UI-2024-000952

• Status of case: Unreported
• Hearing date: 18 Dec 2025
• Promulgation date: 07 Oct 2026
• Publication date: 27 Oct 2026
• Last updated on: 27 Oct 2026

The decision

IN THE UPPER TRIBUNAL
IMMIGRATION AND ASYLUM CHAMBER
Case No: UI-2024-000952
First-tier Tribunal No: EU/50989/2023
LE/00276/2023

THE IMMIGRATION ACTS

Decision & Reasons Issued:

7th October 2026

Before

UPPER TRIBUNAL JUDGE O’CALLAGHAN
UPPER TRIBUNAL JUDGE RASTOGI

Between

AB (CYPRUS)
(ANONYMITY ORDER MADE)
Appellant
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: Ms S Saifolahi and Ms N Rakhimjonova, Counsel, instructed by Sterling Lawyers
For the Respondent: Ms J Anderson, Counsel, instructed by the Government Legal Department

Heard at Field House on 17 and 18 December 2025

ANONYMITY ORDER

Pursuant to rule 14 of the Tribunal Procedure (Upper Tribunal) Rules 2008, the appellant, his wife and adult child are granted anonymity.

No-one shall publish or reveal any information, including the name or address of the appellant, his wife and adult child likely to lead members of the public to identify the appellant, his wife and adult child.

Failure to comply with this Order could amount to a contempt of court.

