Tribunal decisions

The decision

IN THE UPPER TRIBUNAL
IMMIGRATION AND ASYLUM
CHAMBER
Case No: UI-2022-000641

First-tier Tribunal No: DA/00046/2020

THE IMMIGRATION ACTS

Decision & Reasons Issued:
On 6 January 2026

Before

UPPER TRIBUNAL JUDGE MANDALIA

Between

Secretary of State for the Home Department
Appellant
and

Robert Genya
(ANONYMITY DIRECTION NOT MADE)
Respondent

Representation
For the Appellant: Ms S Simbhi, Senior Home Office Presenting Officer
For the Respondent: Mr Robert Genya, in person; unrepresented

Heard at Birmingham Civil Justice Centre on 18 November 2025
Decision and Reasons
Introduction
1. Although the appellant in the appeal before the Upper Tribunal is the Secretary of State for the Home Department, for ease of reference I continue to refer to the parties as they were before the First-tier Tribunal. Hereafter I refer to Mr Genya as the appellant and the Secretary of State as the respondent.
2. The appellant is a national of Slovakia. On 9 August 2019 he was convicted of common assault and on 20 August 2019 the appellant was convicted at Wolverhampton Crown Court of burglary of a dwelling (with intent to steal). He was sentenced to a total term of 13 months imprisonment. The appellant has other convictions too, relating to offences committed in Slovakia previously, and in the United Kingdom since September 2016.
3. On 28 August 2019 the respondent wrote to the appellant notifying him that she intended to make a deportation order against him on grounds of public policy in accordance with regulation 23(6)(b) and regulation 27 of the Immigration (European Economic Area) Regulations 2016 (“the EEA Regulations 2016”). After considering representations made by the appellant, on 11 October 2019 the respondent made a decision (served on 12 December 2019) to make a Deportation Order.
4. The respondent considered the evidence available regarding the appellant’s length of residence in the UK but did not accept that the appellant had been resident in the UK in accordance with the EEA Regulations 2016 for a continuous period of five years. The respondent therefore did not accept the appellant has acquired permanent residence. The respondent considered whether the appellant’s deportation is justified on grounds of public policy. The respondent considered the details of the offence committed by the appellant (burglary) on 12 January 2019 and the judge’s sentencing remarks. The respondent concluded that the appellant represents a genuine, present and sufficiently serious threat to the public to justify the appellant’s deportation on grounds of public policy. The respondent went on to say that given the nature of the offence(s) committed and the threat that the appellant poses to society even if he had permanent residence as a result of five years continuous residence in the United Kingdom, the requirement for serious grounds of public policy would be satisfied. Having considered the representations made by the appellant the respondent concluded that the decision to deport the appellant is proportionate and in accordance with the principles of Regulations 27(5) and (6) of the EEA Regulations 2016.
5. The appellant’s appeal against that decision was allowed by First-tier Tribunal (“FtT”) Judge Dixon (“the judge”) for reasons set out in a decision promulgated on 11 January 2022 (“the decision”). In summary, the judge found the appellant to be a credible witness and despite the paucity of evidence to support the claims made, found that the appellant has established that he has been resident in the UK in accordance with the EEA Regulations 2016 for a continuous period of five years and has acquired a permanent right to reside. The judge went further at paragraph [44] of his decision and said that on the basis of the credible oral evidence of the appellant and the HMRC records available, the appellant was working from 2006 up until he was imprisoned in 2019 and that the work was “genuine and effective”. The judge concluded the appellant has therefore acquired 10-years residence in accordance with the EEA Regulations 2016.
6. The judge went on to consider whether the respondent has established that the appellant poses a genuine, present and sufficiently serious threat to one (or more) of the fundamental interests of society. He concluded, at [54], that the appellant does not present a sufficiently serious threat even when judged against the basic level of protection and that in any event, it would not be proportionate for him to be removed from the UK.
The Appeal to the Upper Tribunal
7. The respondent claims the decision of the judge is vitiated by material errors of law. Two grounds of appeal are relied upon. First, the judge erred in his assessment of the appellant’s length of residence in the UK exercising treaty rights. The respondent claims the assessment of an acquisition of 10-years residence must be calculated by counting back from the date of the decision to deport, and in any event, the judge failed to consider whether the period of imprisonment interrupted the continuity of residence. Second, the respondent claims the judge placed significant weight on the evidence of the appellant, including attributing positive weight to working in breach of bail conditions. The respondent claims the judge failed to properly assess or give adequate reasons for finding that the appellant did not pose a genuine, present and serious threat against evidence of his criminal history, use of violence and motivation to offend. The respondent claims the conclusions in this regard are irrational and against the weight of evidence.
