Tribunal decisions

The decision

IN THE UPPER TRIBUNAL
IMMIGRATION AND ASYLUM CHAMBER
Case No: UI-2023-003184

First-tier Tribunal No: EA/06744/2022

THE IMMIGRATION ACTS

Decision & Reasons Issued:

10th June 2025

Before

UPPER TRIBUNAL JUDGE HIRST
DEPUTY UPPER TRIBUNAL JUDGE STAMP

Between

SECRETARY OF STATE FOR THE HOME DEPARTMENT
Appellant
and

ZENEL BESHI
Respondent

Representation:
For the Appellant: Mr Ojo, Senior Home Office Presenting Officer
For the Respondent: Mr Halim, counsel instructed by CLP Solicitors

Heard at Field House on 2 May 2025

DECISION AND REASONS

1. The Secretary of State appeals from the decision of the First-tier Tribunal promulgated on 17 May 2023, allowing the Respondent’s appeal against the decision to make a deportation order.
2. The appeal came before the Upper Tribunal at an error of law hearing on 2 May 2025. Having heard submissions from the parties, we gave our decision that there was no error of law in the First-tier Tribunal’s decision, for the reasons which are set out in detail below.
3. The central issue in this appeal was whether the Respondent, at the time of the hearing before the First-tier Tribunal, posed a “genuine, present and sufficiently serious” threat to justify his deportation on grounds of public policy or public security under the Immigration (European Economic Area) Regulations 2016. In a detailed and well-structured decision the First-tier Tribunal concluded that the Secretary of State had not discharged the burden of proof on her and had not demonstrated that the applicable threshold was met. For the reasons given below, we consider that the First-tier Tribunal was entirely entitled to reach that conclusion. We therefore dismiss the Secretary of State’s appeal.
Background
4. The Respondent is a national of Albania. On 15 June 2017 he was sentenced by the Court of Appeal in Turin, Italy to a total of 6 years, 3 months and 21 days’ imprisonment in respect of multiple offences including robbery, false imprisonment and 44 counts of burglary and theft. He has no convictions in the UK.
5. The Respondent arrived in the UK in or around August 2020. On 25 September 2020 he applied for an EEA residence card as the spouse of an EEA national, which was refused on 23 December 2020 on the basis that he had not provided evidence of his spouse’s exercise of EU Treaty rights. The Respondent appealed the refusal.
6. Whilst his appeal was pending, on 4 May 2021 the Respondent submitted an application for leave to remain under the EU Settlement Scheme (‘EUSS’). The Appellant maintains that the Respondent did not in that application declare his convictions.
7. On 12 June 2021 the decision to refuse an EEA residence card was reconsidered and a residence card was issued on 21 June 2021. On 25 May 2022 the Secretary of State notified the Respondent that he was liable to deportation under Regulation 23(6)(b) of the Immigration (European Economic Area) Regulations 2016 (‘the EEA Regulations’) on the basis of his 2017 convictions. The Respondent made representations in response on 1 July 2022.
8. On 7 July 2022 the Secretary of State made a decision to deport the Respondent under the EEA Regulations and a decision to refuse the Respondent’s application for leave to remain under the EUSS.
9. The appeal came before the First-tier Tribunal on 25 April 2023. The Tribunal noted that the Secretary of State had not produced any evidence indicating that the Respondent had a propensity to reoffend. Nor had she adduced the EUSS application on which she relied as demonstrating that the Respondent did not accept responsibility for his previous offending and therefore continued to pose a risk.
10. The First-tier Tribunal considered the evidence of the Respondent’s convictions and custodial behaviour which had been adduced by the Respondent, together with an expert report by Dr Cordwell, a forensic clinical psychologist, which assessed the Respondent as posing a low risk of reoffending and a low risk of serious harm to others. The Tribunal concluded that the Respondent did not pose a present or sufficiently serious threat to a fundamental interest of society as required by Regulation 27(5), and allowed the appeal under the EEA Regulations.
11. The Secretary of State sought permission to appeal on four grounds:
i. The First-tier Tribunal had misdirected itself in relation to the burden of proof and the obligation to make findings of fact;
ii. The First-tier Tribunal had misdirected itself as to the applicable threshold test for protection from deportation under EU law;
iii. The First-tier Tribunal had misdirected itself as to the approach to rehabilitation and the lower level of protection from deportation;
iv. The First-tier Tribunal had erred by failing to give clear reasons for its conclusions and failing to show that all relevant matters had been taken into account.
12. Permission to appeal was granted on all grounds by the First-tier Tribunal on 19 June 2023.
13. On 25 September 2023 the Respondent filed a Rule 24 response.
14. The matter came before us at an error of law hearing on 2 May 2025. Having heard submissions from the parties, we gave our decision that there was no error of law in the decision of the First-tier Tribunal, with reasons to follow which are set out below.
Discussion and decision
Ground 1 (burden of proof)
15. The Appellant’s grounds of appeal asserted that the First-tier Tribunal had fundamentally misdirected itself as to the burden of proof, in particular by proceeding on the basis that it was for the Secretary of State to prove every evidential matter, and had failed to make findings on key issues in the appeal. In particular, the Tribunal had erred in failing to make any finding as to whether the Respondent had disclosed his convictions in his EUSS application; if the judge considered that there was insufficient evidence on which to make factual findings, then the appropriate course would have been to adjourn the hearing with directions for the production of further evidence.
