Tribunal decisions

The decision

IN THE UPPER TRIBUNAL
IMMIGRATION AND ASYLUM CHAMBER
Case No: UI-2023-004991

First-tier Tribunal No: HU/56915/2022
IA/11205/2022

THE IMMIGRATION ACTS

Decision & Reasons Issued:

On 18th of June 2025

Before

UPPER TRIBUNAL JUDGE HOFFMAN
DEPUTY UPPER TRIBUNAL JUDGE RUTH

Between

SECRETARY OF STATE FOR THE HOME DEPARTMENT
Appellant
and

DAMO AMON AKA GUSTAVE
(NO ANONYMITY ORDER MADE)
Respondent

Representation:
For the Appellant: Mr Slatter of Counsel, instructed by TMC Solicitors.
For the Respondent: Ms Nolan, Senior Home Office Presenting Officer.

ANONYMITY

The respondent had previously been granted anonymity pursuant to Rule 14 of the Tribunal Procedure (Upper Tribunal) Rules 2008. Having regard to the fundamental principle of open justice and to the fact that counsel for the respondent confirmed there was no application or need for such an order in this case, we revoke the previous anonymity order made by the First-tier Tribunal.

Heard at Field House on 21 March 2025

DECISION AND REASONS
Introduction
1. The appellant appeals with permission against the decision of First-tier Tribunal Judge Hamilton (the judge), dated 14 August 2023, to allow the respondent’s appeal against the decision of the appellant to refuse leave to remain on human rights grounds, following the making of a deportation order against the respondent on 14 September 2022.
2. For ease of reference we hereafter refer to the appellant as the Secretary of State and the respondent as the applicant.
Background
3. The history of the appeal and of the applicant’s immigration history and criminality is not in dispute between the parties and is summarised by the judge between paragraphs [3] - [17] of the decision.
4. In essence, having entered the UK at around four years of age in 2004, the applicant, who is a citizen of the Ivory Coast, was subsequently granted an EEA residence card as the step-son of an EEA national. He was then granted EEA permanent residence on 16 November 2018. Having been convicted of drugs offences on 13 January 2020, the applicant was sentenced to five years and three months imprisonment on 7 February 2020. On 14 May 2020 the Secretary of State issued a letter informing the applicant of his liability to deportation by reference to the Immigration (European Economic Area) Regulations 2016 (the EEA Regulations 2016). The applicant responded to that letter and asserted his rights under Article 8 of the European Convention on Human Rights (ECHR). In prison both on 31 December 2020 and 31 June 2021, the applicant had not made an application under the EU settlement scheme (EUSS) by the end of the grace period on 31 June 2021. As a result, the Secretary of State reconsidered her position and re-issued the liability to deportation notice on 25 November 2021, this time by reference to the UK Borders Act 2007, specifically asserting the applicant was not a person to whom the EEA Regulations 2016 applied. The applicant having then made representations for leave on human rights grounds through his representatives, the Secretary of State refused those representations and made a deportation order against him 14 September 2022. He appealed against the refusal of his representations, on human rights grounds only, on 3 October 2022. On 10 October 2022 the applicant made an application for leave to remain under the EUSS, which remains outstanding at the date of hearing.
Appeal in the First-tier Tribunal
5. In the First-tier Tribunal, while recognising that the appeal related to human rights grounds in the context of the domestic deportation regime at paragraphs [25] – [30], the judge nevertheless concluded, at paragraph [40], that the applicant was protected by the Agreement on the withdrawal of the United Kingdom of Great Britain and Northern Ireland from the European Union and the European Atomic Energy Community (the Withdrawal Agreement), and applied the deportation provisions within the EEA Regulations 2016, notably regulation 27. He declined to make any human rights findings at paragraph [57]. He allowed the appeal on that basis the applicant was entitled to the highest level of protection from deportation under EU law and that the Secretary of State had not shown the applicant’s deportation was justified on imperative grounds of public security. He noted a concession from the Secretary of State that if the ‘imperative grounds’ protection applied to the applicant, he could not be deported.
Appeal to the Upper Tribunal
6. Having been unsuccessful in the First-tier in her application for leave to appeal against the decision of the judge, the Secretary of State renewed her grounds in the Upper Tribunal. These were, in essence:
a. The applicant having failed to make an application under the EUSS by 31 June 2021, the Citizens’ Rights (Application Deadline and Temporary Protection) (EU Exit) Regulations 2020 (the Grace Period Regulations) did not apply to him, despite him having permanent residence under the EEA Regulations 2016. The judge had no jurisdiction to consider the appeal by reference to the EEA Regulations 2016 and by doing so had made a material error of law.
7. In a decision dated 12 December 2023, Upper Tribunal Judge Norton-Taylor granted permission. He took the view it was at least arguable the judge had erred in applying the EEA Regulations 2016, rather than the domestic deportation regime, including Part 5A of the Nationality, Immigration and Asylum Act 2002 (NIAA 2002).
8. At the error of law hearing neither party had complied with the directions of the Tribunal to supply written arguments in advance of the hearing, although the applicant did provide a skeleton argument on the morning of the hearing. We heard oral submissions from both parties. We address any submissions of significance in the discussion section below.
