Tribunal decisions

The decision

IN THE UPPER TRIBUNAL
IMMIGRATION AND ASYLUM CHAMBER
Case No: UI-2023-002900

First-tier Tribunal No: HU/04642/2021
EA/52422/2023

THE IMMIGRATION ACTS

Decision & Reasons Issued:
On 27 November 2025

Before

UPPER TRIBUNAL JUDGE LANE

Between

KUJTIM SHABANAJ
(NO ANONYMITY ORDER MADE)
Appellant
and

Secretary of State for the Home Department
Respondent

Representation:

For the Appellant: Mr Chakmakjian
For the Respondent: Mr Terrell, Senior Presenting Officer

Heard at Field House on 25 April 2025

DECISION AND REASONS

1. By a decision promulgated on 18 February 2025, I found that the First-tier Tribunal’s decision should be set aside and I directed a resumed hearing in the Upper Tribunal which took place on 25 April 2025 at Field House. My error of law decision annexed to this decision as Annex A.

2. The background is set out in the error of law decision and I shall not repeat it. The main issue which remained outstanding from the error of law stage was the applicability or otherwise of the Immigration (European Economic Area) Regulations 2016. The parties are now agreed that the Regulations do apply in the case of the appellant and that he is entitled to the lowest level of protection afforded (he may be removed on ‘serious grounds of public policy and public security’).

3. The Immigration (European Economic Area) Regulations 2016 Regulation 27(5) and (6) provide:

(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 finding 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

Section 117C of the 2002 Act provides:

(1) The deportation of foreign criminals is in the public interest.

(2) The more serious the offence committed by a foreign criminal, the greater is the public interest in deportation of the criminal.

(3) In the case of a foreign criminal (“C”) who has not been sentenced to a period of imprisonment of four years or more, the public interest requires C's deportation unless Exception 1 or Exception 2 applies.

(4) Exception 1 applies where—

(a) C has been lawfully resident in the United Kingdom for most of C's life,

(b) C is socially and culturally integrated in the United Kingdom, and

(c) there would be very significant obstacles to C's integration into the country to which C is proposed to be deported.

(5) Exception 2 applies where C has a genuine and subsisting relationship with a qualifying partner, or a genuine and subsisting parental relationship with a qualifying child, and the effect of C's deportation on the partner or child would be unduly harsh.

(6) In the case of a foreign criminal who has been sentenced to a period of imprisonment of at least four years, the public interest requires deportation unless there are very compelling circumstances, over and above those described in Exceptions 1 and 2.

(7) The considerations in subsections (1) to (6) are to be taken into account where a court or tribunal is considering a decision to deport a foreign criminal only to the extent that the reason for the decision was the offence or offences for which the criminal has been convicted.

4. I heard oral evidence at the resumed hearing from the appellant and his partner. The standard of proof in the appeal is the balance of probabilities. I have considered all the evidence both written and oral and the submissions of both representatives before remaking the decision.

5. Mr Terrell, for the Secretary of State, submitted that regulation 27 highlighted several elements of the appellant ‘s current circumstances. These include the threat which he poses in the community as a individual who had been involved in drug-related crime. The case advanced by the appellant relied heavily, he submitted, on factors which might mitigate the threat (tagging, presence of the appellant’s family members). That approach risked losing sight of a proper assessment of the level of risk itself. As the Warby LJ put it in AA (Poland) [2024] EWCA Civ 18 at [55]:

In my view, Restivo was rightly decided on this point and the reasoning applies to the present case. Measures such as imprisonment, licence conditions on release, SHPOs, and notification requirements are all put in place because a person poses a threat to one of the fundamental interests of society. The existence of such measures is relevant because they involve a recognition of that threat and the need to prevent, manage, or mitigate it. But the preventative or mitigating effects that such measures may have are not themselves material to the question of what level of threat exists. The FtTJ's "real world" approach in this case therefore involved the same error as was perpetrated by the FtT in Restivo. The seriousness of the threat that AA's personal conduct represents should have been assessed without regard to the mitigating measures on which the FtTJ placed weight.

