Tribunal decisions

The decision

IN THE UPPER TRIBUNAL
IMMIGRATION AND ASYLUM CHAMBER
Case No: UI-2023-004798

First-tier Tribunal No: LE/00846/2023
EA/51600/2022

THE IMMIGRATION ACTS

Decision & Reasons Issued:

On 21st of May 2025

Before

UPPER TRIBUNAL JUDGE RIMINGTON
DEPUTY UPPER TRIBUNAL JUDGE DAVIES

Between

DANIEL OPOKU KOOPMANN
(NO ANONYMITY ORDER MADE)
Appellant
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: Mr S Kerr of counsel, instructed by Paragon Law
For the Respondent: Ms N Kerr, Senior Home Office Presenting Officer

Heard at Field House on 24 April 2025

DECISION AND REASONS

1. Mr Daniel Opoku Koopmann (“the Appellant”) is a citizen of Germany and therefore an EEA citizen. He claims to have arrived in this country in September 2014. On 31 May 2019 he made an EUSS application and he was granted indefinite leave to remain on 5 June 2020.

2. On 12 February 2021 at Northampton Crown Court, he was sentenced to a total of four years imprisonment in a young offenders institution.

3. The Secretary of State for the Home Department (“the Respondent”) served a stage 1 decision on 13 May 2021 and a decision notice on 21 October 2022. The Appellant appealed against that decision. His appeal was heard on 12 September 2023 at Birmingham by a First tier Tribunal Judge (“the Judge”). By a decision dated 16 September 2023, the appeal was dismissed.

4. Permission to appeal was refused by the First tier Tribunal on 23 September 2023. A renewed application was made on 7 November 2023. Permission was granted by the Upper Tribunal on 20 February 2025.

5. The Appellant filed a Rule 15 notice dated 9 April 2025.

6. There are two grounds of appeal. Ground 1 alleges that the Judge failed to conduct an assessment of the proportionality of the Appellant’s expulsion as required by Regulation 27 of the Immigration (European Economic Area) Regulations 2016 (“the 2016 Regulations”). Ground 2 alleges that the Judge failed to provide adequate reasons in his consideration of the psychiatric evidence submitted on behalf of the Appellant.

7. We consider there to be an error of law in relation to Ground 1, and therefore we do not regard it as necessary to address Ground 2.

8. It was not in dispute before the Judge or the Upper Tribunal that the Appellant, as a German citizen with permanent residence, had become entitled to the second level of protection provided by the 2016 Regulations.

9. The Judge found the appellant’s conduct to represent a genuine, present and sufficiently serious threat affecting one of the fundamental interests of society at [44]. It is also not in dispute that the Judge was therefore required to go on to consider whether deportation meets the requirements of proportionality under the 2016 Regulations in accordance with MC (Essa principles recast) Portugal [2015] UKUT 520 (IAC).

10. The Judge at [44] stated that:

On what is before me I am satisfied that the Appellant’s conduct does represent such a threat. He has shown a disregard for the law and he still fails to acknowledge his own criminality. It is therefore necessary to consider the proportionality of removal.

The reference to “such a threat” is to [42] where it is identified as:

a genuine, present and sufficiently serious threat affecting one of the fundamental interests of society, taking into account his past conduct. The threat does not need to be imminent.

This is a reflection of the words of Regulation 27(5)(c). Looking at [42] and [44] together, it is clear that the Judge identified the need for a proportionality assessment.

11. Having identified the need for that assessment, we find that, as alleged by Ground 1 and in line with the reasons given for granting permission to appeal, the Judge did not then conduct the required assessment of proportionality for EU law purposes.

12. Ms Kerr, for the Respondent, argued that, while not specifically signposted within the decision, there was in reality the required assessment of proportionality. We disagree. Ms Kerr was not able, when asked, to take us to parts of the decision that demonstrate substantive consideration of proportionality in relation to the Appellant’s EU rights. We regard it as significant that, immediately following [44], there is reference to consideration of the Appellant’s Article 8 ECHR rights.

13. It is established by binding authority that there is a requirement in EEA deportation cases that there be two exercises: an assessment of proportionality as a matter of EU law as required by the Regulations, and an assessment under Article 8 ECHR, the latter including consideration of proportionality for EHCR purposes.