DECISION AND REASONS
Introduction
1. This appeal is concerned with a decision of the respondent to refuse the appellant pre-settled status under paragraph EU16(d) of Appendix EU to the Immigration Rules on public security and public policy grounds. The appellant is both a Cypriot and a European Union citizen as well as a citizen of the Russian Federation (‘Russia’). He has previously been excluded from protection under the 1951 Convention Relating to the Status of Refugees by application of article 1F(b) of the Convention.
2. Several issues arising in this appeal require the Upper Tribunal to consider the scope and application of the Grand Chamber judgment in Case C-181/23 European Commission v Malta [2025] 3 CMLR 9 (‘the Malta case’)
3. This Tribunal is required to consider, inter alia:
i. Did Cyprus, a Member State of the European Union, confer citizenship upon the appellant through a transactional citizenship by investment scheme that manifestly disregarded the Union requirements of solidarity and good faith?
ii. Does conferral of national citizenship by a Member State, and attendant Union citizenship, require the beneficiary of naturalisation to have a “genuine link” with that State for the purposes of Union law?
iii. Was the appellant at the time of his application for pre-settled status under the EU Settlement Scheme both a citizen of Cyprus and a Union citizen, and if so, is he presently a citizen of Cyprus and a Union citizen?
iv. If so, is the United Kingdom required to unconditionally recognise the national citizenship, and attendant Union citizenship, conferred by the Cypriot authorities upon the appellant?
v. If Cypriot citizenship was conferred through a transactional citizenship by investment scheme that manifestly disregarded the Union requirements of solidarity and good faith, does Union law permit the United Kingdom to deny on public policy grounds the derived rights that are guaranteed by Union citizenship in the Treaties namely free movement and residence rights on the basis that the administrative system for granting national citizenship breaches Union law?
Background
4. As a national of Russia, the appellant entered the United Kingdom as a visitor in 2003 and was subsequently granted leave to remain as a work permit holder in December of the same year. A later application for indefinite leave to remain as a work permit holder was refused on character and conduct grounds.
5. The appellant accepts that prior to his arrival in the United Kingdom he rose to a senior position in the Russian energy sector. Upon appointment to the role, he maintains that he was instructed to illicitly divert revenues from his company, pooled with other funds originating from a separate petrochemical company, for the benefit of others. He considered that he could not refuse the instruction. Initially, in the region of US$5-6million a month was diverted through his actions, though this subsequently decreased to some US$2-3 million a month. By December 2002, approximately nine months after the embezzlement commenced, the sum of the diverted money from both companies reached approximately US$68 million, of which in the region of US$35 million came from the appellant’s company. Of the total sum, US$43 million was directed to others, and the remaining US$25 million was divided between four businessmen including the appellant who personally received around US$6 million in what was described as “a performance bonus”. He paid some of the money he received to a fifth businessman. Consequent to a struggle arising from tensions between competing persons hierarchically above him, and his perceived difficulties with a senior figure on the conglomerate’s management board, the appellant was transferred to another company in 2003. He considered this move was undertaken to place him into a form of isolation having fallen out of favour.
6. Criminal proceedings were initiated in Russia against the appellant. He considered them to be punitive by intention, instigated consequent to his falling out of favour, and not genuine in nature. He decided to work overseas for a time. He returned to Russia on occasion. Whilst in Russia, he was interviewed by an investigator. He again left Russia and after spending time elsewhere in Europe, he entered the United Kingdom as a visitor.
7. Criminal charges were brought against him under article 201, part 1 of the Criminal Code of the Russian Federation relating to abuse of official position. These charges were later combined into a single case, comprising two separate allegations both concerning unlawful financial activity. The appellant was alleged to have engaged in a conspiracy to defraud in relation to an undervalued sale of a block of shares in a State-owned company, and additionally to have engaged in theft involving funds granted and used to purchase and refurbish an apartment. Other persons were charged alongside him. The appellant instructed lawyers and appeals against the institution of proceedings were rejected by judges on three occasions. An order for the appellant’s arrest was made, and an Interpol Red Notice was issued for his arrest.
8. Russia sought the appellant’s extradition from the United Kingdom in 2007. The appellant challenged the request. In the meantime, the respondent concluded that the appellant should be permitted to remain in this country because she was satisfied that there was sufficient evidence of a potential violation of rights protected by article 3 ECHR if he were to be removed to Russia. Consequent to the appellant being granted restricted leave to remain in this country, Senior District Judge Workman sitting at the City of Westminster Magistrates’ Court in 2009 stayed proceedings in the extradition case having concluded that it would be an abuse of process for it to proceed any further.
9. By a letter dated 21 February 2018, a Chief Investigator, Ministry of Internal Affairs of the Russian Federation, Moscow Region, gave notice to the appellant through his lawyer of the discontinuation of criminal proceedings consequent to the absence of corpus delicti, or the offences having not been established to have actually occurred.
10. Interpol confirmed by a letter dated 8 June 2018 that as of that date the appellant was not subject to an Interpol notice or diffusion.
11. A certificate issued by the Ministry of Internal Affairs of the Russian Federation for Moscow City on 30 October 2018 confirmed that the appellant had no conviction, including cancelled and expunged convictions, in Russia as of that date, and additionally he was not subject to criminal prosecution. The same was confirmed by a certificate issued by the Ministry of Internal Affair of the Russian Federation for St Petersburg dated 22 November 2018.
Asylum application
12. The appellant claimed asylum in 2008. The respondent refused the asylum request and issued a certificate under section 55 of the Immigration, Asylum and Nationality Act 2006 applying article 1F(b) of the Refugee Convention. In 2009, the appellant’s appeal against this decision was dismissed by the Asylum and Immigration Tribunal (Senior Immigration Judge Nichols and Immigration Judge Tipping) following a finding that he had committed a serious non-political crime outside the country of refuge prior to admission to the United Kingdom and so he was properly excluded from the protection of the Refugee Convention. The Tribunal reasoned, inter alia, that though the appellant was reluctant to refuse an instruction from on high concerning the diversion of funds, “he was also clearly aware that what he was being asked to do was theft on a very large scale from the company and involved corruption on the part of all involved”. The Tribunal further found that the appellant, “was clearly willing to take his share and although he claims that he was concerned to substantially reduce personal benefit, nevertheless, he did personally benefit in a substantial sum of money namely the US$6,000,000”. When rejecting the appellant’s case that his crime was political in purpose, the Tribunal concluded, “when he was asked to play a role, and a significant role, in diverting the funds, he admits he did not know to what extent the funds would be used for a political purpose and to what extent it would be for personal benefit. The appellant’s motivation for getting involved in the diversion of the funds was not to support a political case. In our view it was two-fold: first it was expected of him, and he could not refuse because of the power and position of those involved in the arrangement; and secondly because he expected to gain personally from the arrangement”.
13. The Upper Tribunal (Senior Immigration Judges Latter and Eshun) upheld the Tribunal’s decision concluding that though the actions had taken placed against a background of widespread corruption for personal gain, the appellant had failed to identify any real political motive for the crime committed. It was open to the Asylum and Immigration Tribunal to find that the appellant’s motivation was such that the crime could not be categorised as political. The Upper Tribunal rejected the appellant’s contention that the embezzlement of funds could only properly be regarded as one crime, and his personal gain was incidental to the purpose of the crime and the motive for committing it. There was no onward appeal brought with permission to the Court of Appeal.
14. The respondent accepted at the time of her issuing a section 55 certificate, and continues to accept, that the appellant cannot be removed to Russia on article 3 ECHR grounds. She granted him six months’ restricted leave on several occasions under her Restricted Leave policy. This was extended to twelve months restricted leave in 2019.
15. In 2019, the appellant submitted an application for indefinite leave to remain which was refused by the respondent, though he was subsequently successful before Upper Tribunal Judge Blundell in securing a quashing order in relation to that decision having pursued judicial review proceedings, reported by this Tribunal as R (A) v Secretary of State for the Home Department (Extradition and immigration powers) [2021] UKUT 00321 (IAC). We understand this application for settlement was not pursued as the appellant secured Cypriot nationality in 2019 and he commenced exercising EU Treaty rights in this country as an EEA citizen through self-employment.
EU Settlement Scheme application
16. An application under the EU Settlement Scheme was made by the appellant in May 2021. Though the application was identified as being made in respect of seeking ’settled’ status, the applicant now accepts that he had not at the relevant time continuously resided in the country for the required period of five years as a Cypriot citizen and consequently the application was properly to be considered as one seeking pre-settled status. The respondent refused the application under paragraph EU16 of Appendix EU by a decision dated 8 February 2023, concluding that:
i. the appellant (i) failed to disclose relevant information which was known to him and was relevant to the respondent’s consideration, and (ii) acted with a lack of candour under paragraph EU16(a);
ii. the appellant is a relevant excluded person, and the respondent was satisfied that refusal was justified on grounds of public policy under paragraph EU16(d).
17. The respondent’s case has subsequently developed to include public security as a justification for refusal within her paragraph EU16(d) decision.
Proceedings to date
18. The appellant appealed to the First-tier Tribunal under regulation 8 of the Immigration (Citizens’ Rights Appeals) (EU Exit) Regulations 2020 on the grounds that (i) the respondent’s decision was not in accordance with the residence scheme, namely Appendix EU, and (ii) the decision breached his rights enjoyed under Chapter 1 of the Withdrawal Agreement.
