Tribunal decisions

The decision

IN THE UPPER TRIBUNAL
IMMIGRATION AND ASYLUM CHAMBER
Case No: DA/00601/2018

THE IMMIGRATION ACTS

Decision & Reasons Issued:
On 30 June 2025

Before

UPPER TRIBUNAL JUDGE BRUCE

Between

VANGEL GKIKA
(no order for anonymity)
Appellant
AND

SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:

For the Appellant: Mr Toora, Counsel instructed by Karis Solicitors
For the Respondent: Mr Wain, Senior Home Office Presenting Officer

Heard in Field House on 2 June 2025

DECISION AND REASONS
1. The Appellant is a dual national of both Albania and Greece. He was born on the 4 June 1975. The Secretary of State seeks to deport him to Greece pursuant to Regulation 27 of the Immigration (European Economic Area) Regulations 2016.

Background
2. The Appellant has lived in the United Kingdom since 2013. Prior to this he had lived in Greece, where he naturalised as a citizen, since 1991.
3. In February 2016 the Appellant perpetrated a sustained and violent assault on a man with whom he had been having a protracted dispute. The two had known each other for many years; their mothers were friends and neighbours. The relationship had however soured and the Appellant and his victim had exchanged countless abusive messages, which included threats to the other. On the day of the assault the Appellant took the London underground to the area where he knew his victim would be. He attacked him using an umbrella, which he used with such force that it disintegrated. When it did so, the Appellant took the man’s head and banged it twice onto the pavement where he had been standing. The victim required surgery, having sustained a broken cheekbone and scarring to his face. At the date of the trial in July 2017 he was still suffering from dizziness and anxiety. The Appellant was charged with grievous bodily harm. He initially sought to defend the charges but entered a plea of guilty on the morning his trial began. Upon conviction he was sentenced to 32 months imprisonment. The trial judge also imposed a ten-year restraining order.
4. The Appellant was released from custody in 2018. He returned to live with his wife and children at their home in Surrey. It is not in dispute that the index offence is his one and only conviction. On the 9 December 2021 he made an application for the restraining order to be discharged. This was refused by the trial judge, who inter alia had regard to the wishes of the victim that the order remain in place. That order is due to expire in August 2027.
5. The Secretary of State signed a deportation order against the Appellant on the 12 September 2018 and on the same date issued a detailed letter giving reasons for that decision. It was noted that the Appellant had not accrued any enhanced protection against deportation, for instance by having a permanent right of residence. As such it was for the Secretary of State, in accordance with Regulation 27(5), to establish that the “personal conduct of the person concerned represents a genuine, present and sufficiently serious threat affecting one of the fundamental interests of society”. The Secretary of State had regard to the circumstances of the attack perpetrated by the Appellant; independent witnesses had described him as the aggressor, and the assault was a serious one. The consequences for those affected by violence of this nature are enormous. The Secretary of State concluded that the Appellant has shown by his actions that day that he has the potential to cause others serious harm. There is no guarantee that he would behave in the same way again should the opportunity present itself and the public have a right to be protected. Accordingly the Secretary of State concluded, having regard to the principle of proportionality, that the Appellant’s deportation was a justified interference with his right to freedom of movement.
6. The Appellant appealed to the First-tier Tribunal. In a decision dated the 16th March 2020 the Tribunal dismissed the appeal, having found the Secretary of State to have discharged the burden of proof.
7. The Appellant was granted permission to appeal to the Upper Tribunal on the 20th April 2020.
8. On the 17th September 2020 the matter came before me, sitting remotely from Manchester Civil Justice Centre. The Appellant was that day represented by Mr Kerr of Counsel, and the Secretary of State by Senior Presenting Officer Mrs Aboni. Having heard the submissions of the parties I decided that the decision of the First-tier Tribunal was flawed for error of law and by my written decision of the 29th September 2020 I set it aside. My reasons were as follows:
i) The Tribunal had erred in placing significant weight on material matters/making a mistake of fact. It had expressly drawn adverse inference from the Appellant’s failure to complete any rehabilitative courses whilst in prison. In fact the evidence before the Tribunal had shown that no such courses had been made available to the Appellant, because as a first-time offender he was not deemed a sufficiently high risk to justify the expense;
ii) The decision was flawed for misdirection. The burden of proof lay on the Respondent to demonstrate that the Appellant posed a risk. The Tribunal took the approach that it was for the Appellant to disprove that matter. Further whilst the Tribunal was plainly entitled to have regard to the nature of the crime committed by the Appellant in the past, that was not itself dispositive of the question in the appeal, which is whether he continued to pose a risk of harm.
9. For reasons that remain unclear, nothing further happened in the appeal until the 20 February 2025 when the matter was listed as a CMR before Upper Tribunal Judge Smith and Deputy Upper Tribunal Judge Zucker, who issued directions and set the matter down for hearing before me.
10. At the resumed hearing on the 2 June 2025 I heard submissions from the parties and I reserved my decision, which I now give.