Discussion
9. We have concluded that the Secretary of State is correct and the Grace Period Regulations do not apply to the applicant because he had failed to make an EUSS application before 31 June 2021: see regs 2 and 3(2). There was no appeal by reference to the EEA Regulations before the judge. As he acknowledged at paragraph [1] of his decision, the applicant had appealed on human rights grounds under s.82(1) of the NIAA 2002. Therefore, he had no jurisdiction to consider those regulations. His consideration of them was therefore an error of law. We return to whether that error is material below.
10. In reaching that conclusion we have been considerably assisted by the decision of the Upper Tribunal in Abdullah and Ors (EEA; deportation; procedure) [2024] UKUT 00066 (IAC). At paragraph [105 (C) & (E)] the Upper Tribunal stated:
“(C) In respect of conduct carried out prior to 31 December 2020, the EEA Regulations only apply directly to an individual (and thus gave rise to an appeal under those regulations) if:
(1) The decision was taken under the EEA Regulations prior to 31 December 2020 or in connection with an application pending under the regulations; or,
(2) The individual was an EEA citizen (or a family member of such a person) lawfully resident under the EEA Regs (including those who had acquired permanent residence under reg 3 the EEA Regulations) and either:
(i) The decision was taken by 30 June 2021; or
(ii) Was taken after that date but when a valid application under the EUSS had been made before 30 June 2021 and was still pending (but not if they had been granted leave under the EUSS); or
(3) Is a person who falls within the scope of the CRRE Regulations […]
(E) If a decision to deport was not made under the EEA Regulations, then there is no right of appeal under those regulations […]”
11. There is no dispute in this matter that the criminal conduct took place before 31 December 2020, the applicant had permanent residence before that date, but had not made an application under the EUSS before 30 June 2021. We note that none of the provisions of the Citizens’ Rights (Restrictions of Rights of Entry and Residence) (EU Exit) Regulations 2020 (the CRRE Regulations) apply to the appellant. The decision to deport the appellant and to refuse his human rights application was made by reference to the UK Borders Act 2007 and not the EEA Regulations.
12. Mr Slatter, for the applicant, argues that even if consideration of the EEA Regulations was an error of law, it was not a material error. He submits that in the context of a human rights appeal, the decision of the Secretary of State of 14 September 2022 would be ‘not in accordance with the law’ in terms of question four of the five crucial questions in Razgar [2004] UKHL 27. Relying on the conclusions of the Upper Tribunal in Abdullah, between paragraphs [90] – [104], he argues that the appellant continues to enjoy the protections of the Withdrawal Agreement and, as it is not disputed he cannot be deported on ‘imperative grounds’, the judge would have reached the same conclusions in relation to Regulation 27 of the EEA Regulations 2016, had he considered them in the context of the human rights appeal and the fourth Razgar question.
13. In our judgment, however, these submissions fail to grapple with the fundamental problem that the judge did not consider any of the Razgar questions and explicitly declined to do so. In fact, at paragraph [57], the judge expressly states that he does “not consider it necessary or appropriate to decide whether the [applicant’s] removal breaches his rights conferred by article 8.” He therefore failed to determine the appeal that was properly before him. Since no appeal under the EEA Regulations was before the judge, the Razgar questions, including the approach mandated by s. 117C of the NIAA 2002, were fundamental to the appeal and the failure to consider them was a material error. We agree with the submissions made on behalf of the Secretary of State that we cannot simply read into the discussion of the judge under the EEA Regulations the answers to the Razgar questions or make presumptions about what conclusions he would have reached had he assessed the matter by reference to Razgar and s.117C of the NIAA 2002. That means that consideration of the appeal by reference to the EEA Regulations was a material error of law.
14. As to disposal, we note that the applicant has made an application under the EUSS which remains outstanding before the Secretary of State. If that application is eventually rejected and the applicant appeals, the First-tier will be best placed to consider both that appeal and this, in one linked proceeding. We therefore remit the matter to the First-tier, to be considered by any judge other than Judge Hamilton. Given the potential for the two appeals to be heard together, we do not preserve any of the findings made by Judge Hamilton.
15. However, as suggested at paragraph [104] of Abdullah, this appeal should be stayed in the First-tier until a decision is made by the Secretary of State in relation to the EUSS application.

Notice of Decision & Directions
We find that the decision of the First-tier Tribunal did contain a material error of law.
We allow the appeal brought by the Secretary of State and set aside the decision of the First-tier Tribunal with no findings preserved.
We remit the matter to the First-tier Tribunal at Hatton Cross to be re-heard by any judge other than Judge Hamilton.

Evan Ruth

Deputy Judge of the Upper Tribunal
Immigration and Asylum Chamber

28 March 2025