16. In oral submissions, Mr Ojo on behalf of the Appellant followed the grounds of appeal and focused in particular on the issue of whether the Respondent had disclosed his convictions in his EUSS application. There had been sufficient evidence, including the Respondent’s written and oral evidence, on which the judge could have made a finding as to whether the Respondent had signed his application, and it was an error not to do so. The judge had misapplied MH v SSHD [2010] UKUT 168 (IAC) by concluding at paragraph 44 that because the Secretary of State had not adduced the EUSS application, she was no longer relying on it. That finding had influenced the judge’s subsequent findings as to the level of threat posed by the Respondent.
17. Mr Halim on behalf of the Respondent relied on the Rule 24 response. There was no error in the Tribunal’s approach: the Secretary of State had made an assertion that the Respondent had dishonestly concealed his convictions but had not been able to substantiate it. He noted that, as the First-tier Tribunal recorded at paragraphs 43-44 of the decision, both the Respondent’s representatives and the Home Office Presenting Officer had made efforts to obtain the EUSS application, with no result. There was no error in the judge concluding that as the document had not been produced, the Respondent no longer intended to rely on it.
Discussion
18. Proceedings in the First-tier Tribunal are adversarial and in general the rule that ‘he who asserts must prove’ applies. In cases where the Secretary of State alleges that the appellant has been dishonest, it is well established that the burden of proof lies on the Secretary of State to establish the dishonesty: Ullah v SSHD [2024] EWCA Civ 201, [2024] 1 WLR 4055 at §22. In this appeal, the Appellant’s case that the Respondent continued to pose a current risk of reoffending relied heavily (in the absence of further offending since 2017) on the allegation that the Respondent had dishonestly failed to disclose his convictions on his EUSS application.
19. We observe that the primary question for the judge under the EEA Regulations was whether the Respondent posed a genuine, present and sufficiently serious threat, as at the hearing, to justify his deportation on grounds of public policy or public security. The issue of dishonesty in the 2021 EUSS application was at best of limited relevance to the question which the judge had to determine.
20. In any event, it was for the Appellant to make good her case. As the First-tier Tribunal noted (§§43-44) the Appellant had not produced the EUSS application in evidence despite repeated requests to do so by the Respondent’s representatives and by the presenting officer. Indeed, the Appellant had not provided evidence of the Respondent’s convictions, the sentencing remarks or documents from his criminal appeal; those had been adduced by the Respondent himself. The Respondent’s oral evidence was that his previous solicitors had filled out the EUSS form on his behalf and they had not asked him to disclose his previous convictions. On the evidence before the First-tier Tribunal it appears to have been unclear whether in fact the convictions had been disclosed in the EUSS application or not.
21. The judge correctly directed herself by reference to Rule 24 of the Tribunal Procedure (Upper Tribunal) Rules 2008 and MH (Respondent’s bundle: documents not provided) Pakistan [2010] UKUT 168 (IAC). There was no error in her conclusion that the Appellant had not discharged the burden of proof in demonstrating that the Respondent had acted dishonestly in his 2021 application.
Ground 2 – error as to the applicable threshold
22. The Appellant’s grounds of appeal asserted that the First-tier Tribunal had, at paragraphs 36 and 58 of the determination, applied an incorrect threshold of protection against deportation by referring to the ‘serious grounds of public policy or public security’ threshold when it was common ground that the Appellant was entitled only to the lowest level of protection. Mr Ojo acknowledged that the judge had directed herself at paragraph 39 of the decision to the threshold and had made it clear that the lowest threshold applied, but submitted that her subsequent reference to ‘serious grounds’ made that it was unclear which threshold had been applied.
23. Mr Halim submitted that the First-tier Tribunal had directed itself correctly at paragraphs 39 and 40 as to the correct approach and that the references to ‘serious grounds’ were simply a slip. In any event, any error was not material given that the judge accepted on the evidence, including Dr Cordwell’s report, that the Respondent posed a low risk of reoffending and serious harm; the outcome of the appeal would have been the same.
Discussion
24. It is right that the First-tier Tribunal referred at paragraphs 36 and 58 of the decision to the ‘serious grounds’ threshold, when the Respondent was only entitled to the lowest tier of protection under the EEA Regulations (‘grounds of public policy or public security’). However, having directed herself as to the applicable framework, the judge clearly set out at the outset of her findings (§39) the correct threshold and gave reasons for her finding that the lowest threshold applied.