The OASys report assessed the appellant’s risk at low but, as both parties acknowledged, the report had been compiled without the benefit of an interview with the appellant. Advancing his second point arising out of regulation 27, Mr Terrell submitted that the appellant had (as the judge’s sentencing remarks made clear) become involved in drug offending out of greed, not by reason of necessity; difficulties caused by the pandemic could not adequately explain his involvement. It was reasonable to suppose that such a motivation would application arise again the future whilst tagging and imprisonment could not be expected to exclude or manage the risk indefinitely. On any assessment of proportionality, deportation represented the only reliable means to exclude the threat posed by the appellant. As regards Article 8 ECHR and section 117C, the appellant could, without facing any undue harshness, return to Greece where there exists no obstacle to the continuation of his family life.

6. Mr Chakmakjian, for the appellant, submitted that there was no clear evidence that the appellant was a present threat to society. The pandemic had been an explanation but not an excuse for the appellant’s offending. AA (Poland) lacked relevance on the appellant’s current circumstances; the appellant was no longer on licence. The appellant acted as a emotional support for his family members who, whilst they had been living in the United Kingdom at the time of the index offence, were very much part of his life here now.

7. The appellant has lived in the United Kingdom for about 6 years, 33 months of which he has spent in prison. His partner has pre-settled status and his children are adults. The appellant lived for 23 years in Albania and 9 years in Greece. As the First-tier Tribunal judge found [53] the appellant appears to care for his grandchildren out of choice rather than for any imperative reason within the family set up in the United Kingdom. His family members had lived in Greece until only a few years ago. By any analysis, the appellant’s Article 8 ECHR case is very weak because he and his family can reasonably be expected to continue their lives together in Greece. Evidence of the appellant’s integration into United Kingdom society is negligible; indeed, he has spent a considerable portion of his time here in prison and his life revolves around his family and not the community in which he lives. None of his family members are qualifying individuals under Section 117C(5) and there are no (let alone very significant) discernible obstacles to his reintegration in Greek society. As regards the advocates respective submissions on the appellant’s limited protection under the 2016 Regulations, I prefer the submissions of Mr Terrell. I am not satisfied that protective measures whether they be formal ones imposed by the state or as represented by the presence of the appellant’s family members adequately address the appellant’s evident propensity to act in a criminal manner of out greed as he has done in the past. Viewing the evidence as a whole and giving appropriate weight to the factors favouring the appellant and opposing his remaining in the United Kingdom, I am satisfied that he does represent a genuine, present and sufficiently serious threat affecting one of the fundamental interests of society. I find that his appeal against the Secretary of State decision to deport him and to refuse his human rights claim is dismissed.

Notice of Decision

I have remade the decision. The appellant’s appeal against the decision of the Secretary of State is dismissed.

C. N. Lane

Judge of the Upper Tribunal
Immigration and Asylum Chamber

Dated: 14 May 2025

ANNEX A

IN THE UPPER TRIBUNAL
IMMIGRATION AND ASYLUM CHAMBER
Case No: UI-2023-002900

First-tier Tribunal No: HU0462422021

THE IMMIGRATION ACTS

Decision & Reasons Issued:

…………………………………

Before

UPPER TRIBUNAL JUDGE LANE

Between

Kujtim SHABANAJ
(NO ANONYMITY ORDER MADE)
Appellant
and

Secretary of State for the Home Department
Respondent

Representation:

For the Appellant: Mr Chakmakjian
For the Respondent: Ms McKensie, Senior Presenting Officer

Heard at Field House on 10 September 2024

DECISION AND REASONS

1. The appellant is a Greek national, born on 24 February 1978. He last entered the UK in 2018 and exercised Treaty Rights as an EEA national. Having lost his job in the COVID-19 pandemic, the applicant became involved in the production of cannabis, and was convicted and sentenced on 12 November 2020. The respondent gave notice of liability to deportation in December 2020, stating that his deportation would be considered under the EEA Regulations. The respondent eventually signed a deportation order, made under the Immigration Rules, on 27 September 2021. The appellant appealed to the First-tier Tribunal which, in a decision dated 4 June 2023, dismissed the appeal. The appellant now appeals to the Upper Tribunal.