8. Permission to appeal was granted on both grounds by Upper Tribunal Judge Jackson on 11 July 2024. She said:
“The grounds are both arguable, particularly in light of the very limited documentary or other evidence to support the Appellant’s oral evidence which has arguably been given extensive weight on its own, with findings arguably against the weight of evidence as a whole (including lack of evidence) in relation to duration of residence and relationship with children in the United Kingdom; as well as an arguable failure to consider all relevant matters to the risk of reoffending. It is further arguable that there was a failure to adopt the right approach to calculation of a period of 10 years residence.”
Application for an Adjournment
9. The appellant appeared before me in person and was unrepresented. Although no prior request had been made, arrangements were made for the appellant to be assisted at the hearing listed before me by an interpreter, who translated the Slovak and English languages. The interpreter joined the hearing remotely and I was satisfied that the interpreter and appellant could communicate and understand each other without difficulty.
10. The appellant applied for an adjournment. He said that he had received the Notice of Hearing and that when he spoke to his representatives, they claimed that they were not aware of the hearing. He provided his representatives with the Notice of Hearing. The appellant said that he had previously been assured by his representatives that they would be doing whatever was necessary to progress the appeal, albeit his only communication with them has been through exchange of email.
11. The application for an adjournment was opposed by Ms Simbhi. She informed me that she had called the appellant’s representatives on 17 November 2025 and they claimed to be unaware of the hearing listed. She did so because of the order I made on 18 July 2025 directing that the hearing listed on that day, be adjourned to the first available date after 25 August 2025 to enable the appellant to be represented by Kingsville Law Solicitors. The appellant’s solicitors indicated that they were not aware of whether the appellant is detained or not, indicating that there have been no steps taken to prepare for, and make progress with the appeal. Ms Simbhi had informed the appellant’s representatives that any application to adjourn the hearing of the appeal would be opposed.
12. I refused the application for an adjournment. The underlying decision of the respondent is dated 11 October 2019, some six years ago. As the FtT judge noted in paragraph [12] of his decision, there had already been a considerable delay in the progress of the appeal before the FtT, initially due to the Covid-19 pandemic and then because of delays in securing information from the respondent about the appellant’s employment history. As I have said, permission to appeal to the Upper Tribunal was granted on 11 July 2024.
13. The appeal was listed for hearing on 27 September 2024, but the appellant did not attend that hearing. Giving the appellant the benefit of the doubt, Upper Tribunal Judge Keith adjourned the hearing and listed the appeal for a case management hearing (“CMR”) to confirm the appellant is aware of the appeal and his readiness to proceed. The CMR was listed to be heard, remotely, on 2 January 2025. By letter dated 31 December 2024, ‘Bail for Immigration Detainees’ (“BID”) requested an adjournment of the CMR. The appellant was detained at the time. The CMR was adjourned by Upper Tribunal Judge Keith and relisted on 3 February 2025. On 27 January 2025, BID again applied for an adjournment of the CMR stating that they had applied for exceptional case funding legal aid for Mr Genya and that if it is granted, they will take steps to refer his case to a legal aid lawyer. The CMR was again adjourned by Upper Tribunal Keith and was listed for 30 April 2024. That CMR too was not effective as neither the appellant nor BID attended the hearing. BID had requested a further period of time before the error of law hearing is listed, while a legal representative is sought. Upper Tribunal Judge Keith directed that the error of law hearing be listed in person in Birmingham, with a Slovakian interpreter, on the first available date after 2 July 2025. He made it clear that the appellant should be aware that the Tribunal hearing may proceed in his absence if he does not attend. The appellant was provided with a copy of the composite bundle prepared by the respondent, by the Tribunal on 8 July 2025.
14. The error of law hearing was listed before me on 18 July 2025. On 15 July 2025, the Upper Tribunal received correspondence from Kingsville Law Solicitors confirming they now represent the appellant. They said that the matter is complex and they invited the Upper Tribunal to adjourn the hearing listed on 18 July 2025 for a period of 6 weeks to enable them to take further instructions from the appellant, prepare for the hearing of the appeal, and to instruct counsel. I granted that adjournment and directed that the appeal is to be listed for hearing on the first available date after 25 August 2025. In my reasons, I said:
“3. Kingsville Law Solicitors have now confirmed they represent the appellant, but they have had insufficient time to prepare for the hearing of the appeal. Although I am concerned about the delay that an adjournment will cause I am satisfied that it is in the interests of justice for the appellant to be represented at the hearing of the appeal.
4. I remind the representatives that the overriding objective of The Tribunal Procedure (Upper Tribunal) Rules 2008 is to enable The Upper Tribunal to deal with cases fairly and justly. Rule 2(4) imposes on obligation on the parties to; (a) help the Upper Tribunal to further the overriding objective; and (b) co-operate with the Upper Tribunal generally.
5. I make it clear that it is unlikely that any further adjournment will be granted. In the event that there are any on-going difficulties in taking instructions from Mr Genya or with representation, it is likely that the error of law hearing will proceed with Mr Genya having to represent himself. A copy of the hearing bundle has previously been provided by the Upper Tribunal to Mr Genya. Mr Genya should be aware that the Tribunal hearing may proceed in his absence, if he or his representatives do not attend the adjourned hearing.”
15. It is clear that despite the observations that I made, there has been no attempt whatsoever by the appellant and his representatives to make any progress with the preparation for the appeal. The appellant’s only communication with his representatives has been by email and there appears to have been no attempt by the appellant’s representatives to seek instructions from the appellant or to engage with the respondent or Tribunal. Kingsville Law Solicitors have been made aware of the hearing by the appellant and the respondent, and there is no explanation for their failure to attend the hearing. There have already been considerable delays and in my judgement it cannot be in the interests of justice or in accordance with the overriding objective for there to be further delay.
The Hearing of the Appeal
16. Mrs Simbhi adopted the grounds of appeal. She submits the judge relied heavily upon the appellant’s oral evidence regarding his presence in the UK. At paragraphs [45] and [46] of the decision the judge referred to the appellant’s employment and acknowledged that the records only show “meaningful work in terms of reasonably substantial income” for the periods 2013/14, 2014/15, 2015/16, 2016/17 and 2018/19. The judge accepted that in the period 2017/18 the appellant only received an income of £1025, but nevertheless accepted the appellant was performing genuine and effective work when considered alongside the evidence that his wife was drawing on benefits that also provided for the needs of the family. The judge accepted the appellant’s evidence of his ‘cash-in-hand’ work since arriving in the UK in 2006 and that the appellant continued to receive a ‘cash-in-hand’ income even after he had obtained legitimate employment in order to supplement his earnings. Ms Simbhi submits it is unclear why the judge considered the appellant to be a credible witness and that it is incumbent on a judge to carry out a thorough assessment to determine whether the appellant had been resident in the UK in accordance with the EEA Regulations 2016, particular when concluding that the appellant has acquired 10 years residence in accordance with the EEA Regulations 2016 giving rise to the highest level of protection.
17. In reply, Mr Genya maintained that he has been employed throughout the period he has been in the UK, and there was evidence in the form of HMRC records and his own oral evidence about the work he undertook. He submits that for the last seven years or so he has been unable to work because of the sentence of imprisonment and monitoring following his release. He submits he has now lived in the United Kingdom for about 23 years and it is only during the last seven years that he has been unable to earn money and secure employment.
Decision
18. It is useful to begin with the EEA Regulations 2016. Regulation 23(6)(b) provides that an EEA national who has entered the United Kingdom may be removed if the respondent has decided that the person’s removal is justified on grounds of public policy, public security or public health in accordance with Regulation 27. Regulation 27 insofar as it is material to this appeal provides:
“27.—(1) In this regulation, a “relevant decision” means an EEA decision taken on the grounds of public policy, public security or public health.
…
(3) A relevant decision may not be taken in respect of a person with a right of permanent residence under regulation 15 except on serious grounds of public policy and public security.
(4) A relevant decision may not be taken except on imperative grounds of public security in respect of an EEA national who-
(a) has resided in the United Kingdom for a continuous period of at least 10 years prior to the relevant decision; or
…
(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.
…