14. AA (Poland) v Secretary of State for the Home Department [2024] EWCA Civ 18 at [71] establishes that the EEA and ECHR Article 8 exercises are legally distinct and should be addressed separately and in turn. The order of consideration is stated to be as follows:

The application of the 2016 Regulations is a legally distinct exercise from the assessment of a human rights claim. Where both arise, they should be addressed separately and in turn. The 2016 Regulations should be addressed first, including the assessment required by Regulation 27(5)(a) of whether deportation would comply with the EU principle of proportionality. The provisions of Part 5A of the 2002 Act have no part to play at that stage. But they must be addressed as part of the human rights assessment, if the public interest question arises.

15. The Supreme Court in R (on the application of Lumsdon and others) v Legal Services Board [2015] UKSC 41 at [26] held that the principle of proportionality in EU law is:

…neither expressed nor applied in the same way as the principle of proportionality under the European Convention on Human Rights. Although there is some common ground, the four-stage analysis of proportionality which was explained in Bank Mellat v Her Majesty's Treasury (No 2) [2013] UKSC 39; [2014] AC 700, paras 20 and 72-76, in relation to the justification under domestic law (in particular, under the Human Rights Act 1998) of interferences with fundamental rights, is not applicable to proportionality in EU law.

16. Ms Kerr sought to rely on the Judge’s analysis at [36], seeking to incorporate into the Judge’s reasoning the contents of the Secretary of State’s decision letter. We are unable, even taking a benevolent approach to the decision, to discern from that paragraph or from the decision as a whole any or sufficient separate consideration of proportionality distinct from that under the ECHR. We do not consider that the bare reference to the decision letter amounts to consideration of proportionality for EU purposes as required by the 2016 Regulations.

17. Accordingly, we are unable to infer from the Judge’s consideration of ECHR proportionality that there has been compliance with the requirement to address EU proportionality. We agree with Mr Kerr for the Appellant that the issue of proportionality for the purposes of EU law and under the ECHR is viewed through different lenses, and in this case, there is an absence of analysis of proportionality for EU purposes, so as to amount to an error of law in the application of Regulation 27.

18. Having found there to be a material error of law in relation to Ground 1, we do not consider it necessary to proceed to address Ground 2.

19. Having indicated a provisional view to the parties as to the error of law in relation to Ground 1, submissions were heard on the issue of disposal. The Appellant seeks remittal for a fresh hearing before the First tier Tribunal. The Respondent urged the Upper Tribunal to re-make the decision, and submissions were made as to the preservation of findings.

20. We are mindful that the hearing was conducted in September 2023. The proportionality assessment requires consideration of the Appellant’s present circumstances. The issue of conduct for the purposes of Regulation 27(5) (c) requires consideration of whether the Appellant’s personal conduct represent a “genuine, present and sufficiently serious threat… [emphasis added]”. If we were to preserve findings in relation to the threat posed by the Appellant in 2023, but allow him to adduce fresh evidence (as he indicated his intention to do by way of a Rule 15 notice), there would be a requirement to apply the statutory test under Regulation 27(5) across two different time frames. We do not consider that to be a lawful approach. We also do not consider that preserving findings made in 2023 as to present threat would be consistent with the requirement upon the Tribunal re-hearing the matter imposed by Regulation 27 (5) (c) to assess present threat for itself. The Tribunal must be able to consider whether, at the date of the remitted hearing, the requirements of Regulation 27(5) (c) are met.

21. Taking into account the length of time that has passed since the hearing, and noting the contents of the Rule 15 notice, we consider that there will be extensive new fact finding to be undertaken. Having regard to the nature and extent of the findings to be made, the matter should be remitted to the First-tier Tribunal under section 12(2) (b) (i) of the Tribunals Courts and Enforcement Act 2007 and further to 7.2 (b) of the Presidential Practice Statement.

22. We have considered preserving elements of the credibility findings made by the Judge. We consider that this, too, would fetter the new decision maker’s ability to conduct a holistic analysis of the evidence. No findings are therefore preserved, although the oral evidence given to the Tribunal by the Appellant still stands and can be taken into account by the Judge who determines the matter on a de novo hearing.

Notice of Decision

1. The Judge erred materially for the reasons identified. We set aside the decision pursuant to Section 12(2)(a) of the Tribunals Courts and Enforcement Act 2007.
2. The Appeal is remitted to be heard by the First tier Tribunal at Birmingham, by a Judge other than Judge of the First tier Tribunal Broe.
3. Any witness evidence upon which the Appellant proposes to rely shall be filed and served no later than 28 days before the date of the remitted appeal hearing.
4. The Appellant shall file and serve a skeleton argument no later than 28 days before the date of the remitted appeal hearing.

Siân Davies

Deputy Judge of the Upper Tribunal
Immigration and Asylum Chamber

16 May 2025