25. We consider that the references to the higher threshold of protection were a drafting error and that in substance the judge applied the correct threshold. We agree with the Respondent’s submission that in any event, given the judge’s finding as to the risk of reoffending and serious harm posed by the Respondent, which was a finding entirely open to her on the evidence, any error as to the threshold of protection was not material to the outcome of the appeal.
Ground 3 – misdirection of law as to the approach to rehabilitation
26. The grounds of appeal asserted that the First-tier Tribunal had erred at §49 of the decision by requiring the Secretary of State to prove a negative, i.e. that the Respondent was not rehabilitated, which was material to the Tribunal’s finding that the Respondent did not pose a sufficiently serious threat to justify his expulsion. Further, the grounds of appeal argued, in reliance on Bouchereau [1978] 1 QB 732, Straszewski v SSHD [2015] EWCA Civ 1245 and Ali v SSHD [2016] 1 WLR 4799, that the First-tier Tribunal had not given adequate consideration to “all relevant matters”, including the threat posed to public confidence in the deportation system posed by the failure to deport a serious offender even in the absence of a risk of reoffending. In oral submissions, Mr Ojo focused on the issue of rehabilitation and submitted that there was no evidence that the Respondent had addressed his offending.
27. Mr Halim relied on the Rule 24 response. At paragraph 49 of the decision the judge was responding to a submission made by the Secretary of State. The judge had found there was evidence of rehabilitation; she was not requiring the Secretary of State to prove a negative. The burden of proof lay on the Secretary of State, as both Straszewski and Arranz [2017] UKUT 00294 (IAC) confirmed. The judge had been entitled to find, on the evidence before her, that the Secretary of State had not discharged the burden on her of demonstrating that the Respondent’s deportation was justified.
28. We reject the Appellant’s argument on Ground 3 for several reasons. First, it does not appear to have been part of the Secretary of State’s case before the First-tier Tribunal that the Bouchereau exception applied so that the Respondent’s deportation was justified on the basis of his past conduct alone. The judge cannot be criticised for not considering arguments which were not put to her and which did not form part of the Secretary of State’s written case.
29. Second, whilst the Respondent’s previous offending was clearly both serious and prolific, the evidence before the First-tier Tribunal did not on any view indicate that it was of the “very extreme” type of offending causing “deep public revulsion” which would justify expulsion under the Bouchereau exception; nor was that reflected in the sentence imposed.
30. Third, as the First-tier Tribunal noted, there was evidence that the Respondent had engaged in some rehabilitative activity whilst in prison, and in the years since the Respondent’s imprisonment there had been no further offending. Those were both relevant factors which the First-tier Tribunal was entitled to take into account.
31. Fourth, the First-tier Tribunal had before it the report of Dr Cordwell, which was considered in detail at paragraphs 51-52 of the decision. Dr Cordwell noted that the Respondent appeared to in some respects minimise his culpability, but he nonetheless concluded that even taking that into account the Respondent posed a low risk of violence and a low risk of serious harm to others. The First-tier Tribunal was unarguably entitled to rely on that report in its assessment of risk.
32. The Appellant was not being required to prove a negative; it was for the Appellant to show that the Respondent’s conduct posed a genuine, present and sufficiently serious threat to justify his deportation. The First-tier Tribunal was unarguably entitled to reach the conclusion, on the evidence before it, that the Appellant had not discharged that burden.
Ground 4 – inadequacy of reasons
33. The Appellant asserted that the First-tier Tribunal had erred by failing to give clear reasons for its conclusions and failing to show that all relevant matters had been taken into account. The grounds of appeal focused in particular on Dr Cordwell’s report but also asserted a general failure “throughout the decision to grapple with all the legal and evidential issues”.
34. On any fair reading, the First-tier Tribunal’s decision was a detailed, clear and well-structured consideration of the issues and evidence which were before it. The judge expressly recorded that Dr Cordwell had noted inconsistencies in the Respondent’s account which appeared to indicate that he was minimising his culpability. However, as the judge recorded (§52), Dr Cordwell’s conclusion, in a balanced and detailed report which was fairly described as “comprehensive”, was that notwithstanding those issues, the Respondent was at low risk of violence and low risk of serious harm to others.
35. The central difficulty for the Appellant is that, as the First-tier Tribunal recorded, she had not provided evidence to support her case. The First-tier Tribunal gave detailed, balanced and structured consideration to the evidence which was before it, addressed and determined the relevant issues, and explained its conclusions in clear and well-structured reasoning. We consider that the Appellant’s criticisms of the First-tier Tribunal’s reasoning are not well-founded.
Notice of Decision
36. For the reasons set out above, we conclude that there was no error of law in the decision of the First-tier Tribunal and we decline to set the decision aside.
37. The Secretary of State’s appeal is dismissed.

L Hirst

Judge of the Upper Tribunal
Immigration and Asylum Chamber

2 June 2025