Kofi Osei-Bonsu v Secretary of State for The Home Department

A tribunal must give the parties an opportunity to make submissions before departing from a concession that a parental relationship is genuine and subsisting. That concession establishes a threshold condition under section 117C(5) of the Nationality, Immigration and Asylum Act 2002. Undue harshness remains a separate, cumulative requirement, assessed through the evidence about the relationship and the practical and emotional impact of deportation.

A procedural error is immaterial where the outcome would inevitably have been the same without it. Lawful factual findings and an independently sound alternative assessment can establish that inevitability. The procedural error does not itself demonstrate that those findings or that assessment were tainted.

The appellant, a Ghanaian citizen, was convicted of sexual offences against his stepdaughter and sentenced to 26 months’ imprisonment. The Secretary of State decided to deport him and refused his human rights claim. She accepted that he had a genuine and subsisting parental relationship with his British son, based on information confirming contact during imprisonment. His subsequent contact with his son was limited and supervised.

The First-tier Tribunal dismissed his appeal. Although the Secretary of State maintained her concession, the tribunal investigated the relationship and found that it was not genuine and subsisting. It also concluded, in the alternative, that deportation would not have unduly harsh consequences for the son if he remained in the United Kingdom with his mother. The Upper Tribunal accepted that departing from the concession without warning the parties was an error of law, but held that the error was immaterial.

The appellant appealed with permission. The central issues were whether the procedural error could have affected the outcome and whether it had tainted the factual findings and alternative assessment of undue harshness.

The appeal was dismissed unanimously. Elisabeth Laing LJ delivered the principal judgment. Males LJ delivered an additional judgment, and Whipple LJ agreed with both.

1. The First-tier Tribunal had acted unfairly by departing from the maintained concession without warning the parties and allowing submissions. Investigating and deciding the conceded question, and finding that the parental relationship was not genuine and subsisting, were linked procedural errors. Their effect was limited because undue harshness remained contested and the appellant had presented evidence and argument on that issue (paras 66–69, 83).

2. Exception 2 in section 117C(5) of the Nationality, Immigration and Asylum Act 2002 imposed cumulative requirements. Acceptance of a genuine and subsisting parental relationship established a threshold condition. It said very little about the relationship’s nature or quality and did not establish that deportation would be unduly harsh. The limited terms of the concession therefore mattered (paras 66–68, 81–82).

3. Under section 12(2)(a) of the Tribunals Courts and Enforcement Act 2007, finding an error of law did not automatically require the determination to be set aside. An error was immaterial where the outcome would necessarily or inevitably have been the same without it. The formulation in Secretary of State for the Home Department v AJ (Angola) [2014] EWCA Civ 1636 asked whether any rational tribunal must have reached the same conclusion on the material before it (paras 70–75).

4. The undue harshness standard was highly elevated. Applying HA (Iraq) v Secretary of State for the Home Department [2022] UKSC 22, the tribunal had to assess the relationship’s nature and quality to understand deportation’s practical and emotional impact on the child. The findings about limited contact and support, and the weaknesses in the social worker’s evidence, supported the alternative conclusion. The tribunal had considered permanent separation and its long-term effects. No rational tribunal could have found undue harshness on the evidence before it (paras 36–43, 74–75, 84–86).

5. The procedural error had no legal or factual connection, in this case, with the otherwise lawful factual findings or undue harshness assessment. The appellant identified no finding infected by the error. The tribunal had independently decided the question it would have needed to decide had it accepted the concession. That conclusion contained no error of law, and the outcome would inevitably have been unchanged. The Upper Tribunal’s dismissal of the appeal therefore stood (paras 73, 75–77, 86–87).

1. Court of Appeal (Civil Division): In [2026] EWCA Civ 1304 , unanimously dismissed the appeal and upheld the Upper Tribunal’s conclusion that the First-tier Tribunal’s procedural error was immaterial.
2. Upper Tribunal (Immigration and Asylum Chamber): Upper Tribunal Judge Hirst dismissed the appeal in case UI-2025-003235. The tribunal recognised the error in departing from the concession without warning, but held that the alternative undue harshness assessment made it immaterial. No judgment citation was stated.
3. First-tier Tribunal (Immigration and Asylum Chamber): Dismissed the appeal against the Secretary of State’s refusal of the human rights claim. It rejected the conceded parental relationship and alternatively found that deportation would not be unduly harsh. No judgment citation was stated.