19. The appellant was successful before the First-tier Tribunal. The respondent was granted permission to appeal and Upper Tribunal Judge O’Callaghan set-aside the First-tier Tribunal’s decision, though preserving various findings of fact and law in relation to the Tribunal’s reasoning that the respondent had failed to prove, on the balance of probabilities, that the decision made under paragraph EU16(a) of Appendix EU was lawful.
20. The preserved findings of fact include the First-tier Tribunal’s conclusion in respect of paragraph EU16(a) that “it is quite clear” the appellant disclosed both his Cypriot and Russian nationality by express reference in the EU Settlement Scheme application form and that “there is no evidential basis” that he failed to disclose relevant information or that he provided misleading information, representations or documents.
21. The hearing before this panel was held at Field House on 17 and 18 December 2025. The appellant attended and gave oral evidence on the first day. His partner did not attend either day on ill-health grounds. No issue was raised by the respondent as to the partner’s non-attendance. Both parties relied upon oral evidence presented by the appellant at the hearing. Ms Saifolahi and Ms Anderson provided oral and written submissions of the expected high standard.
The legal framework
The domestic legislation
The EU-UK Withdrawal Agreement
22. The Withdrawal Agreement establishes the United Kingdom’s orderly withdrawal from the European Union, in accordance with article 50 of the Treaty of the European Union (‘the TEU’). It entered into force at 23.00 GMT on 31 January 2020.
23. Title II is concerned with rights and obligations. It covers the citizens’ rights provisions that took effect at 23.00 GMT on 31 December 2020 (‘the specified date’) following the end of the transition period. Article 10 lists the categories of people who are covered by Title II, including Union citizens who exercised their right to reside in the United Kingdom in accordance with Union law before the end of the transition period, for example through self-employment, and continue to reside in this country thereafter.
24. Article 18 places various duties on the processing of applications for the new residence status. Article 18.1(r) confirms that the applicant shall have access to judicial redress against any decision refusing to grant the residence status. The redress procedures shall allow for an examination of the legality of the decision, as well as of the facts and circumstances on which the proposed decision is based. Such redress procedures shall ensure that the decision is not disproportionate.
25. The conduct of Union citizens occurring before the end of the transition period may be considered under article 20, which provides a structured, proportional approach to decisions taken on grounds of public policy, public security and public health. Broadly speaking, persons who benefit under this article have more protection against refusal of residence, being considered in accordance with Chapter VI of Directive 2004/38/EC (‘the Citizens’ Rights Directive’), than those who have solely applicable domestic law standards on which to rely.
The EU Settlement Scheme and Appendix EU of the Immigration Rules
26. The EU Settlement Scheme, established in Appendix EU of the Immigration Rules, allows EEA and Swiss nationals who were in the United Kingdom before the specified date, and certain family members of such EEA and Swiss nationals, to obtain limited or indefinite leave to remain. It encompasses those exercising derived rights of residence under article 20 of the Treaty on the Functioning of the European Union (‘the TFEU’).
27. An application will be refused under paragraph EU15(1A) on grounds of suitability if the applicant’s personal conduct committed before the specified date justifies a refusal on the grounds of public policy, public security or public health.
28. The discretionary power under paragraph EU16 is relevant to the respondent’s challenged decision in this matter:
'An application made under the Appendix may be refused on grounds on suitability where, at the date of decision, the Secretary of State is satisfied that:
(a) It is proportionate to refuse the application where, in relation to the application and whether or not to the applicant’s knowledge, false or misleading information, representations or documents have been submitted (including false or misleading information submitted to any person to obtain a document used in support of the application); and the information, representation or documentation is material to the decision whether or not to grant the applicant indefinite leave to enter or remain or limited leave to enter or remain under this Appendix; or .
...
(d) It is proportionate to refuse the application where the applicant is a relevant excluded person because of their conduct committed before the specified date and the Secretary of State is satisfied that the decision to refuse the application is justified on the grounds of public policy, public security or public health in accordance with regulation 27 of the EEA Regulations, irrespective of whether the EEA Regulations apply to that person (except that in regulation 27 for “with a right of permanent residence under regulation 15” and “who has a right of permanent residence under regulation 15” read “who has indefinite leave to enter or remain or who meets the requirements of paragraph EU11, EU11A or EU12 of Appendix EU to the Immigration Rules”; and for “an EEA decision” read “a decision under paragraph EU16(d) of Appendix EU to the Immigration Rules”); ...'
29. A relevant excluded person is defined within annex 1 of Appendix EU as, inter alia, a person in respect of whom the respondent has made a decision under article 1F of the Refugee Convention to exclude the person from the Convention.
Immigration (European Economic Area) Regulation 2016
30. Regulation 27 of the Immigration (European Economic Area) Regulations 2016 domestically implemented article 27 and 28 of the Citizens’ Rights Directive concerned with protection against expulsion. Under this regulation a clear distinction is required to be drawn between the three levels of protection against removal – basic, intermediate and enhanced - with each level being intended to be more stringent and narrower that the immediately lower test.
31. Regulation 27(5) establishes that the public policy and public security requirements of the United Kingdom include restricting rights otherwise conferred by these Regulations to protect the fundamental interests of society. Where a relevant decision is taken on grounds of public policy or public security it must also be taken in accordance with the following principles:
(a) the decision must comply with the principle of proportionality;
(b) the decision must be based exclusively on the personal conduct of the person concerned;
(c) the personal conduct of the person must represent a genuine, present and sufficiently serious threat affecting one of the fundamental interests of society, taking into account past conduct of the person and that the threat does not need to be imminent;
(d) matters isolated from the particulars of the case or which relate to considerations of general prevention do not justify the decision;
(e) a person’s previous criminal convictions do not in themselves justify the decision;
(f) the decision may be taken on preventative grounds, even in the absence of a previous criminal conviction, provided the grounds are specific to the person.
32. Before making a decision in relation to a person who is resident in the United Kingdom, regulation 27(6) requires the decision maker to take account of considerations such as the age, state of health, family and economic situation, length of residence in the United Kingdom, social and cultural integration into the United Kingdom and the extent of links with the person’s country of origin.
33. Regulation 27(8) establishes that a court or tribunal considering whether the requirements of the 2016 Regulations are met must have particular regard, inter alia, to the considerations of the fundamental interests of society addressed in paragraph 7 to Schedule 1 which is a non-exhaustive list. In this appeal, the respondent relies upon:
(a) preventing unlawful immigration and abuse of the immigration laws, and maintaining the integrity and effectiveness of the immigration control system (including under these Regulations) and of the Common Travel Area;
(b) maintaining public order;
(c) preventing social harm;
...
(f) excluding or removing an EEA national or family member of an EEA national with a conviction (including where the conduct of that person is likely to cause, or has in fact caused, public offence) and maintaining public confidence in the ability of the relevant authorities to take such action; ...
34. Ms Anderson acknowledged on behalf of the respondent that regulation 27 and paragraph EU16 are an imperfect fit and consequently the respondent’s position is that the language of regulation 27 is to be modified.
Appeal rights
35. An appeal against a citizens’ rights immigration decision may be brought on one or both of two grounds permitted by regulation 8(1) and (2) of the Immigration (Citizens’ Rights Appeals) (EU Exit) Regulations 2020. The first ground is that the decision breaches any right which the appellant has by virtue of specified provisions of the Withdrawal Agreement, the EEA EFTA separation agreement or the Swiss citizens’ rights agreement. The second is that the decision is not in accordance with the applicable immigration rules or legislation.
36. The Upper Tribunal confirmed in Dani (non-removal human rights submissions) [2023] UKUT 00293 (IAC) that the mere refusal of leave to remain under the EU Settlement Scheme is not, without more, a human rights claim under section 113(1) of the Nationality, Immigration and Asylum Act 2002. Section 7(1)(b) of the Human Rights Act 1998 does not permit an appellant to advance a free-standing article 8 ECHR claim in proceedings before the First-tier Tribunal.
Appeal procedure
37. If a party wishes the Upper Tribunal to consider evidence that was not before the First-tier Tribunal, that party must, in accordance with rule 15(2A) of the Tribunal Procedure (Upper Tribunal) Rules 2008, send or deliver a notice to the Upper Tribunal and any other party indicating the nature of the evidence and explaining why it was not submitted to the First-tier Tribunal. When considering whether to admit such evidence, the Upper Tribunal must have regard to whether there has been unreasonable delay in producing that evidence.
European Union legislation
The Treaty on European Union
38. Article 2 of the Treaty on European Union (‘TEU’) confirms that the Union is founded on the values of respect for human dignity, freedom, democracy, equality, the rule of law and respect for human rights.
39. Article 3(2) TEU provides that the Union shall offer its citizens an area of freedom, security and justice without internal borders, in which the free movement of persons is ensured.
40. Article 9 TEU establishes that the Union observes the principle of equality of its citizen. Every national of a Member State shall be a citizen of the Union. Such citizenship shall be additional to and not replace national citizenship.
The Treaty on the Functioning of the European Union
41. Article 20 of the Treaty on the Functioning of the European Union (‘TFEU’) establishes that every person holding the nationality of a Member State shall be a citizen of the Union. Citizenship of the Union shall be additional to and does not displace the centrality of national citizenship in Europe. Union citizenship is therefore fully contingent upon possession of a Member State nationality. This article of the TFEU precludes national measures which have the effect of depriving Union citizens of the genuine enjoyment of the substance of the rights conferred by virtue of their status as such citizens
