tribunal’s independently sustainable findings, the outcome would inevitably have been the same.

The judgment therefore reinforces existing principles rather than replacing them: concessions must be handled fairly, the undue-harshness threshold remains demanding, and an appellate tribunal must distinguish an actual legal error from an error capable of changing the result.

2. Background and Procedural History

The deportation decision

The appellant, a Ghanaian citizen, claimed to have entered the United Kingdom in 2004. He first obtained leave to remain in 2016 as the parent of a British child. In June 2023, he was convicted of three sexual offences involving his stepdaughter, R, and sentenced to 26 months’ imprisonment. He was also subject to sex-offender notification requirements for ten years.

The Secretary of State subsequently decided to deport him and refused his human-rights claim. His sentence brought him within the statutory framework governing the deportation of foreign criminals.

Although the appellant had supplied little supporting material at the administrative stage, the Secretary of State accepted that he had a genuine and subsisting relationship with N. That acceptance rested on confirmation from his offender manager and the local authority that contact had occurred during imprisonment. It did not involve accepting that the appellant played a substantial caring role or that separation would cause exceptionally serious consequences.

The First-tier Tribunal

By the tribunal hearing, the appellant relied on witness evidence from himself and his partner, P, an independent social worker’s report, and material concerning N’s circumstances. The Home Office Presenting Officer ultimately confirmed that the parental-relationship concession was maintained.

Despite recording that position, the tribunal later treated the relationship as disputed and found that the appellant had not established a genuine and subsisting parental relationship. Its reasoning examined the limited and supervised contact, the absence of persuasive evidence of practical or emotional support, witness credibility, and weaknesses in the social worker’s report.

The tribunal nevertheless addressed the alternative position. Assuming that a qualifying relationship existed, it found that it would be unduly harsh for N to relocate to Ghana, but not unduly harsh for him to remain in the United Kingdom with P while the appellant was deported. It also rejected the wider case based on very compelling circumstances.

The Upper Tribunal and Court of Appeal

The Upper Tribunal accepted that departing from the concession without warning was an error of law. It nevertheless upheld the decision because the alternative undue-harshness assessment meant that the error was immaterial.

Before the Court of Appeal, the appellant principally argued that the erroneous rejection of the relationship had infected the tribunal’s entire assessment. He also challenged its application of the undue-harshness test, particularly its treatment of restricted contact and the long-term consequences of separation.

3. The Statutory Framework

The relevant protection was Exception 2 under section 117C(5). As applied to this appeal, it required both:

1. a genuine and subsisting parental relationship with a qualifying child; and
2. an unduly harsh effect on that child from deportation.

N’s British citizenship made him a qualifying child. The appellant did not rely on Exception 1, concerning private life, because he had not been lawfully resident in the United Kingdom for most of his life.

The two requirements under Exception 2 are cumulative. Establishing the relationship does not dispense with proving the consequences of separation. Nor should the more favourable “reasonableness” provision in section 117B(6), which concerns people not liable to deportation, be confused with the demanding test applicable here.

4. Summary of the Decision

Lady Justice Elisabeth Laing’s principal judgment identified four questions: the effect of the procedural error, the applicable materiality test, whether that test was satisfied, and whether the factual findings supporting the alternative decision were tainted.

• The hearing was procedurally unfair: the tribunal should not have departed from the maintained concession without allowing submissions.
• The concession had limited substantive reach: it established the existence of a relationship, not its depth or the severity of separation’s effects.
• Materiality required an inevitability assessment: the issue was whether the result necessarily would have been the same without the error.
• The alternative findings were legally sustainable: no particular factual finding was shown to have been infected by the procedural mistake.
• The outcome was inevitable: on the evidence, no rational tribunal could have found that deportation would have an unduly harsh effect on N.

Lord Justice Males agreed, emphasising the cumulative statutory requirements and the weakness of the evidence against the highly elevated undue-harshness threshold. Lady Justice Whipple agreed with both judgments.

5. Precedents Cited and Their Influence

HA (Iraq) v Secretary of State for the Home Department [2022] UKSC 22

This was the principal substantive authority. The Court of Appeal relied particularly on the Supreme Court’s explanation that “unduly harsh” means substantially more than uncomfortable, inconvenient, undesirable or merely difficult. “Harsh” denotes something severe or bleak; “unduly” raises that already elevated standard further.

The authority supplied both the threshold and the evidential approach. A tribunal must assess the particular child’s practical and emotional circumstances, rather than assume that the existence of a parental relationship establishes undue harshness. The judgment also recognised that the test remains below the separate “very compelling circumstances” standard.

The appellant invoked this authority to argue that the tribunal had taken only a snapshot of restricted contact and had failed to consider permanent separation. The Court rejected that reading of the determination: the tribunal had expressly considered the long-term dislocation from a parent and the permanence of deportation.

The Secretary of State also relied on paragraph 98 against speculative reconstruction of what the relationship might have become without restrictions. The authority supported deciding the case on evidence rather than conjecture. The Upper Tribunal had additionally reminded itself of paragraph 72 when reviewing the First-tier Tribunal’s decision.