2. The have been significant delays in this appeal, first in the First-tier Tribunal and subsequently in the Upper Tribunal following a direction that the transcript of the First-tier Tribunal hearings be available to the parties and to the Upper Tribunal at the initial hearing. That transcript was eventually made available.

3. There are three grounds of appeal. First, the appellant complains that the First-tier Tribunal failed to have regard to the EEA Regulations 2016. The appellant had made an out of time application under the EUSS Scheme which the respondent had accepted as valid. The appellant argues that the acceptance of his application as valid brought his application within the aegis of the EEA Regulations 2016 and consequently the judge was required to apply those regulations, including Regulation 27. That regulation had been addressed by the Secretary of State in the decision letter and the presenting officer at the First-tier Tribunal hearing argued that ‘ having allowed the Applicant to make his out of time application under the EUSS, it was the Respondent’s policy that, the application should be considered as if it had been made in time and applying the facts as they would have been if an in-time application had been made.’ (First-tier Tribunal decision at [17]).

4. The judge, however, took a different view from the appellant and the Secretary of State:

18. Unsurprisingly, the Appellant was content with the Respondent’s position, even if I was not. I had indeed expressed my reservations at the previous CMR over how the out of time EUSS application could be material to this human rights appeal. It had always seemed obvious to me, that the EUSS application was destined to fail because a deportation order had been made. I did not see how the Tribunal could pretend facts were not facts, namely that a deportation order was in place by the time the EUSS application was made. A willingness to consider the EUSS application out of time, did not; it seemed to me, entitle the Appellant to have his application considered as if certain events had not transpired since the deadline, which had, namely, his conviction, sentence and being made subject to a deportation order.

5. The judge proceeded to combine the appellant’s appeal against the EUSS decision (refusal on the grounds of suitability) and the human rights appeal arising from the deportation order. He addressed that joinder of the appeals at [21]:

To the extent the second appeal should be regarded as a new matter within the human rights appeal, the Respondent consented to this being considered. I actually consider that, the matters all being properly ventilated during this appeal hearing, both sides agreeing that I could and should consider the further appeal issues alongside the human rights appeal, that it is proper to issue a single decision to cover both appeals. This is notwithstanding the fact that the second (EUSS) appeal remains live on the online platform having not been ‘listed’. That second appeal can either be regarded as determined without a hearing on the basis it was impracticable to give notice pursuant to rule 25(1)(d) or because the parties impliedly consented to it being considered without a hearing (rule 25(1)(a). Alternatively, the hearing held was properly understood by all to cover both appeals and oral notice was given of the hearing which was reasonable (rule 26) because no party objected to the issues all being considered together as part of one appeal hearing.

6. The judge may well have proceeded on the basis that both parties wished his to deal with both appeals but [21] is unclear as to the exact course which the judge chose to follow. Each of the possible ways forward may or may not have been available but it was incumbent on the judge to state clearly which way he chose to follow. His failure to do so, in my opinion, renders the decision unsafe.

7. At the Upper Tribunal initial hearing, Ms McKensie, for the Secretary of State, sought to argue that the Secretary of State had agreed with the judge at the First-tier Tribunal hearing that Regulation 27 did not fall for consideration by the Tribunal and that, in any event, the Secretary of State’s decision letter had addressed the regulation so the judge was not required to do so. I reject those submissions. The transcript of the hearing is, in my opinion, tolerably clear as, indeed, is the judge’s decision in establishing that the Secretary of State agreed with the appellant before the First-tier Tribunal that Regulation 27 should be considered. Moreover, the fact that the Secretary of State’s decision letter dealt with the regulation cannot absolve the First-tier Tribunal of the task of doing so also. The failure or refusal to do so renders the First-tier Tribunal’s decision incomplete.

8. The matter is further complicated by what the judge then says at [31-33]:

31. Whilst the Appellant’s application was refused on grounds of suitability under rule EU15 there is in my view a tension in the Respondent’s position as set out in the refusal letter. It begins straightforwardly enough by saying that the refusal is on grounds of suitability under EU15 because the Appellant is subject to a deportation order made on 28 September 2021. Indeed, rule EU15 requires an application to be refused on the grounds that a person is subject to a deportation order. There is in my firm view, no discretion in this point. There is also no qualification which requires the Appellant to pose a genuine, present and sufficiently serious threat to fundamental freedoms, before that deportation order should be taken account of.