42. Article 49 TFEU establishes the right of establishment of nationals of a Member State in the territory of another Member State.
43. If the European Commission (‘the Commission’) considers that a Member State has failed to fulfil an obligation under the foundational Treaties, it is empowered under article 258 TFEU to take legal action against the Member State. It shall deliver a reasoned opinion on the matter after giving the Member State concerned the opportunity to submit its observations. If the State concerned does not comply with the opinion within the period laid down by the Commission, the latter may bring the matter before the Court of Justice of the European Union (‘the CJEU’).
Directive 2004/38/EC
44. The Citizens’ Rights Directive references by its title “the right of citizens of the Union and their family members to move and reside freely within the territory of the Member States”.
45. Chapter VI is concerned with restrictions on the right of entry and the right of residence on identified grounds. Article 27(1) sets out the general rule that freedom of movement of Union citizens and their family members may be restricted on three grounds: public policy, public security, and public health. These grounds shall not be invoked to serve economic ends.
46. Article 27(2) requires measures taken “on grounds of public policy or public security” to comply with “the principle of proportionality” and to be “exclusively” based on personal conduct. The “personal conduct of the individual” must represent a “genuine, present and sufficiently serious threat affecting one of the fundamental interests of society”. Justifications “isolated from the particulars of the case or that rely on considerations of general prevention shall not be accepted”.
47. Expulsion is permitted by article 28(1) on public policy, public security or public health grounds for those Union citizens enjoying basic level protection, though incorporated safeguards establish that conduct must represent a genuine, present and serious threat affecting a fundamental interest of society and the justification must satisfy the principle of proportionality. A mandatory individual assessment is required.
48. Intermediate protection established under article 28(2), where expulsion can only be ordered on serious grounds of public policy or public security, applies to Union citizens who have acquired the right of permanent residence, usually after five continuous years of legal residence.
49. The Directive was implemented in domestic law by the Immigration (European Economic Area) Regulations 2006 which were in turn replaced by the 2016 Regulations.
The 1951 UN Convention Relating to the Status of Refugees
50. Article 1F of the 1951 Convention confirms that the provisions of the Convention shall not apply, inter alia, to any persons with respect to whom there are serious reasons for considering that they have committed a serious non-political crime outside the country of refuge prior to their admission to that country as a refugee. Such persons are accordingly considered undeserving of international protection as refugees. The terms of article 1F are mandatory by application of the words ‘shall not’.
51. Article 33(1) of the 1951 Convention prohibits expulsion or return (‘refoulement’) in any matter whatsoever to the frontiers of territories where a person’s life or freedom would be threatened on account of their race, religion, nationality, membership of a particular social group or political opinion. This is the cardinal principle of protection of the Convention. It is a non-derogable principle and though it does not oblige States to grant asylum to refugees, it ensures that they must be allowed to stay, even if denied asylum, unless they can be sent to a third country where they are safe from persecution and from being returned to the country of persecution. Such prohibition imposes a negative duty to refrain from certain actions.
Preliminary issue: respondent's application under rule 15(2A)
52. The respondent filed and served a rule 15(2A) application under the 2008 Procedure Rules seeking to rely upon a document that was not before the First-tier Tribunal. She sought to rely upon the 2022 US State Department Report for Cyprus (‘the report’) which is said to summarise the position at that date in relation to the scheme under which the appellant’s Cypriot nationality was acquired. By her application, the respondent identified the document to be from a neutral source, the information was uncontroversial, and referencing open source information that was in the public domain.
53. Section 4 of the report is titled, “corruption and lack of transparency in Government”. There is reference to the Cypriot government bringing corruption-related charges against four people including the former president of the House of Representatives and a former House of Representatives member, who were featured in an October 2020 al Jazeera expose, the “Cyprus Papers – Undercover” in which evidence of government corruption relating to the country’s citizenship by investment programme (‘CBI’) was published.
54. The respondent states that the report was not adduced before the First-tier Tribunal because she was not aware at the time of the association between the appellant and his acquisition of citizenship under a CBI.
55. The appellant contended in her written submissions that the respondent was seeking to advance a new ground founded upon the appellant’s Cypriot citizenship through reliance on the document. The appellant asserted that the respondent’s position as to only recently discovering how he obtained his Cypriot citizenship was unsustainable as he had previously adduced evidence in support of his citizenship in these proceedings including a letter he wrote to al Jazeera dated 16 November 2020.
56. Though submitting at the hearing that the respondent’s application did not truly fall under rule 15(2A), Ms Saifolahi accepted on behalf of the appellant that it was not practical for the panel to consider the appeal in the document’s absence because of the general importance of the Grand Chamber judgment in the Malta case in these proceedings and the circumstances of the appellant securing his Cypriot nationality.
57. With the appellant not opposing the admission of the document, we admit it as its aids us in our assessment of the relevant naturalisation scheme through which the appellant secured Cypriot nationality.
58. We note the respondent’s reliance upon the arrest of the former president and a former member of the House of Representatives in respect of fraud that is outlined in the report. We consider it fair to take judicial note that post-hearing these two persons were acquitted by a three-judge criminal court in February 2026 following a finding that the prosecutors had failed to prove intent to establish involvement in fraud. A second trial concerning ten defendants, including a former Transport Minister, is ongoing with charges including bribery, extortion, conspiracy to defraud and money laundering.
59. We also note the report’s reference to the independent commission of inquiry headed by Myron Nicolatos, a former President of the Supreme Court, into the CBI under which 6,779 passports were issued. The commission found by its final report of September 2024 that approvals were granted under procedures lacking adequate oversight while ignoring warnings from the European Union on the scheme, fuelling perceptions of entrenched corruption. It concluded that 53% of the passports granted were done so illegally, facilitated by a lack of due diligence or insufficient background checks. We understand that to date the Council of Ministers has approved the revocation of over 300 passports issued under the CBI.
60. The report further details that during 2022, the Cyprus Bar Association investigated in the region of twenty-five legal firms and fined ten of them for abuse of the CBI.
Discussion
Is the appellant a citizen of the European Union?
European Union citizenship
61. The Maastricht Treaty first introduced the legal concept of citizenship into Union law. The Amsterdam Treaty established that Union citizenship is “complementary” to national citizenship, and this term was changed to “additional” by the Lisbon Treaty that linked Union citizenship more closely to the prohibition on discrimination on grounds of nationality. The post-Maastricht Treaty changes strengthened the autonomy of Union citizenship, though the additional nature is properly to be observed as relating not to nationality as a status but to the sum of rights flowing from national citizenship. Union citizenship is a fundamental status of Member State citizens, justified by its derivative nature with every Member State citizen ipso jure a Union citizen and by the wide range of rights it confers. National citizenship is a sine qua non for access to the rights of Union citizenship.
62. Article 20 TFEU is the foundational provision and summarises the main elements of Union citizenship as providing autonomous rights including the right to move and reside freely within the territory of the Member States. Union citizenship is linked with the prohibition on discrimination on grounds of nationality to strengthen the rights and entitlement of Union nationals and their families in the Member States.
Is the appellant a citizen of Cyprus?
Grant of Cypriot citizenship in 2019
63. The appellant was issued with a passport by the Cypriot authorities in June 2019, having previously been issued in the same month with a citizenship certificate. He accepts that he applied for and secured nationality through a CBI that we will refer to as to as the Cyprus Investment Programme (‘the Programme’) but was also known for a time as both the Scheme for Naturalisation of Investors in Cyprus and the Naturalisation of Investors by Exception Scheme. The CBI commenced in 2007 with its initial form established by Decision no 65.824 dated 11 July 2007. The Programme closed in 2020 with its legal foundation repealed by Parliament in December 2025. It underwent multiple adjustments during its lifespan, for example Decision no 72.676 dated 10 October 2011 and Decision 74.912 of 15 and 16 April 2013 providing for the requirements and conditions for the exceptional granting of citizenship to foreign investors/businessmen under paragraph 2(f) of Schedule 3 of the Civil Registry Laws of 2002 to 2011. However, its core requirement remained direct investments such as property purchases, setting up of companies, investing in shares and other values such as bonds of the Republic of Cyprus. It allowed applicants to obtain Cypriot nationality, and attendant Union citizenship, with no residency requirement.
64. In 2011 a direct investment of €10 million or a deposit of €15 million was required. In 2013, this was reduced to a direct investment of €5 million. In 2016, the Programme was adjusted with the real estate investment threshold lowered to €2 million. In 2019 the Programme was amended and permitted citizenship to be obtained through purchasing residential or commercial real estate worth €5 million or through collective investment
65. In May 2018, the Programme was renamed and an annual application quota of 700 was set. The donation requirement was adjusted to two €75,000 payments to two named entities, while extending the investment holding period from three years to five years. Revisions in 2019 mandated that an applicant must hold a valid Schengen visa. Additional requirements were a clean criminal record and a place of residence worth more than €500,000.
66. The appellant instructed lawyers who engaged in the application on his behalf with him signing relevant documents. He has never lived in Cyprus and there was no requirement for the purpose of the chosen naturalisation route that he be resident in the country. He bought four properties in Cyprus to meet a requirement of the CBI. Having satisfied the Cypriot authorities as to his inability to travel to Cyprus for health reasons he undertook his biometrics registration in the United Kingdom.