(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.).”
19. To justify interfering with the appellant’s rights to free movement and residence in the UK, the respondent must establish the appellant’s removal is justified on grounds of public policy and public security. Regulation 27(4) of the EEA Regulations 2016 provided that a deportation decision cannot be taken except on imperative grounds of public security in respect of an EEA national who has a right of permanent residence under Regulation 15, and who has resided in the UK for a continuous period of at least 10 years prior to the relevant decision.
20. In B v Land Baden-Wurttemberg Case C-316/16 (Joined Cases C-316/16, C-424/16), the Court of Justice held that a prerequisite for the enhanced protection, is that the person has acquired a permanent right of residence. The evidence before the Tribunal to support the claims being made by the appellant regarding his presence in the UK and of his employment was limited. There was evidence of the appellant’s earning set out in the HMRC records that the judge set out at paragraph [13] of the decision. There was no evidence (other than the oral evidence of the appellant) of employment between 2006 and 2009. There was evidence of very limited income during the period 2009/10 and no record of any employment for the periods 2010/11 and 2011/12. There was then evidence of very limited income during the period 2012/13. At paragraph [44] of his decision, the judge acknowledged that the employment records only show meaningful work for the periods 2013/14, 2014/15, 2015/16, 2016/17 and 2018/19. That is a period of five years. However, in order to acquire a permanent right of residence the appellant was required to establish that he had resided in the United Kingdom in accordance with the Regulations for a continuous period of five years (Regulation 15(1)(a) (my emphasis). That is, he was a ‘job-seeker’, ‘worker’ or ‘self employed person’, as defined in the Regulations. As far as the period 2017/18 (the gap) is concerned, the judge said:
“44. … The year 2017 to 2018 reveals only £1025.58. That is only just under £20 per week on average based only on those earnings. I accept though that even for that year the appellant was performing genuine and effective work when seen in the context of the evidence that his wife (with whom he was living at that time) was drawing on benefits which also provided for the needs of the family. There was more than just the £20 or so per week. On the basis of the employment records, the appellant is thus able to show 5 years such that permanent residence is established.”
21. I accept it is difficult to see how the judge could rationally conclude that the appellant was performing genuine and effective work during the period 2017/18 if his earned income was only £20 or so per week. The judge does not refer to the reasons given by the appellant for the limited earnings during that year. For example, the judge does not consider whether the appellant was during that period, seeking employment and whether he had a genuine chance of being engaged such that he would continue to be a ‘qualified person’ during that period as defined in the EEA Regulations 2016. To the extent that the judge may have been influenced by his having accepted the appellant to have given credible evidence of ‘cash-in-hand’ income, that could not assist the appellant. In order to acquire a permanent right of residence the appellant was required to establish that he had resided in the United Kingdom in accordance with the Regulations for a continuous period of five years (Regulation 15(1)(a). During the period that the appellant was working ‘cash-in-hand’ he was not a qualified person as defined in Regulation 6(1) and 6(2). That is, he was not a ‘job-seeker’ or ‘worker’ or someone who was to continue to be treated as a worker, as defined in the Regulations.
22. Having found, erroneously, that the appellant has acquired a permanent right of residence, the judge went on to find, for the reasons set out at paragraphs [45] and [46] of the decision, that the appellant has acquired 10 years residence in accordance with the EEA Regulations 2016. The judge’s conclusion that the appellant has acquired 10-years residence, at paragraph [47] of the decision, and at paragraph [44] that the appellant benefits from the “imperative grounds level of protection” is infected by the error since it is a prerequisite for the enhanced protection, that the person has acquired a permanent right of residence.
23. I do not therefore need to address the respondent’s grounds concerning the erroneous assessment of the evidence regarding the acquisition of 10 years residence in any detail. I simply observe however that at paragraph [47] of the decision, the judge said:
“I conclude, based on the credible oral evidence as well as the records from HMRC, that the appellant was working from 2006 up until being imprisoned in 2019 and that the work was genuine and effective (his clear evidence being that he only ever had break of up to 2 weeks from work to rest) and thus, also on this basis, acquired 10-years residence in accordance with the EEA Regulations 2016.” (my emphasis)