Findings
11. The decision to deport is taken pursuant to Regulation 27, the relevant parts of which read:
Decisions taken on grounds of public policy, public security and public health
27.—(1) In this regulation, a “relevant decision” means an EEA decision taken on the grounds of public policy, public security or public health.
(2) A relevant decision may not be taken to serve economic ends.
(3) …
(4) …
(5) The public policy and public security requirements of the United Kingdom include restricting rights otherwise conferred by these Regulations in order to protect the fundamental interests of society, and where a relevant decision is taken on grounds of public policy or public security it must also be taken in accordance with the following principles—
(a) the decision must comply with the principle of proportionality;
(b) the decision must be based exclusively on the personal conduct of the person concerned;
(c) the personal conduct of the person must represent a genuine, present and sufficiently serious threat affecting one of the fundamental interests of society, taking into account past conduct of the person and that the threat does not need to be imminent;
(d) matters isolated from the particulars of the case or which relate to considerations of general prevention do not justify the decision;
(e) a person’s previous criminal convictions do not in themselves justify the decision;
(f) the decision may be taken on preventative grounds, even in the absence of a previous criminal conviction, provided the grounds are specific to the person.
(6) Before taking a relevant decision on the grounds of public policy and public security in relation to a person (“P”) who is resident in the United Kingdom, the decision maker must take account of considerations such as the age, state of health, family and economic situation of P, P’s length of residence in the United Kingdom, P’s social and cultural integration into the United Kingdom and the extent of P’s links with P’s country of origin.
(7)….
(8) A court or tribunal considering whether the requirements of this regulation are met must (in particular) have regard to the considerations contained in Schedule 1 (considerations of public policy, public security and the fundamental interests of society etc.).
12. I confirm that I have read and understood the considerations listed in Schedule 1, and that I have in particular had regard to the ‘fundamental interests of society’ listed at paragraph 7 thereof:
7. For the purposes of these Regulations, the fundamental interests of society in the United Kingdom include—
(a) preventing unlawful immigration and abuse of the immigration laws, and maintaining the integrity and effectiveness of the immigration control system (including under these Regulations) and of the Common Travel Area;
(b) maintaining public order;
(c) preventing social harm;
(d) preventing the evasion of taxes and duties;
(e) protecting public services;
(f) excluding or removing an EEA national or family member of an EEA national with a conviction (including where the conduct of that person is likely to cause, or has in fact caused, public offence) and maintaining public confidence in the ability of the relevant authorities to take such action;
(g) tackling offences likely to cause harm to society where an immediate or direct victim may be difficult to identify but where there is wider societal harm (such as offences related to the misuse of drugs or crime with a cross-border dimension as mentioned in Article 83(1) of the Treaty on the Functioning of the European Union);
(h) combating the effects of persistent offending (particularly in relation to offences, which if taken in isolation, may otherwise be unlikely to meet the requirements of regulation 27);
(i) protecting the rights and freedoms of others, particularly from exploitation and trafficking;
(j) protecting the public;
(k) acting in the best interests of a child (including where doing so entails refusing a child admission to the United Kingdom, or otherwise taking an EEA decision against a child);
(l) countering terrorism and extremism and protecting shared values.
13. It is not in dispute that this remains the relevant legal framework.
14. The Appellant accepts that he does not attract any enhanced protection from deportation, and that the applicable tests are those to be found in Regulation 27 (5). The burden of proof in respect of those tests lies on the Secretary of State who must in particular show that the personal conduct of the Appellant represents a genuine, present and sufficiently serious threat affecting one of the fundamental interests of society, taking into account past conduct of the person and that the threat does not need to be imminent. That test must be read in conjunction with the other limbs of Regulation 27(5), in particular sub-paragraph (e): “a person’s previous criminal convictions do not in themselves justify the decision”.
15. In order to show these tests to be met the Secretary of State relies on the following matters.
16. First, Mr Wain points to the nature of the offence itself, that being a manifestation of the personal conduct of the Appellant. Although he and the victim had been threatening and provoking each other over a period of time, the sentencing remarks make clear that the Appellant likely travelled to the area where the victim was, with the intention of assaulting him; he was seen by eyewitnesses to institute the attack on the victim, which was brutal and sustained. One later commented that he was surprised that the victim had not lost an eye. An aggravating feature of the assault was the use of the umbrella as a weapon. I accept all of that and I reject Mr Toora’s suggestion that it was somehow inappropriate or prejudicial to refer to the umbrella as a weapon. I adopt and agree with the sentencing remarks to the effect that in this context, that is precisely what it was. I attach considerable weight to the nature of this attack, which left the victim with long term mental and physical consequences.
17. Next the Secretary of State relies on the Restraining Order. Imposed at sentencing, the order remains in place until the 27 July 2027. Although in 2021 the Appellant applied for the order to be revoked, this was refused by the same judge who had presided at trial, who noted inter alia that the victim had asked for the order to remain in place. The question for me is what is the significance of this order to the tests I need to apply, in particular whether the personal conduct of the Appellant represents a “genuine, present and sufficiently serious threat”.
18. The statutory power to make such an order lay (it has since been repealed) in s5 of the section 5(2) of the Protection from Harassment Act 1997:
(2) The order may, for the purpose of protecting the victim of the offence, or any other person mentioned in the order, from further conduct which—
(a) amounts to harassment, or
(b) will cause a fear of violence,
prohibit the defendant from doing anything described in the order.
19. Mr Wain referred me to the CPS guidance on how this statutory discretion is to be exercised. This indicates that the role of the CPS in these applications is to assist the court through giving the facts of the original case and the evidence basis on which the order was made. A statement is then obtained from the victim on their views on the application, as well as an up-to-date risk assessment and notification of any material change in circumstance since the making of the order. The guidance makes clear that the views of the victim are an important consideration for the court, and given what happened to him, I find it to be perfectly understandable that the Appellant’s victim wished the order to be imposed in the first place, and to continue today. The court has accepted that the order should be imposed to protect him from harassment or fear of violence, and that is a matter I attach some weight to.
20. Finally the Secretary of State asks me to look with care at the findings of the probation service set out in the probation report, prepared for the sentencing hearing on the 21st July 2017, and the ‘short form’ OASys report of the 7th September 2018. In particular she asks me to look past the ‘low risk of re-offending’ headline conclusions drawn herein. That is the result produced by the Offender Group Reconviction Scale (OGRS) assessment tool, which only takes into account ‘static’ risk factors such as age at first offence, nature and frequency of offending, and the number of custodial sentences. On this analysis, the Appellant, a one-time offender at the age of 42, with a stable family and work life, clearly scored low. The probation service goes on, however, to assess risk by reference to more ‘dynamic’ considerations, in particular the fact that the Appellant perpetrated physical violence with a weapon, resulting in physical and psychological harm. Here the authors of both reports find the Appellant to pose a medium risk of serious harm to known adults, in particular the victim. Again, this is a matter that I have attached some weight to.
21. That is the Secretary of State’s case. Against those matters, I am asked by the Appellant to consider the following.
22. First, that both the probation service and the trial judge considered this offending behaviour to be an aberration. In her sentencing remarks, the trial judge HHJ Duncan said this:
“you're 42 years of age. You've got no previous convictions, you've never been in this position before, and I don't think you are ever going to be in this position again. I accept that. This behaviour is entirely out of character. You are a hard working man. You have in all other respects been a model citizen”.
23. In its 2018 assessment the probation service calculated that the Appellant presented an 11% chance of committing a further offence within 2 years. As is accepted before me, some seven years later, he has not been convicted of any other crime. Although Mr Wain sought to highlight the allegation made before HHJ Duncan at the hearing in 2021 that the Appellant has since been in touch with the victim of the offence, I note that he strongly denies this, and that no conviction nor indeed investigation nor charge has arisen. No evidence of the alleged contact has been provided in this appeal. I am therefore unable to attach any weight to this bare allegation, and proceed on the basis that the index offence remains the only one for which the Appellant has ever been convicted. That is a matter that I am bound to attach significant weight to.
24. I have further considered the evidence of the Appellant himself. The basic features of his life in the UK were agreed between the parties. That is that he has lived in this country since March 2013, and that his wife, children and mother all have either settled, or pre-settled status. His children have grown up here and are now at either university or college. He is self employed as a painter and decorator and a number of glowing testimonials from satisfied customers were provided in his bundle. In his witness statement he explains how the victim of the offence was a childhood friend, whom he had grown up with in Albania, and later lived near to in Greece. Their families all know each other. A bitter dispute had arisen between them over some argument, and which resulted in the assault that the Appellant now describes as a “terrible mistake”. The Appellant avers, and I accept, that he deeply regrets his part in this violence, which he insists was a “one-off” that was “completely out of character”.
25. Drawing all of this together I find as follows. The offence was, on all the available evidence, quite plainly out of character and was indeed a “one-off”. That is not to diminish the harm that it caused to the victim, or to in any way disagree that the Appellant should have been sent to prison for a significant amount of time. He clearly should have been. The central question for me today is whether there is a “genuine, present and sufficiently serious threat” in the Appellant today being allowed to remain in the UK. There is no evidence at all that he is a risk to anyone other than the victim of the original assault, and in respect of that, the evidence amounts to this. There was a horrible assault on this man in 2017. Since then he has, perfectly understandably, wished to have the security of knowing that there is a restraining order preventing the Appellant from coming anywhere near him. It has now been over 8 years since that event, and the Appellant has been living back in the community for some 6 ½ years since his release from prison. In that time he has integrated well back into society, and has supported his family through his work as a decorator. I am satisfied that he understands only too well that any further offending, harassment or harm to his victim could see him facing deportation again, and the life he has built for himself and his family here destroyed. In all the circumstances I am satisfied that the Respondent has not been able to discharge the burden and show that there is a sufficiently serious threat to warrant deportation, or that deportation would be the proportionate course of action in this case.
26. The appeal is therefore allowed.

Decisions
27. The appeal is allowed with reference to the Immigration (EEA) Regulations 2016.
28. There is no anonymity order.

Upper Tribunal Judge Bruce
Immigration and Asylum Chamber
20th June 2025