67. Following his asylum claim in 2007 he did not travel overseas until he was issued with his Cypriot passport. He has since visited Cyprus on occasion for short periods of time, staying at one of his properties.
EU nationality law
68. Declaration No 2 on Nationality of a Member State appended to the Maastricht Treaty states that the question whether an individual possesses the nationality of a Member State is determined by reference to the national law of the Member State concerned. We observe that this declaration has no legal value.
69. In Case C-369/90 Micheletti v Delegación del Gobierno en Cantabria [1992] ECR I-4239, and we refer in our decision to European Union law and institutions including its court in its present form, the CJEU confirmed that Union law on freedom of establishment precludes a Member State from denying free movement to a dual citizen of another Member State and a non-Union country, despite the Member State having doubts that the Member State nationality suffices to entail habitual residence with that Member State. The judgment in Micheletti establishes the principle that nationality is a matter of national law, and this was repeated post-establishment of Union citizenship in Case C-200/02 Chen v Secretary of State for the Home Department [2005] QB 325, at para. 38.
70. We observe paras. 10 and 11 of the CJEU’s judgment in Micheletti that under international law it is for each Member State, having due regard to Union law, to lay down the conditions for the acquisition and loss of nationality. Consequently, article 49 TFEU cannot be interpreted to the effect that, where a national of a Member State is also a national of a non-member country, the other Member States may make recognition of the status of Union citizen subject to a condition such as the habitual residence of the person concerned in the territory of the first Member State.
71. The approach of international law, as identified by the International Court of Justice in the Nottebohm Case (Liechtenstein v Guatemala) [1955] ICJ Rep 4, that State can disregard the nationality of a person’s country if there was no “genuine connection” with that country was implicitly rejected in Micheletti.
72. The deference to national law is not absolute, and the CJEU has addressed possible restrictions on the principle that nationality is a matter of national law. It ruled in Case C-135/08 Rottman v Friestaat Bayern [2010] QB 761 that a Member State’s decision to deprive its citizens of its nationality is not unlimited because that would result in the loss of Union citizenship. Subsequent case law in respect of deprivation is largely deferential to the Member States’ decisions to deprive citizens of their nationality, but there remains a need for a legitimate interest and the Member States are required to respect the principle of proportionality and fundamental rights in cases where its nationality may be lost.
73. In Rottman, the CJEU clarified its reference to the Member States’ power to define their nationality being subject to the proviso of “having due regard to” Union law. It enshrines the principle that, in respect of citizens of the Union, the exercise of that power, in so far as it affects the rights conferred and protected by the legal order of the Union, in particular the case of a decision withdrawing naturalisation, is amenable to judicial review carried out in the light of European Union law.
General acquisition of national citizenship
74. The rules on acquisition of national citizenship vary greatly among the Member States. There is a traditional distinction between citizenship by descent (ius sanguinis) and citizenship by virtue of birth (ius soli). Laws may reflect policy choices relating to the treatment of migrants or consequent to marriage. Nationality may flow from the award of honorary citizenship. Some Member States have expressly established routes to citizenship for persons not resident on their territory, for example descendants of individuals who lost or were denied German citizenship consequent to Nazi persecution between 30 January 1933 and 9 May 1945 are entitled to restoration or naturalisation under article 116(2) of the German Basic Law by way of reparations. A similar route exists for the direct descendants of people persecuted by the Nazi regime in Austria who can claim Austrian citizenship by means of a simple declaration under article 58(c) of the Austrian Citizenship Act. There is no residency requirement, and dual nationality is permitted.
Commission v Malta
75. The practice of granting nationality in exchange for payments has developed over time. We have observed that international law was recognised in the Nottebohm Case as permitting a State to deny recognition of a purchased nationality. However, under Union law, the acquisition of a Member State’s nationality entails Union citizenship, giving rise to a range of transactional rights under articles 21 to 24 TFEU. The existence or otherwise of limits imposed by Union law on the Member States’ rules on acquisition of their nationality was first considered by the Grand Chamber in the Malta case, an action for failure to fulfil obligations brought under article 258 TFEU.
76. The Maltese Citizenship Act governs the acquisition, renunciation, and loss of Maltese nationality. Article 10 of the Act outlines the general conditions for naturalisation, including a minimum residence requirement of one year immediately preceding the application, and at least four years of residence within a six-year period. Applicants must also meet other criteria, including proficiency in the Maltese language. A new regulation was adopted in 2020 that contained detailed rules governing the processing of applications for naturalisation for exceptional services by merit, and “by direct investment in the economic and social development in the Republic of Malta”. This followed the adoption of the Maltese Citizenship (Amendment No 2) Act 2020 amending the scope of naturalisation. As established by a CBI, the Individual Investor Programme, investors could obtain Maltese citizenship by making a financial contribution to the government of either €600,000 or €750,000. Eligibility required the purchase of real estate in Malta valued at a minimum of €700,000, or a five-year rental agreement with an annual rent of at least €16,000. Additionally, applicants were required to donate at least €10,000 to a registered non-governmental organisation engaged in philanthropic, cultural, scientific, animal welfare, or artistic activities.
77. The Commission brought infringement proceedings arguing that Union law “precludes national citizenship investor schemes that allow for the systematic granting of nationality of a Member State in exchange for pre-determined payments or investments in the absence of a requirement for a genuine link between the State and the individuals concerned”.
78. The CJEU began its judgment with a general observation that although determination of nationality falls with the exclusive competence of the Member States, the exercise of that competence must nonetheless comply with Union. In making this observation, the CJEU expressly referred to its judgments in Micheletti and Rottman.
79. In addressing the role of fundamental principles of Union law in shaping and containing national discretion, the CJEU emphasised at paras. 84 and 85 of its judgment the centrality of mutual trust and mutual recognition, principles which, together, underpin the legal architecture of an area without internal frontiers, as foreseen in article 3(2) TEU. Since Opinion 2/13 [2015] 2 CMLR 21 the CJEU has held that mutual trust rests on the premise that all the Member States share the set of common values enshrined in article 2 TEU. It was again invoked by the CJEU to justify the shared concept of nationality and based on the premise that no Member State exercises its powers in a way that is manifestly incompatible with the very nature of Union citizenship.
80. The CJEU linked Union citizenship to the principle of solidarity which forms “the very basis” of the process of integration which is an integral part of the identity of the Union as a specific legal system, accepted by the Member States on the basis of reciprocity, which makes it “impossible” for the Member States to unilaterally adopt acts that risk rights losing their Union character. The principle of sincere cooperation requires the Member States to refrain from adopting any measure that could undermine the Union’s objectives, and Union citizenship is based on the “common values contained in Article 2 TFEU and on mutual trust between the Member States as regards the fact that none of them is to exercise that power in a way that is manifestly incompatible with the very nature of Union citizenship”.
81. The bedrock of the bond of nationality of a Member State is formed by the special relationship of solidarity and good faith between that State and its nationals and the reciprocity of rights and duties. Whilst the definition of the conditions for granting nationality do not fall within the competence of the Union, but within that of each Member State which has a broad discretion in the choice of criteria to be applied, the criteria is to be applied in compliance with Union law. Consequently, the common minimum standards on which mutual trust is anchored in respect of the conferring of nationality is that it must be based on a special relationship of solidarity and good faith.
82. Several key features of the Maltese investment citizenship scheme were subject to scrutiny. The scheme made predetermined payments or investments a central condition for naturalisation, thereby transforming the nationality acquisition process into a transactional mechanism with the commercialisation of the grant of a Member State nationality following a transactional procedure. Further, though Malta contended that the scheme required a period of residence, the CJEU concluded that the requirement was largely formal and devoid of substantive integration conditions. The CJEU also observed that the 2020 investor citizenship scheme was publicly presented by the Republic of Malta as a naturalisation scheme offering primarily the benefits arising from Union citizenship, in particular the right to move and reside freely in the other Member States.
83. The CJEU found that Malta, as a Member State, manifestly disregarded the requirements of solidarity and good faith, characterised by the reciprocity of rights and duties between the Member States and their nationals, when its CBI scheme amounted to a mere transactional agreement from which the status of Union citizen was granted in exchange of predetermined payments or investments. The CJEU confirmed that the commercialisation of a common European ‘good’, in this instance Union citizenship, by a Member State is not compatible with the very substance of the Union as a polity and adversely impacts upon the symbolic value of democratic rights and participation.
84. We consider that Micheletti continues to apply unabatedly as confirmed by the CJEU at paras. 81 and 101 of its judgment. With the Member States being required to unconditionally recognise the nationality granted by other Member States, and with mutual trust being justified by the premise that the Member States share and respect a common set of values, this must by necessity mean that there is a Union safeguard with regard to when such nationality is granted. The recognition of nationality between the Member States is unconditional because of the trust that Member States can place in the Union institutions ensuring that every Member State respects certain minimum requirements when granting its nationality.