32. However, the Respondent’s decision on this application goes on to say that where the deportation order was made in respect of conduct committed before 31 December 2020, leave under the EUSS should only be refused where the making of the deportation order is justified on grounds of public policy, public security or public health in accordance with regulation 27 of the EEA
Regulations 2016.

33. I have not been taken to any provision in the rules which makes this qualification. It was submitted by the Respondent that this was their position as a matter of policy. I have not been taken to that policy and it has not been provided by either side. The Respondent’s reasoning has not been persuasive and I regard the Respondent’s position in this regard to be erroneous as a matter of law. If I am wrong in this regard, no doubt I will be put right in another Tribunal. Whilst both parties advocated that I should adopt that position, to do so would in my view be an error of law and therefore not be a permissible basis for my decision making.

9. The statement of the law put before the judge by both parties, but in particular the Secretary of State, was not helpful. It is clear that the presenting officer told the judge that the Secretary of State’s policy was to threat the appellant on the facts as if the EEA Regulations 2016 applied given that the conduct which had led to the deport order pre-dated 31 December 2020. As the judge notes, ‘I have not been taken to that policy and it has not been provided by either side.’ However, the judge does not then explain exactly why ‘the Respondent’s reasoning has not been persuasive and I regard the Respondent’s position in this regard to be erroneous as a matter of law.’ The loser in the appeal (the appellant) was entitled to understand clearly why he had lost. The judge’s reasoning, however, is unclear.

10. The manner in which the judge then decided to proceed brings us to Ground 3. The appellant had been content to proceed without having obtained the OASys report concerning the appellant. The grounds refer to a previous adjournment of the hearing prior to the First-tier Tribunal final hearing and state that the judge ‘failed to consider material evidence as regards the OASys report which was plainly material to the conclusion at para.37. That amounted to a procedural unfairness, given that there would have been a meritorious application to adjourn if it had been established earlier in the hearing that the only possible deportation regime was under the Rules rather than EUSS.’ The judge, possibly anticipating a challenge regarding his decision on the EUSS matter, states at [36] and [37] that, even had the appellant applied for an adjournment, the application would have been refused. However, the judge’s reasons for so concluding are problematic. He says that the ‘he position was about as good as it was going to get for the Appellant and this was no doubt what informed the decision to proceed rather than seek more time for the OASys.’ That statement appears to pre-judge any reasons which the appellant may have advanced for an adjournment and also overlooks the possibility that an adjournment may have allowed the parties time to clarify the position in law as regards the relevance, if any, of the EEA Regulations 2016.

11. In the circumstances, I find that the Tribunal has erred in law such that its decision falls to be set aside. I have not considered Ground 2 which was advanced in the alternative to Ground 1 and argues that the Secretary of State’s position on the applicability of the EEA Regulations 2016 should have been regarded as a very compelling circumstance in the judge’s Article 8 ECHR analysis. I find that Ground 1 is duly made out. None of the findings of fact of the First-tier Tribunal shall stand. The decision will be remade in the Upper Tribunal. The issues to be determined are as follows: (i) the parties shall seek to agree whether or not the EEA Regulations 2016 apply on the facts of the appeal. If they cannot agree, they shall each file and serve skeleton arguments no later than 10 days before the Upper Tribunal resumed hearing. The respondent shall file and serve a copy of any relevant policy concerning the issue; (ii) if he seeks to rely upon it, the appellant shall file and serve a copy of the OASys report prior to the resumed hearing. It is very unlikely that the Tribunal will grant any further adjournment for the report to be obtained; (iii) the parties shall seek to agree how the appellant’s EUSS appeal should properly be disposed of whether by consolidation of otherwise. If they cannot agree, they shall address the issue in their respective skeleton arguments.

Notice of Decision

The decision of the First-tier Tribunal is set aside None of the findings of fact shall stand. The appeal shall be remade in the Upper Tribunal (Upper Tribunal Judge Lane) following a resumed hearing at Field House, London on the first available date.

C. N. Lane

Judge of the Upper Tribunal
Immigration and Asylum Chamber

Dated: 22 January 2025