Tribunal decisions

The decision

IN THE UPPER TRIBUNAL
IMMIGRATION AND ASYLUM CHAMBER
Case No: UI-2023-003684
First-tier Tribunal No: EA/06100/2022

THE IMMIGRATION ACTS

Decision & Reasons Issued:
On 7 March 2025

Before

UPPER TRIBUNAL JUDGE LANE

Between

Secretary of State for the Home Department
Appellant
and

FRANTISEK BARUS
(NO ANONYMITY ORDER MADE)
Respondent

Representation:

For the Appellant: Mr Lawson, Senior Presenting Officer
For the Respondent: Mr Khan

Heard at Birmingham Civil Justice Centre on 12 November 2024

DECISION AND REASONS

1. I shall refer to the appellant as ‘the respondent’ and to the respondent as ‘the appellant’ as they respectively appeared before the First-tier Tribunal.

2. The appellant is a male citizen of Slovakia. He appealed to the First-tier Tribunal pursuant to the Immigration (Citizens’ Rights Appeals) (EU Exit) Regulations 2020 against the respondent decision dated 28th March 2022 to refuse his application for leave to remain in the United Kingdom. He also appealed pursuant to Regulation 36 of the Immigration (European Economic Area) Regulations 2016 against the respondent’s decision of 19th January 2022 and of 29th June 2022 to deport him from the United Kingdom on the grounds of policy on account of his convictions for criminal offences committed in Slovakia. The First-tier Tribunal, in a decision promulgated on 24 May 2025, allowed his appeal. The Secretary of State now appeals with permission to the Upper Tribunal.

3. Granting permission, Upper Tribunal Judge Perkins wrote:

The Secretary of State’s second ground of appeal is very weak and is probably characterised wrongly as “making contradictory findings”. The complaint is that the Judge believed the appellant and that is not normally an error of law. I doubt if I would have given permission on ground 2 on its own but it is linked to ground 1 which is, I find, clearly arguable. Ground 1 complains that the Judge, having acknowledged that it was the Secretary of State’s contention that the applicant omitted details of his convictions on his EUSS application, erred by not considering this when making findings about the Appellant being a genuine and present threat.

I give permission on each ground.

At the Upper Tribunal initial hearing, Mr Lawson, for the Secretary of State, did not pursue Ground 2.

4. As both advocates acknowledged, Ground 1 raises a very narrow point: Did the judge err in law by failing expressly to take into account in making his assessment under Regulation 27(5) of the EEA Regulations 2016 the claim that the appellant had failed to disclose his Slovakian criminal conviction in his EUSS application? The grounds assert that this failure is ‘entirely capable of undermining their findings that despite being sufficiently serious the threat is not genuine and present.’

5. I find that the First-tier Tribunal has not erred in law such that its decision falls to be set aside for the following reasons. First, I am satisfied that the judge was fully aware of all the facts when he reached his decision. Significantly, the appellant’s failure to disclose the convictions in his EUSS application was referred to it the respondent’s decision under appeal before the judge. The judge writes at [8]:

The respondent noted that the appellant had failed to disclose fully his foreign convictions when making his application for pre-settled status. She decided that the appellant had committed offences that placed the public at risk of serious harm and that the appellant had demonstrated a propensity to re- offend, given his failure to disclose his criminal history.

There is no question of the judge having overlooked the appellant’s non-disclosure whilst, having already referred to it at [8], it was not an error of law for the judge not to refer to it again later in his decision.

6. Secondly, it is unclear why the appellant’s failure to disclose necessarily indicated a propensity to reoffend as the Secretary of State’s decision letter states (‘… had demonstrated a propensity to re-offend, given his failure to disclose his criminal history…’). Failure to disclose can be a criminal offence but the Secretary of State does not appear to have made submissions on this particular matter at the First-tier Tribunal hearing. There is no suggestion that the appellant had been charged with and convicted for non-disclosure.

7. Thirdly, the judge found [59] that ‘the respondent has demonstrated on the balance of probabilities that the appellant’s conduct was capable of presenting a sufficiently serious threat to the fundamental interests of the United Kingdom.’ One may assume that the judge took into account the failure to disclose in reaching that finding. As I have said, having identified the matter at [8], there was not need for the judge to state expressly that he had taken it into account in reaching his finding at [59].

8. Likewise, when he then proceeded to find at [61] that the threat posed by the appellant was
not ‘present or genuine’ there is no reason to believe that the judge did not take into account all relevant matters, including the non-disclosure. The non-disclosure was, in any event, not such a serious or compelling factor in the judge’s analysis that it demanded the dismissal of the appeal. The judge manifestly reached a decision which was available to him on the evidence, including the non-disclosure. It is asserted in the grounds that the non-disclosure was ‘entirely capable of undermining their findings’. That may be so, but it is clear the judge had regard to it and concluded that it did not undermine his findings.

9. Mr Khan, for the appellant, submitted that the EUSS application form had not been before the judge and that the form asked applicants to disclose offences committed within the period of 12 months prior to application (the applicant had been released on licence in Slovakia in March 2019 and had not subsequently committed any criminal offence). Those submissions may reinforce the appellant’s case but, in the light of what I have said above, they are not necessary for me to conclude that the judge did not err in law and that the Secretary of State’s appeal should be dismissed.

Notice of Decision

The Secretary of State’s appeal is dismissed.

C. N. Lane

Judge of the Upper Tribunal
Immigration and Asylum Chamber

Dated: 2 February 2025