85. The respondent contended before us that the CJEU set out a mandatory requirement that an applicant for naturalisation has a “genuine link” to the Member State prior to acquiring nationality of that State. We do not agree. Though the Commission placed reliance upon there being a requirement of a genuine link between the Member States and their nationals this was rejected by Advocate General Collins at paras. 41 to 58 of his opinion. The CJEU did not adopt the approach either. We consider that the CJEU was cognizant that it had declined to import the Nottebohm approach from international law in Micheletti. Therefore, whilst a Member State may require a genuine link before granting its own citizenship to an individual, no such positive requirement exists generally in Union law. Instead, the relationship is one of solidarity and good faith between the Member State and its nationals, reflecting the mutuality of obligations arising. Member State nationality underpins article 20(1) TFEU and so a Member State’s naturalisation practice must not be manifestly incompatible with the very nature of Union citizenship.
86. Our conclusion as to “genuine link” is reinforced by the English version of the court’s findings not referencing the notion. Nor does the German version speak of “echte Bindung”, or the French one of “lien reel”. Rather, all three speak of a “special relationship of solidarity and good faith”, “besonderes Verbundenheits- und Loyalitätsverhältnis”, and “rapport particulier de solidarite et de loyauté”.
87. We are mindful that Micheletti addresses only recognition of Member State nationality by other Member States, not the substance of the conferring Member State’s decision. By that judgment the CJEU precluded host-Member State review but did not prescribe how a Member State must decide whom it may naturalise. It imposed a negative minimum requirement: a Member State may define its special relationship with its own nationals, but it may not undermine Union values enshrined in article 2 TEU.
88. There exists a distinction in Union law as to review between conferral and withdrawal of citizenship. In respect of the latter, the CJEU confirmed in Case C-221/17 Tjebbes v Minister van Buitenlandse Zaken [2019] QB 1476 the requirement to undertake an individual assessment of proportionality as to the consequences of the deprivation of Union citizenship on the person concerned as well as the right to seek judicial review. The review is more restricted as to the conferral of citizenship where it is the Member State who may be breaching the principle of solidarity and good faith for example in the Malta case through the commodification of citizenship where Malta was interrupting the relationship of solidarity with the rest of its own citizenry. In adopting a restricted review, the Court limited its assessment to instances in which a Member State manifestly exceeds its discretion. As an example of this restricted review, we take judicial note that in Corte Costituzionale Sentenza 142/2025 (24 June 2025) the Italian Constitutional Court considered the Malta case and concluded it to be irrelevant to the Italian rules on conferring citizenship by ius sanguinis.
Was the appellant a citizen of Cyprus at the date of application and does he remain so?
89. Malta did not request a limitation of temporal effect, and the CJEU did not address that matter ex offico. Judgments in proceedings brought by the Commission take effect ex tunc, see for example Case C-35/97 Commission v France [EU:C:1998:431], at paras. 49 to 52. Consequently, the illegality was from the outset and in relation to all grants of nationality under the Maltese scheme.
90. We observe that proceedings brought against Malta under article 258 TFEU were of an objective nature, and it is part of the ordinary competence of the CJEU to establish only if a legal provision has or has not been infringed. There is no obligation on the Maltese authorities to withdraw the grants of citizenship made under the scheme because the judgment does not change the fact that Union law cannot, by itself, take away a person’s citizenship, either of a Member State or of the Union. The respondent is not aided by her reliance upon the Supreme Court judgment in R (Wang) v Secretary of State for the Home Department [2023] UKSC 21, [2023] 1 WLR 2125 which is not directed to this requirement of Union law.
91. As addressed in the US State Department report, Cyprus is taking steps to review the issuing of citizenship under its Programme. However, we note that to date the authorities have revoked only some 5% of the grants. The other recipients remain both citizens of Cyprus and of the Union.
92. The respondent raised in argument that the appellant may no longer enjoy Cypriot citizenship. The appellant has confirmed that there is “no evidence” that his Cypriot nationality no longer exists. We proceed on the basis that the appellant’s position is that he has not been informed that his grant of citizenship has been revoked, but he is aware that reviews of citizenship issued under the Programme are being undertaken.
93. We find that the appellant was a Cypriot national when he made his application under the EU Settlement Scheme and remains a Cypriot national. The judgment of the CJEU in the Malta case does not revoke his de jure citizenship.
The exercise of EU Treaty rights in the United Kingdom
94. The appellant’s position is that he was economically active in the United Kingdom as a Cypriot citizen, and so as a Union citizen, for a time before the specified date having enjoyed the benefit of rights established by article 49 TFEU on freedom of establishment. His self-employment is evidenced by various documents issued by HM Revenue and Customs and filed with this Tribunal.
95. The respondent considered as fact in her challenged decision that the appellant resided in Cyprus at the time of his EU Settlement Scheme application and had done so for some years. This contention was not pursued orally before us. We find that the respondent was in error. The appellant has resided in the United Kingdom since 2003. Whilst he has utilised his Cypriot passport to travel overseas, including to Cyprus for relatively short periods of up to a few months a year from the turn of this decade, he was resident in this country at the date of his application and remains resident here.
96. Since the status of Union citizenship is automatic, it is not reduced to being effective only once a person has exercised the free movement rights that attach to that status by virtue of article 21 TFEU. Rights attendant to Union citizenship commenced upon the appellant being granted Member State nationality in 2019.
97. For purpose of regulation 27 of the 2016 Regulations, the appellant having been granted Cypriot citizenship in June 2019, he exercised EU Treaty rights for less than five years at the date of the respondent’s decision on 8 February 2023.
Residence scheme appeal
98. The appellant’s EU Settlement Scheme application was refused under paragraph EU16(d) of Appendix EU. Unlike EU15 which is concerned with a person subject to a deportation order or a decision to make such order or a person is to subject to an exclusion order or exclusion order and where refusal is mandatory on grounds of suitability, the power to refuse under EU16 is a discretionary ground of refusal. A proportionality assessment is required.
99. The burden of proof is on the respondent to show that paragraph EU16 applies. The standard of proof is the ordinary civil standard of the balance of probabilities.
100. The structure of paragraph EU16(d) is consistent with Joined Cases C-331/16 and C-366/16 K v Staatssecretaris van Veiligheid en Justitie, HF v Belgische Staat [2019] 1 WLR 1877 where the CJEU confirmed that the need for a restriction on the freedom of movement and residence of a Union citizen has to be assessed on a case-by-case basis.
101. There are two core requirements to paragraph EU16(d). The first is that the appellant must meet the definition of “relevant excluded person” because of their conduct committed before the specified date. The appellant accepts that he meets the definition and so is a relevant excluded person. The second is the respondent being “satisfied” that the decision to refuse the application is justified on the grounds of public security and public policy. The decision must be in accordance with regulation 27 of the 2016 Regulations and measures taken on grounds of public security and public policy must be founded exclusively on the personal conduct of the individual concerned. The respondent is therefore required to conduct a specific and individualised proportionality assessment, directed at the interests underlying the concept of public policy.
102. Ms Anderson accepted that in this matter the panel’s assessment is not confined to a review of the respondent’s decision. We are to ask ourselves does the refusal comply with the requirements of proportionality? When assessing proportionality, an intensive merits-based and relative context assessment is undertaken applying those factors identified in regulation 27 of the 2016 Regulations.
103. Our assessment of proportionality engages discrete, sequential elements. Firstly, consideration is given to the refusal of a particular form of leave relying on Union Treaty rights. Then proportionality in principle is assessed. If the respondent satisfies the burden placed upon her a mandatory individual assessment is to be undertaken.
Public security
104. Public security has a content distinct from that of public policy, being interpreted by the CJEU in Case C-423/98 Albore [2002] 3 CMLR 10, at para. 18, as covering both internal and external security.
105. In proceeding with our assessment, we have reminded ourselves of the fundamental interests of society set out in Schedule 1 to the 2016 Regulations. These interests weigh in favour of the respondent.
106. We address this issue in short terms. It was not the respondent’s contention before us that this is a matter where the appellant’s previous conduct by itself threatens public security such that it represents a genuine, present and sufficiently serious threat affecting one of the fundamentals interests of society. On the facts arising, we agree that the respondent was correct to adopt this approach.
107. In his judgment of 2021, Upper Tribunal Judge Blundell considered at the time that there was no suggestion that the appellant posed any risk to national security, or of any future criminality. There is no evidence before us that this conclusion no longer remains reliable. The respondent comes nowhere close to establishing that the appellant poses a threat to the fundamental issues of society in respect of present risk of serious criminal offending. Her conclusion as to refusal being justified on grounds of public security is not established and consequently is not proportionate in principle.
Public policy
108. Whilst public policy is related to the prevention of disturbances to social order, the CJEU confirmed in Case 30/77 Bouchereau [1978] QB 732 that the concept of public policy can extend beyond reasons given by a State relating to some threatened breach of the public peace, order or security. The Court of Appeal said in Secretary of State for the Home Department v Robinson [2018] EWCA Civ 85, [2018] Imm AR 892, at para 71, that the required “threat” is not a threat to the public, but a threat to the requirements of public policy. This is a broader concept.
109. For measures founded on public policy to be justified, they must be based exclusively on the personal conduct of the individual concerned. The concept of public policy presupposes the existence of a genuine and sufficiently serious threat to the requirements of public policy affecting one of the fundamental interests of society.