KO (Nigeria) and the “MK self-direction”

These appeared within the passage from HA (Iraq) v Secretary of State for the Home Department reproduced by Lord Justice Males. Their significance was the authoritative wording of the undue-harshness direction, particularly the contrast between ordinary difficulty and severe or bleak consequences.

The present judgment did not undertake a separate examination of either decision’s facts or wider reasoning. Their role was to explain the established doctrinal foundation of the threshold being applied.

MI (Pakistan) v Secretary of State for the Home Department [2021] EWCA Civ 1711

The Secretary of State cited paragraphs 21 and 25 in support of distinguishing a relationship’s existence from its quality. A genuine and subsisting parental relationship may involve limited contact or, at the other end of the spectrum, extensive care and emotional dependence.

The principal judgment accepted that essential distinction, although it did not separately analyse those passages. The authority’s significance lay in resisting the proposition that a concession on the relationship’s existence effectively conceded the consequences of separation.

Simplex GE (Holdings) v Secretary of State for the Environment (1988) 57 P & CR 306

This authority supported the traditional common-law approach to withholding relief where an unlawful decision would necessarily or inevitably have been the same without the error. The Court cited Purchas LJ at page 327 and Staughton LJ at page 329.

Its function was analogical. It helped explain why identifying unlawful decision-making does not invariably require setting the decision aside.

R (Smith) v North East Derbyshire Primary Care Trust [2006] 1 WLR 3315

Paragraph 10 of May LJ’s judgment was cited for the same common-law inevitability principle. Together with the other public-law authorities, it supported a demanding counterfactual inquiry: what would have happened if the decision-maker had proceeded lawfully?

Secretary of State for Communities and Local Government v South Gloucestershire Council [2016] EWCA Civ 74

Paragraph 25 of Lindblom LJ’s judgment supplied further support for that traditional approach. The Court expressly referred to the common law preceding section 31(2A) of the Senior Courts Act 1981; it did not purport to apply that statutory judicial-review provision directly to this tribunal appeal.

Secretary of State for the Home Department v AJ (Angola) [2014] EWCA Civ 1636

This provided the most directly relevant immigration formulation. Sales LJ described the question as whether, on the materials before the First-tier Tribunal, “any rational tribunal must have come to the same conclusion”.

That is materially stricter than asking whether the original outcome was merely available or reasonable. It requires excluding a rationally different result under the correct legal approach.

ASO (Iraq) v Secretary of State for the Home Department [2023] EWCA Civ 1282; [2024] Imm AR 145

The Court noted that this decision applied Secretary of State for the Home Department v AJ (Angola) when considering materiality in an asylum appeal. It confirmed the continuing relevance of that formulation within immigration appellate adjudication.

Jafri v Lincoln College [2014] EWCA Civ 449; [2015] QB 781

This employment authority offered a cross-jurisdictional comparison. Laws LJ explained that, after identifying a legal error, an appeal tribunal must remit unless, so far as relevant here, it concludes that the error cannot have affected the result.

The comparison reinforced the boundary between correcting legal error and conducting a fresh factual evaluation. An appellate body cannot preserve a decision simply because it prefers the same outcome; it must be satisfied that the error made no difference.

6. Analysis of the Court’s Reasoning

A. A concession must be respected, but only within its actual scope

The Court did not minimise the tribunal’s procedural obligation. The concession had been expressly maintained, and the tribunal itself had recorded that position. Deciding against it without warning denied the parties an opportunity to make submissions. The hearing was therefore unfair notwithstanding the appeal’s ultimate failure.

However, fairness did not require enlarging the concession beyond its terms. The Secretary of State had accepted a relationship on a narrow evidential basis: confirmed contact during imprisonment. There was no acceptance of extensive involvement in N’s care, significant emotional dependence, or serious harm from separation.

The appellant and his representatives accordingly knew that further evidence was necessary. Their witness statements and commissioned report demonstrated that the effects of deportation remained contested. The procedural error did not unexpectedly introduce the need to prove undue harshness; that had always been central to the appeal.

B. Materiality is not established merely by identifying unfairness

The judgment separates two questions that must not be collapsed:

1. Did the tribunal act unlawfully?
2. Could that unlawfulness have affected its decision?

The answer to the first was yes. The answer to the second was no. Section 12(2)(a) recognises that not every error requires a determination to be set aside.

Crucially, the Court did not rest solely on the proposition that the alternative conclusion was “open” to the tribunal. Its express conclusion was stronger: had the concession been correctly accepted, the outcome would inevitably have been the same, and no rational tribunal could have found undue harshness on the evidence.

This distinction protects against excessive appellate intervention while preserving meaningful scrutiny. An inevitable result may survive an error; a merely plausible result is not enough to demonstrate immateriality.

C. Alternative findings are effective only if genuinely independent

The appellant accepted that tribunals may decide issues in the alternative. His argument was that this alternative decision was contaminated by the erroneous rejection of the relationship.

The Court rejected that argument because it identified no particular tainted finding. The tribunal’s mistake concerned its entitlement to reopen the conceded threshold issue. Its factual examination of contact, support and dependence remained relevant to the separate assessment of deportation’s effects.

