UK Upper Tribunal (Immigration and Asylum Chamber)’s Decision in the matter of Da Silva Pinho

Facts: Hamilton Jorge Da Silva Pinho, a Portuguese national born on February 15, 1988, entered the UK in August 2009 at age 21 with his parents. He was granted pre-settled status under the EU Settlement Scheme (“EUSS”) on November 19, 2019, which expired on November 20, 2024. On October 20, 2021, he applied for settled status under the EUSS. His criminal record includes: a 2011 caution for threatening behavior; a 2013 caution for theft; a 2015 conviction for battery (community order and restraining order); a 2017 conviction for property destruction (conditional discharge); and a 2023 conviction for three counts of assault occasioning actual bodily harm (20 months' imprisonment, restraining order until 2028).

On November 15, 2023, the Secretary of State issued a Stage 1 Deportation Decision Notice. On January 16, 2024, a deportation decision was issued, refusing his human rights claim (with appeal rights under s82 of the Nationality, Immigration and Asylum Act 2002 (“NIAA 2002”) and refusing his EUSS application (with appeal rights under the Immigration (Citizens' Rights Appeals) (EU Exit) Regulations 2020 (“CRA Regulations 2020”). Pinho filed a notice of appeal only against the November 15, 2023 decision under the CRA Regulations 2020.

The First-tier Tribunal (“FtT”) heard the case on November 8, 2024. The FtT judge issued directions on November 13, 2024, noting the appeal was only against the Stage 1 decision but proceeded to determine it as if appeals had been filed against the January 2024 decisions, invoking case management powers under Rule 6 of the FtT Procedure Rules to waive procedural irregularities. Neither party responded to the directions. On December 6, 2024, the FtT allowed the appeal on human rights grounds (Article 8), finding deportation unduly harsh on Pinho's 15-month-old child.

The Secretary of State appealed to the Upper Tribunal, arguing inadequate reasons for the "unduly harsh" finding and, as raised during proceedings, lack of FtT jurisdiction over the human rights appeal.

The Upper Tribunal heard the case on May 21, 2025, and promulgated its decision on September 11, 2025.

Issue: Whether the FtT had jurisdiction to determine the human rights appeal against the January 16, 2024 deportation decision when no notice of appeal was filed against it, rendering the FtT's actions ultra vires; and, alternatively, whether the FtT judge erred in law by misdirecting himself on the "unduly harsh" test under s117C(5) of the NIAA 2002 and failing to provide adequate reasons for his findings.

s117C(5) of the NIAA 2002 states as follows: 

“Exception 2 applies where C has a genuine and subsisting relationship with a qualifying child, and the effect of C’s deportation on the child would be unduly harsh.”

Decision: The Upper Tribunal allowed the Secretary of State's appeal and set aside the FtT decision pursuant to s12(2)(a) of the Tribunals, Courts and Enforcement Act 2007. The case was remitted to the FtT for a fresh hearing, with no findings preserved. The Upper Tribunal noted that Pinho could now submit notices of appeal against the January 16, 2024 decisions, along with applications to extend time and consolidate appeals.

Analysis: The Upper Tribunal emphasized that the FtT, as a statutory body, has no inherent jurisdiction and must act within powers conferred by statute; actions beyond this are ultra vires. Filing a notice of appeal under Rule 19 of the FtT Procedure Rules is fundamental to commencing proceedings and activating case management powers. Appeals under the CRA Regulations 2020 (limited to breaches of EU Withdrawal Agreement rights or citizens' rights decisions) are distinct from s82 appeals under the NIAA 2002 (limited to human rights grounds). No notice was filed against the human rights decision, so proceedings were never commenced for it. The FtT judge could not use Rules 4 or 6 to waive this or extend jurisdiction, even with party acquiescence, as jurisdiction cannot be conferred by agreement or oversight (citing cases like Evans v Bartlam, Aparau v Iceland Frozen Food, Watt v Ahsan, and Virk). The jurisdictional issue could be raised at any stage, and the FtT also erred by not deciding the actual EUSS appeals before it. 

Alternatively, even if jurisdiction existed, the FtT's application of the "unduly harsh" test (requiring an elevated threshold of severe or bleak impact, per KO (Nigeria)) was flawed. The decision contradicted the judge's own findings of Pinho's entrenched abusive behaviour toward female partners, downplaying of offenses, and dishonesty about Portugal ties. It ignored the June 2024 OASys* report, which assessed Pinho as a medium risk of serious harm to children (via witnessing abuse) and high risk to known adults/public, with a medium reoffending risk. The judge over-relied on the mother's speculative evidence of emotional harm to the child without independent corroboration (e.g., no social worker report or medical records), despite the child's young age (15 months), Pinho's limited involvement due to imprisonment, and the mother's ability to cope alone. The reasoning was inadequate, failing to explain why the high threshold was met cumulatively.

Link: https://www.bailii.org/uk/cases/UKUT/IAC/2025/317.html

Citation: [2025] UKUT 317 (IAC), [2025] WLR(D) 50

Notes:

 

* Offender Assessment System is a structured risk and needs assessment tool used by the UK Prison and Probation Service. It assesses (i) risk of reoffending, (ii) risk of serious harm (to the public, known adults, children, and staff) and (iii) criminogenic needs (factors linked to offending, such as substance misuse, relationships, or attitudes). The assessment produces a standardized report (the OASys report) used in sentencing, parole decisions and deportation proceedings (especially in immigration appeals involving foreign national offenders). In the Da Silva Pinho case, the June 2024 OASys report assessed the appellant as (i) medium risk of serious harm to children (if they witnessed domestic disputes), (ii) high risk of serious harm to known adults and the public and (iii) medium risk of reoffending.