110. The circumstances justifying recourse to the concept of public policy may vary from one Member State to another and from one period to another. The Member States enjoy an area of discretion within the limits imposed by the Treaties. No scales of value are imposed upon the Member States for assessing conduct contrary to public policy. In Joined Cases C-482/01 and C-493/01 Orfanopolous and Oliveri v Land Baden-Wurttemberg [2025] 1 CMLR 18 the CJEU confirmed that because the principle of freedom of movement must be given a broad definition any derogations from it must be interpreted strictly.
111. In respect of the public policy ground, the appellant accepts that he is a relevant excluded person. The respondent accordingly succeeds on the first requirement of paragraph EU16(d).
112. Turning to the second requirement, the respondent relies upon two separate reasons to justify her decision on the ground of public policy. The first is that if the appellant is a Cypriot national, which we have found, it was not disproportionate to refuse his EU Settlement Scheme application since it relies on abuse of rights and/or where there has been no genuine exercise of free movement form Cyprus to the United Kingdom. Any harm to Union rights is illusory or negligible, and in any event Union law weighs in favour of refusal as proportionate and necessary to prevent misuse of Union rights.
113. The second reason is that the United Kingdom should not be a haven for persons who are excluded individuals under article 1F. The public interest underpinning this policy is identified as the United Kingdom preserving its international standing in being seen to uphold international law alongside foreign and domestic policy considerations such as public protection.
114. In undertaking our assessment, we place in favour of the respondent her reliance upon the fundamental interests of society as identified at paragraph 7 (a-c), (f) to Schedule 1 of the 2016 Regulations.
Proportionate in principle – misuse of Union rights?
115. Following the judgment in the Malta case, the principle of mutual recognition continues to apply under Union law, and the Member States must unconditionally accept citizenship granted by other Member States.
116. We remind ourselves that it is not possible for a Member State to identify from a passport issued by another Member State that its bearer’s nationality was secured by a transactional CBI scheme. Nor does a citizen of a Member State who secured nationality through a transactional CBI scheme enjoy a lesser form of both their Union citizenship and their citizenship of the Member State.
117. We accept that the judgment in the Malta case does open the possibility in Union law for another Member State to deny on public policy grounds the derived rights that are guaranteed by Union citizenship in the Treaties namely free movement and residence rights, as well as equal treatment for Union citizens and their family members, on the basis that the administrative system for granting national citizenship breaches Union law. This must be so as the power to naturalise was exercised in a way that was manifestly incompatible with the very nature of Union citizenship. Consideration of such denial would properly follow the existing requirement in Union law, established in matters where nationality is withdrawn, of a proportionality review: see in respect of withdrawal Joined Cases C-684/22 to C-686/22 Stadt Duisburg (Loss of German nationality) [EU:C:2024:345], at para. 42.
118. On behalf of the appellant Ms Saifolahi contended that there was insufficient evidence before the panel as to the technical regime establishing and underpinning the Programme to permit us to conclude that the grant of Cypriot nationality to the appellant breached the Union requirements of solidarity and good faith. We recognise her concern that care must be taken not to apply what has been decided on a macro level to Malta, and so not in relation to Cyprus, to an individual Cypriot national without careful analysis of his personal facts.
119. On 20 October 2020, the Commission brought infraction proceedings against Cyprus for its Programme. This was the same day as infraction proceedings were brought against Malta. Cyprus did not seek to defend the Programme and stopped receiving new applications on 1 November 2020. The Commission sent a reasoned opinion to Cyprus on 9 June 2021 in respect of the continued processing of pending applications under the defunct scheme.
120. The appellant has no claim to Cypriot nationality on the grounds of ius soli or ius sanguinis as permitted under Cypriot law. He did not have to take a language test and was not required to live or work in the country during the time of his application. He confirmed before us that he did not reside in Cyprus before securing Cypriot citizenship. Indeed, having left his application to his lawyers, save for signing relevant documents, he remained in the United Kingdom throughout. The Cypriot authorities agreed to his biometric registration being conducted in this country and not in Cyprus consequent to self-identified health concerns. He accepted that he was required to purchase property under the CBI scheme and he bought four. We consider that it was primarily through these purchases that he was connected to Cyprus.
121. The appellant’s evidence satisfies us to the civil standard that the now defunct Programme established by Cyprus exhibited the same commercialisation of nationality through a purely transactional relationship as that found in the Maltese scheme, and so was incompatible with the Union requirements of solidarity and good faith from the outset as articulated by the CJEU.
122. However, we acknowledge that questions of legal protection and legal certainty arise from the judgment in the Malta case.
123. The respondent submits that the appellant engaged in an abuse of Union rights. Though open to the Commission to have raised such abuse before the CJEU in the Malta case, it did not do so and consequently we can properly proceed on the basis that the Commission did not consider abuse of Union rights to arise at the macro level. We further observe that the CJEU did not address abuse of Union rights ex officio in its judgment. We therefore conclude that abuse of Union rights is not established in respect of the appellant at an individualised level.
124. The Programme was lawful under Cypriot law at the date of the appellant’s application for citizenship as well as at its conclusion. The Commission brought infraction proceedings after the appellant was naturalised. We acknowledge Ms Anderson’s reliance upon a press release issued in respect of a report of the Commission in January 2019 relating to various CBI schemes in Bulgaria, Cyprus, and Malta. Concerns were identified, but the press release records, “the Commission will monitor wider issues of compliance with EU law raised by investor citizenship and residence schemes and it will take necessary action as appropriate”. We do not consider this press release to be clear in terms as to the Programme established by Cyprus not abiding by Union law to establish that the appellant and his lawyers could only be but aware from this date that it manifestly disregarded the requirements of solidarity and good faith.
125. We are satisfied that the appellant was fully aware that he was engaged in a purely transactional naturalisation application because of the steps he was, and was not, required to undertake. He had no familial or ancestral links with Cyprus in 2019. He did not reside there. The primary benefit to the appellant of the transactional CBI was from the outset, and continues to be, its positive impact on his life in the United Kingdom through enjoying Union citizenship. We observe the respondent’s concern that the appellant has not genuinely exercised free movement rights, but this is not the true position. He enjoys Union citizenship and its attendant derivative rights as a matter of Union law. Those rights are not illusory.
126. We remind ourselves that measures taken on grounds of public policy must be based exclusively on personal conduct and we again observe that the burden rests upon the respondent. The appellant instructed lawyers to aid him and could properly rely upon their acting in accordance with both Cypriot law and attendant professional conduct requirements. He secured his new nationality over a year before the Commission brought infraction proceedings.
127. On careful reflection, we conclude that engagement in a transactional citizenship by investment scheme at a time when both the Member State and those advising the appellant considered it lawful is not by itself sufficient to establish the required personal conduct to justify refusal on public policy grounds.
128. This is not a matter where the respondent has alleged that the appellant misled the Cypriot authorities during his nationality application. It is not part of the respondent’s case, for example, that the appellant was required to address whether he had previously been excluded from Refugee Convention protection under article 1F and was not frank in his response. Observing that the burden rests upon the respondent, we conclude on the evidence before that with the assistance of his lawyers the appellant appropriately complied with all requirements of the application process.
129. In the circumstances, we find that the respondent has not met the requirements of proportionality in principle in respect of the appellant’s securing of Cypriot and Union citizenship. She has not established that the measures exercised under paragraph EU16(d) are proportionate in respect of the appellant’s personal conduct.
Proportionate in principle – Article 1F(b) of the Refugee Convention
130. The appellant accepts that for the purposes of regulation 27 he is an excluded person. He reminded us through Ms Saifolahi that past conduct can only be taken into account insofar as it provides evidence of personal conduct constituting a “present” threat to the requirements of public policy. Whilst this requirement implies that the person concerned has a propensity to act in the same way in the future, this need not be so in every case. The CJEU confirmed in Case 30/77 R v Bouchereau (Pierre Roger) that certain conduct can in itself threaten public policy such as to justify exclusion on the basis that it represents a genuine, present and sufficiently serious threat affecting one of the fundamental interests of society.
131. The CJEU said in Joined Cases C-331/16 and C-366/16 K v Staatssecretaris van Veiligheid en Justitie, HF v Belgische Staat that a previous exclusion from refugee protection on the basis of article 1F of the Refugee Convention does not by itself equate to a sufficiently serious threat by mere presence on the territory of a host Member State, and the particulars of the case must properly be placed in the proportionality assessment. Consideration can be given to the findings of fact in the article 1F decision and the factors on which that decision had been based, particularly the nature and gravity of the crimes or acts alleged to have committed, the degree of individual involvement in them, whether there were any grounds for excluding criminal liability, and whether or not there was a conviction. The overall assessment also has to take account of the time that has elapsed since the date when the crimes or acts were allegedly committed and the subsequent conduct of that individual, particularly in relation to whether that conduct revealed the persistence of a disposition hostile to the fundamental values enshrined in article 1 of the TEU. In accordance with the principle of proportionality, the protection of the fundamental interest of society at issue must be weighed against the interests of the individual concerned in the exercise of their right to freedom of movement and residence as a Union citizen.
