Tribunal decisions

The decision

IN THE UPPER TRIBUNAL
IMMIGRATION AND ASYLUM CHAMBER
Case No: UI-2023-003663
& UI-2023-003664

First-tier Tribunal No: HU/01504/2022
EA/09644/2022

THE IMMIGRATION ACTS

Decision & Reasons Issued:
On 8th April 2025

Before

UPPER TRIBUNAL JUDGE PERKINS
DEPUTY UPPER TRIBUNAL JUDGE MONSON

Between

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Appellant
and

MATEUSZ ZIELINKSKI
(NO ANONYMITY ORDER MADE)
Respondent

Representation:
For the Appellant: No appearance
For the Respondent: Mr N Wain, Senior Home Office Presenting Officer

Heard at Field House on 21 November 2023

DECISION AND REASONS
(extempore)
1. This is an appeal by the Secretary of State against a decision of the First-tier Tribunal allowing the appeal of the respondent, hereinafter “the claimant”, against a decision of the Secretary of State refusing him leave to remain on human rights grounds and refusing him leave under the EUSS Scheme.
2. The claimant did not appear before us. He has a history of not appearing; he did not appear before the First-tier Tribunal; he has not been responding to bail, and Mr Wain says that he checked yesterday and the claimant should have reported in accordance with bail conditions but he did not. The evidence shows that proper notice of the hearing was sent on 31 October. There was no reason to think that that was not received or that for any other reason the Notice of Hearing was not served properly. It follows that as far as we can tell this is somebody who is not co-operating with the Tribunal. We also note that he did not respond to directions from Upper Tribunal Judge Gill requiring him to indicate whether an interpreter was required. We see no point in putting this matter off as this is somebody who we do not think is going to attend.
3. We are clearly of the view that the First-tier Tribunal Judge was wrong in the approach that the judge took to the decision. The judge’s decision, without making any formal findings on it, may have made sense if the judge’s premise was right. The judge’s premise was that this was a case under the 2016 Regulations because the claimant had been exercising treaty rights in the United Kingdom. The Secretary of State says that is just wrong; that premise has never been established.
4. We find the Secretary of State is right about this. EEA nationals who have been in the United Kingdom for some time might in many circumstances be assumed to be exercising treaty rights, that is something that is inherent in the fact that they are present in the United Kingdom managing to live. It does not need a great deal of evidence to establish that they are exercising treaty rights but the Secretary of State in the refusal letters never indicated that it was accepted that the claimant was exercising treaty rights. The claimant is somebody who has a history of unreliability connected with drug abuse and criminality. It is not safe to just assume that the claimant was exercising treaty rights. The most recent evidence of any kind of work was in an interview in 2021 before being admitted into immigration custody. There was an assertion then that the claimant was working; the details were not given and it just does not follow that the claimant was actually working or otherwise exercising treaty rights at the times that are material to his application. It is just not a safe assumption. The First-tier Tribunal Judge made that assumption and, with respect, should not have done. The point was not conceded by the Secretary of State. It had to be proved and there is no evidence that we can see that was capable of supporting that conclusion. There is a history of some work but that is not enough on its own to prove that the claimant was exercising treaty rights.
5. It follows therefore that the entire premise of the First-tier Tribunal Judge’s reasoning falls apart. The claimant is not somebody who is entitled to protection under the 2016 Regulations.
6. We also agree with Mr Wain that the claimant is somebody who cannot succeed under the EUSS Regulations because the claimant is subject to a deportation order and is just not suitable for being permitted to remain under the Settlement Scheme.
7. What we have here is an appeal by a foreign criminal on human rights grounds which we know is regulated to a considerable extent by Part 5A of the Nationality, Immigration and Asylum Act 2002. It is in the public interest that he be removed although that public interest is subject to human rights qualifications. This is not a case of somebody who relies on a life partner or any close relationship including any close relationship with a child. There is really no strong pull factor. It is also plain that on his own case he may have people willing to help him in Poland, indeed he told the Crown Court Judge who last sentenced him that he was planning to return to Poland and the judge approved of that. It may be that is actually what has happened which would explain why he has not been attending before the court but we do not know that and do not making a finding to that effect. What we have here is somebody who is a foreign criminal who is subject to deportation who can point to nothing which would be a strong reason to outweigh the public interest in his being deported. We find that the judge in the First-tier Tribunal, with respect, was completely wrong in his approach by classifying this as somebody entitled to protection as an EEA national. It was the wrong approach. It relied on the wrong Rules. These errors are characterised properly in the grounds as procedural irregularities because the judge went on without really allowing the First-tier Presenting Officer to engage with the case because the judge had made findings, or made findings that were not supported and would have been challenged if an opportunity had come. We have no hesitation in saying on this occasion the judge erred and we set aside the First-tier Tribunal Judge’s decision.
8. We go on to re-make the case. It is regrettable that the claimant is not here to present his case but he had the opportunity, it is not our fault that he has not taken advantage of it, and we find nothing which would support a decision to allow his appeal. As we have already indicated he is a foreign criminal, he has no strong links in the United Kingdom, we have reason to think he has strong links in his country of nationality. There is nothing on which we could responsibly conclude that the decision is in any way disproportionate. Plainly it interferes with his primary Article 8 rights but that is permitted in these circumstances.
9. For all these reasons we find the Secretary of State’s case is made out. We set aside the First-tier Tribunal Judge’s decision which was made in error, and we substitute a decision dismissing the claimant’s appeal against the Secretary of State’s decision.
Notice of Decision
10. The First-tier Tribunal erred in law. We set aside its decision and we substitute a decision DISMISSING the claimant’s appeal against the Secretary of State’s decision.

Jonathan Perkins

Judge of the Upper Tribunal
Immigration and Asylum Chamber

3 April 2025