The judge was plainly satisfied that the appellant had resided in the UK for a continuous period of at least 10 years prior to the respondent’s decision and the sentence of imprisonment.
24. I accept however that there is an error of law in the decision of the FtT. The question is whether that error is material to the outcome. Here, at paragraph [34] of the decision, having set out the relevant legal framework, the judge said:
“At the heart of the assessment here is whether the appellant poses a sufficiently serious and genuine present threat. Here I need to consider the risk of reoffending and also the degree of harm that would be occasioned by further offences: there is an interrelationship between the two such that even a lower risk of re-offending may meet the test where the harm arising would be relatively serious. This must be assessed by reference to the lowest level of protection. (my emphasis)”
25. At paragraphs [50] and [54] of the decision, the judge said:
“50. I find, further, that even if, as respondent maintains, the appellant only enjoys the basic level of protection, he does not pose a sufficiently serious present and genuine threat….” (my emphasis)
…
54. In light of the above I find that the appellant’s avowed resolve to avoid offending is supported by his actions and that he does not present a sufficiently serious present threat even when judged against the basic level of protection. (my emphasis)”
26. It is clear therefore that although the judge referred to the appellant benefiting from the ‘imperative grounds level of protection’, in his final analysis the judge in fact considered whether the appellant represents a genuine, present and sufficiently serious threat by reference to the basic level of protection, as contended for by the respondent.
27. The respondent claims that the judge appears to have given significant weight to the evidence of the appellant, to the extent that the judge has misconstrued relevant facts and has sought to diminish the weight to the respondent’s public policy in protecting the fundamental interest of society as expressed in the EEA Regulations.
28. A finding as to whether the conduct of the appellant represents a genuine, present and sufficiently serious threat is a prerequisite for the adoption of an expulsion measure and it is only upon such a threat being established, that the issue of proportionality arises. The judge set out his reasons for reaching his conclusion that the appellant does not pose a genuine, present and sufficiently serious threat at paragraphs [48] to [53] of the decision.
29. I have reminded myself of what was said in MD (Turkey) v SSHD [2017] EWCA Civ 1958 that adequacy of reasons means no more nor less than that. It is not a counsel of perfection. Still less should it provide an opportunity to undertake a qualitative assessment of the reasons to see if they are wanting, even surprising, on their merits. The purpose of the duty to give reasons, is in part, to enable the parties to know why the appeal was won or lost, and to enable an appellate court or Tribunal to see what the reasons for the decision are, so that they can be examined in case there has been an error of approach. I have also had in mind throughout of the need to exercise judicial restraint before interfering with a decision of the FtT. It is now well established that the Upper Tribunal is not entitled to find an error of law simply because it does not agree with the decision, or because the Tribunal thinks the decision could be more clearly expressed or another judge can produce a better one. Baroness Hale put it in this way in AH (Sudan) v SSHD [2007] UKHL 49 [2008] 1 AC 678), at [30]:
"Appellate courts should not rush to find such misdirection simply because they might have reached a different conclusion on the facts or expressed themselves differently."
30. A fact-sensitive analysis was required. The judge, in the end, carried out his assessment by reference to the basic level of protection available to the appellant, as contended for by the respondent. The findings and conclusions reached by the judge were neither irrational nor unreasonable in the Wednesbury sense, or findings and conclusions that were wholly unsupported by the evidence. Here, it cannot be said that the Judge's analysis of the evidence is irrational or perverse. True it is that the judge placed significant weight upon uncorroborated evidence given by the appellant, but the Judge did not consider irrelevant factors, and the weight that he attached to the evidence of the appellant, who he found to be entirely credible, either individually or cumulatively, was a matter for him. The conclusions reached by the judge was based on the particular facts and circumstances of this appeal. Where a judge applies the correct test, and that results in an arguably generous conclusion, it does not mean that it was erroneous in law.
31. Having carefully considered the decision of the judge, I find that the error of law that I have found is not material to the outcome of the appeal.
32. It follows that I dismiss the appeal.
Notice of Decision
33. The appeal to the Upper Tribunal is dismissed.
34. The decision of First-tier Tribunal Judge Dixon issued on 14 January 2022 stands.

V. Mandalia
Upper Tribunal Judge Mandalia

Judge of the Upper Tribunal
Immigration and Asylum Chamber

23 December 2025