132. Ms Anderson was correct to remind us that the respondent’s challenged decision was not one directed to exclusion, nor is it one where the respondent concluded that no form of leave should ever be granted to an excluded person on the basis of any EEA connection. The challenged decision is solely concerned as to whether pre-settled leave under the EU Settlement Scheme should be granted on the circumstances known at the time of the appellant’s application. Whilst this does not reduce the validity of the guidance provided by relevant judgments, it informs the proportionality assessment.
133. The respondent submitted that whilst the decision cannot be read as starting the “scales” at a very high level in her favour, a refusal would normally follow in respect of an excluded person unless there are grounds establishing it to be disproportionate. Therefore, any attempt to nuance abstracts from jurisprudence relating to other contexts that would, by consequence, change the requisite test and be erroneous in law. We do not read “normally” into “may” which is to be found in the introductory first sentence of paragraph EU16. That the respondent is required to justify her decision “on the grounds of public policy, public security or public health in accordance with regulation 27 of the EEA Regulations” does not presuppose a starting point of refusal and then working backwards in light of relevant circumstances. Our conclusion is consistent with the CJEU’s interpretation of article 27(2) of the Citizen’s Rights Directive in Joined Cases C-331/16 and C-366/16 K v Staatssecretaris van Veiligheid en Justitie, HF v Belgische Staat, at [65] to [67]. The proportionality assessment is a bespoke one, with paragraph EU16(d) and, through its application, regulation 27 identifying factors to be considered.
134. Ms Saifolahi submitted that the appellant acknowledges his actions were serious, but they cannot be categorised as being of a seriousness akin to crimes against humanity. We do not agree with Ms Saifolahi’s effort to parse “serious” by the artificial creation of increasing levels of seriousness through comparison with those few criminal offences said to be at the extreme end of the scale. As a matter of principle, each State has some discretion under article 1F(b) of the Refugee Convention to determine whether the criminal character of the person applying for refugee status outweighs his or her character as a bona fide refugee. Any national standard must come within the framework of international law. The appellant was found to have committed a serious non-political crime following individual assessment in circumstances where the application of the bar upon international protection was interpreted restrictively. Consequently, the seriousness of the criminal act committed by the appellant was found to meet the requirements of the bar considering the nature of the act, the harm inflicted, and that most jurisdictions would consider it a serious crime.
135. Weight is properly to be placed upon the United Kingdom’s practice to uphold international law and consequently for its policies in respect of foreign nationals residing in this country to adhere to such practice. These are important public policy concerns that are consistent with the fundamental interests of society. Before us, the respondent detailed her policy to deter migration by excluded individuals and the application of this policy is founded, in part, by not allowing such persons to settle in this country. The respondent has been clear, over time, by application of her Restrictive Leave policy to the appellant that he is only permitted to remain in this country because of the recognised risk to his protected article 3 rights if he were to return to Russia.
136. We observe that the appellant continues to refute that he was ultimately responsible for siphoning money from the company, both for his own benefit and for the benefit of others. Whilst his position remains that he felt compelled to undertake his acts at the direction of others, we proceed on the judicial findings of fact made in his asylum appeal. He was clearly aware of what he was being asked to do which was to engage in theft on a very large scale and he was clearly willing to take his share of the proceeds. His involvement was an essential component of the criminal enterprise through his role of diverting US$35 million from his company in breach of his fiduciary duty. He undoubtedly held an important position within a group engaged in corrupt financial practices on a significant scale. We consider that the appellant continues to diminish his role in the serious non-political crime in which he engaged over several months. This fact lessens the weight that we can properly place upon the appellant’s submission that his actions occurred within a specific social and historical context. We find that the appellant has not truly engaged with his historic criminality before us, though we have accepted that he does not pose a present threat of serious criminal offending.
137. The appellant relies on the actions underpinning his exclusion from the Refugee Convention having been conducted over two decades ago, with no subsequent criminal conduct being relied upon by the respondent. As confirmed by the CJEU and previously addressed by us, those acts are to be placed in our assessment, but they are not determinative. We acknowledge the appellant’s criminal activity over twenty years ago aided persons who were elite in the Russian State. The respondent’s “Exclusion from the UK” guidance (updated 11 November 2025) recognises that in certain circumstances, the United Kingdom may be left vulnerable to allegations of hypocrisy for welcoming persons who have aided the elite of the Russian State or have acted as their tools of influence. We do not consider the appellant to fall into this category of person. He remains a politically exposed person unable to safely return to Russia.
138. Again, we properly observe that that measures taken on grounds of public policy must be based exclusively on personal conduct. We were not asked by the respondent to conclude that the nature and substance of the appellant’s criminal activity in 2002 was such that it alone threatens public policy such as to justify the refusal of pre-settled status. We observe that the appellant has been pro-social over the last two decades, successfully engaged in self-employment as a businessman, and lives with his family in this country. He has accumulated no criminal convictions. We have found, in line with Upper Tribunal Judge Blundell, that the appellant does not pose any risk to national security, or of any future criminality. He has travelled in and out of this country without hindrance in recent times.
139. Having holistically assessing the evidence in this matter, we find that the appellant’s personal conduct is not such at the present time that it would be a breach of the United Kingdom’s international obligations, and undermine the country’s standing, for him to secure status under the EU Settlement Scheme. The evidence underpinning our conclusion as to his present personal conduct is of significant strength and does not come close to revealing a persistent disposition hostile to the fundamental issues of United Kingdom society.
140. We conclude that the respondent has not met the burden placed upon her of justifying the decision that the appellant represents a genuine, present and sufficiently serious threat affecting public policy requirements. In reaching our conclusion we have weighed the protection of the fundamental interest of society as addressed by the respondent against the interests of the appellant and the exercise of his right to freedom of movement and residence as a Union citizen.
141. Consequently, the respondent has not established that the decision to refuse pre-settled status under EU16(d) is proportionate in principle and justified on the ground of public policy.
142. Having reached our conclusion, we are not required to proceed and consider mitigating circumstances. We allow the appellant’s appeal in respect of the respondent’s decision to refuse him status under the applicable residence scheme.
Withdrawal Agreement appeal
143. The appellant is successful in his residence scheme appeal and so we do not consider it necessary to decide his Withdrawal Agreement appeal. We observe that Ms Saifolahi conceded on behalf of the appellant in her submissions that upon the respondent accepting that we were not confined to a review of the residence scheme appeal, our decision on the Withdrawal Agreement appeal would be expected to be consistent with the residence scheme appeal by virtue of the test involved when invoking the requirements of the Citizens’ Rights Directive as incorporated domestically.
Anonymity Order
144. The appellant has enjoyed anonymity over many years in various proceedings before the Asylum and Immigration Tribunal, the First-tier Tribunal, and this Tribunal.
145. By an order issued by this Tribunal on 6 February 2025, anonymity was granted not only to the appellant but also to certain close members of his family residing in this country. Consideration was given to rule 14 of the 2008 Procedure Rules concerned with anonymity, Guidance Note 2022 No. 2: ‘Anonymity Orders and Hearings in Private’, the four-stage test explained by Lord Steyn in Re S (A Child) [2004] UKHL 47, [2005] 1 AC 593, at para. 17, and the well-known dictum of Lord Rodger in Re Guardian News and Media Ltd [2010] UKSC 1, [2010] 2 AC 697 where he explained why it is so important for the media to be allowed to name individuals who are parties to proceedings. Consideration was given to the general principles set out by Nicklin J in PMC (a child by his mother and litigation friend FLR) v A Local Health Board [2024] EWHC 2969 (KB), at paras. 26 to 44, and the consideration of the requirements of open justice by the Court of Appeal in Tickle and Another v The BBC and Others [2025] EWCA Civ 42, [2025] 2 WLR 714.
146. We have no reason to conclude that the adverse interest of the Russian authorities has abated being mindful that the respondent continues to accept that the appellant is at risk of treatment breaching article 3 ECHR if he were to return to Russia at the present time. We accept that the appellant remains a politically exposed person.
147. We consider that the non-disclosure of the appellant’s identity remains necessary to secure the proper administration of justice and to protect the appellant’s interests. Whilst acknowledging the starting point is open justice, derogation may, as in this matter, be justified on two principal grounds: maintenance of the administration of justice and harm to other legitimate interests. Whilst the threshold is a high one, we accept when concluding that lifting the existing anonymity order would be a disproportionate interference with the appellant’s rights under article 8 ECHR that there is a real risk to his physical integrity consequent to publicity that may follow if the order were lifted. In the circumstances, we are satisfied that his protected article 8 rights continue to outweigh the right of the public to know his identity as a party to these proceedings, such right being protected by article 10 ECHR.
Notice of Decision
148. By a decision of the Upper Tribunal sent to the parties on 6 February 2025, the decision of the First-tier Tribunal promulgated on 2 February 2024 was confirmed in respect of the respondent’s decision under paragraph EU16(a) of Appendix EU to the Immigration Rules.
149. By the same decision of the Upper Tribunal, the First-tier Tribunal’s decision was set aside in respect of the respondent’s decision to refuse the appellant’s application under paragraph EU16(d) of Appendix EU.
150. The decision in respect of paragraph EU16(d) of Appendix EU is remade. The appellant’s appeal is allowed.
151. An anonymity order is made.


D O’Callaghan
Judge of the Upper Tribunal
Immigration and Asylum Chamber
6 October 2026