There was therefore overlap between the evidence relevant to the two statutory requirements, but no demonstrated causal connection between the procedural error and the factual conclusions. Findings do not become unusable merely because they appear within reasoning addressing an issue that should not have been reopened.

The qualification is important: the judgment does not make alternative reasoning an automatic cure. If the error had distorted credibility findings, excluded relevant evidence or otherwise undermined the second assessment, the materiality analysis would have been different.

D. The assessment depended on the evidence about this child

The tribunal accepted that some contact occurred and that N would be upset by separation. It nevertheless found insufficient evidence of the severity required by section 117C(5). Relevant considerations included:

• limited, supervised contact, without persuasive evidence of its regularity;
• little reliable evidence of substantial practical or emotional support;
• no established ongoing financial support;
• N’s continued care by P, with social-services involvement and school support;
• weaknesses in the social worker’s sources, analysis and account of N’s individual needs.

The social worker had relied heavily on the adults’ accounts, lacked relevant medical and educational documents, and offered general observations concerning suspected autism rather than an adequately evidenced assessment of N’s particular functioning. The report’s brief conversation with N also provided a limited foundation for its conclusions.

The point was not that learning difficulties or autism could be disregarded without a formal diagnosis. It was that generic references did not establish how deportation would affect this child. Individualised evidence, not a diagnostic label or general proposition, was needed to support the asserted consequences.

E. Restrictions on contact remained part of the factual assessment

The written grounds suggested that restrictions imposed through licence conditions and social services could not lawfully diminish the significance attributed to the parental bond. That argument was not pursued orally, and no supporting authority was identified.

The Court’s treatment does not establish that restricted contact is necessarily emotionally insignificant. Rather, it provides no support for ignoring actual safeguarding arrangements or replacing them with speculation about an unrestricted relationship.

Lord Justice Males stressed the protective purpose of supervision. The restrictions arose from risks relevant to N’s safety. They were therefore part of the real circumstances in which the relationship and the consequences of deportation had to be assessed, not facts that the tribunal was required to disregard.

F. Best interests and permanent separation were considered

The tribunal expressly recognised the permanence of deportation and the need to consider dislocation from a parent across the child’s life, not merely immediate distress. That answered the allegation that it had taken only a snapshot of existing arrangements.

It also considered N’s best interests, including remaining in the United Kingdom, continuity of care and support, and his relationship with R. Best interests did not automatically equate to preserving in-person contact with the appellant. In the particular safeguarding circumstances, the tribunal found that N’s interests lay in remaining with P without the appellant.

The resulting conclusion was therefore not simply that a child could adapt to separation. It rested on findings about N’s actual support network, the limited established parental role, and the absence of persuasive evidence of sufficiently severe consequences.

7. Likely Impact and Limits

Concessions will require precise drafting and handling

Parties should distinguish concessions about a relationship’s existence from concessions about care, dependency or likely harm. Tribunals contemplating departure must first invite submissions. The judgment preserves that fairness requirement even where the eventual error proves immaterial.

Materiality challenges must identify a concrete difference

A party alleging that alternative reasoning was “infected” should identify which finding was affected and explain how lawful procedure could have produced a rationally different outcome. Conversely, a respondent defending the result must do more than show that the outcome was available: the requisite inevitability must be demonstrated.

Expert evidence must address individual circumstances

Reports are more persuasive when they engage with relevant records, safeguarding history, the child’s particular needs and a reasoned assessment of future effects. The label “independent” does not substitute for reliable sources or analysis.

The decision is not a general rule against parents with limited contact

The outcome depended on the findings and evidence in this case. Limited or supervised contact may have substantial emotional significance in another case. Nor does the judgment establish that parental wrongdoing automatically resolves the child-focused undue-harshness assessment.

Its narrower precedential significance is that a modest relationship concession does not insulate the asserted depth of that relationship from scrutiny, and an independently sound alternative determination can render an unfair departure from the concession immaterial.

8. Complex Concepts Simplified

Genuine and subsisting parental relationship

A real and continuing parental relationship. Its existence does not itself establish extensive care, deep dependence or serious consequences from separation.

Cumulative requirements

Requirements that must all be satisfied. Here, both the qualifying relationship and undue harshness had to be established.

Unduly harsh

A highly elevated threshold involving more than ordinary distress, inconvenience or difficulty. It requires assessing the particular child’s circumstances.

Material error of law

A legal mistake capable of affecting the result. An error is immaterial where the lawful outcome would inevitably have been the same.

Alternative findings

A tribunal’s explanation of what it would decide if its primary conclusion were wrong. Such findings can preserve a decision only if they remain legally sound.

Tainted findings

Findings whose reliability or validity has been undermined by an earlier error. Shared subject matter alone does not establish contamination.

9. Conclusion

The Court of Appeal upheld the deportation decision despite recognising a procedurally unfair hearing. The decisive point was that accepting the conceded parental relationship would not have changed the independently sustainable assessment of its consequences.

The judgment’s enduring lesson is twofold: procedural fairness remains obligatory, but appellate relief depends on materiality; and a genuine parental relationship is the starting point, not the answer, when deciding whether deportation would be unduly harsh.