Tribunal decisions

The decision

IN THE UPPER TRIBUNAL
IMMIGRATION AND ASYLUM CHAMBER
Case No: UI-2024-001711
First-tier Tribunal No: HU/55406/2023

THE IMMIGRATION ACTS

Decision & Reasons Issued:
19th May 2025

Before
UPPER TRIBUNAL JUDGE NORTON-TAYLOR

Between
KEWIN MILOSZ GRABOWSKI
(aka KEVIN KOSCIECHA)
(NO ANONYMITY ORDER MADE)
Appellant
and

SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the appellant: Mr L Youssefian, Counsel, instructed by TMC Solicitors
For the respondent: Ms S-A Nwachuku, Senior Presenting Officer

Heard at Field House on 6 May 2025

DECISION AND REASONS

Introduction
1. This is the re-making of the decision in the appellant’s appeal against the respondent’s decision of 9 April 2023, refusing to revoke a deportation order made on 20 March 2014, pursuant to regulation 19(3)(b) of the Immigration (European Economic Area) Regulations 2006 ("the 2006 Regulations").

2. The appellant is a Polish national, born in 1993 and currently residing in that country. He claims to have originally arrived in United Kingdom in July 2004 (aged 11) to live with his older sister following the death of his mother in Poland (his father had never been part of his life). On 8 November 2011 (aged 18) he was convicted of robbery and false imprisonment and sentenced to 6 years’ custody in a Young Offenders’ Institution. Following release, he was deported to Poland on 6 May 2014. He re-entered the United Kingdom in July 2015, using a passport in his mother’s maiden name of Kosciecha (and spelling his first name as Kevin). He entered into a relationship with PM, a British citizen. The couple had a child, IM, born in March 2017. IM is also British. It appears as though on 17 April 2021, the appellant obtained settled status under the EUSS (I have not seen any documents relating to this). It is said that this was done by using a false representations.

3. On 11 July 2022, the appellant left the United Kingdom to visit Poland. He attempted to re-enter this country through France on 16 July 2022, using a passport in the name of Kewin Milosz Grabowski, but was refused leave to enter on the basis that he was the subject of an extant deportation order and that he had dishonestly attempted to re-enter in breach of it. The appellant was returned to Poland and has resided there ever since.

4. On 3 October 2022, the appellant’s representative submitted an application for the revocation of the deportation order. In summary, the application asserted that the appellant had changed his life since the index offences and had established strong ties in United Kingdom between 2015 and July 2022. It was said that the appellant had a good employment record in this country, together with a strong relationship with PM and IM. No further offences had been committed since 2011.

5. The respondent accepted the application as having been made pursuant to regulation 34 of the Immigration (European Economic Area) Regulations 2016 ("the 2016 Regulations"), as saved and modified following the United Kingdom’s exit from the European Union. For present purposes, this provides as follows:

34
(1) …

(2) A deportation order remains in force -
(a) until the order is revoked under this regulation; or
(b) for the period specified in the order.

(3) A person who is subject to a deportation… order made on the grounds of public policy, public security or public health in accordance with regulation 27 may only apply to the Secretary of State to have it revoked on the basis that there has been a material change in the circumstances that justified the making of the order.

(4) An application under paragraph (3) must set out the material change in circumstances relied upon by the applicant and may only be made whilst the applicant is outside the United Kingdom.

(5) On receipt of an application under paragraph (3), the Secretary of State must revoke the order if the Secretary of State considers that the criteria for making such an order are no longer satisfied.

(6) …

6. The respondent concluded that the deportation order should not be revoked. On the evidence, the respondent concluded that the criteria for making the deportation order in the first place still applied. In 2012, the appellant had been assessed as posing a high risk of harm to the public and a medium risk of harm to children, together with a medium risk of re-offending. The particular circumstances of the offending were considered (I will deal these in detail, below) and it was concluded that there still existed a sufficiently serious threat. The respondent also considered that the maintenance of the deportation order was proportionate.

7. Article 8 ECHR was then considered in detail, with the conclusion that the respondent’s decision was not disproportionate. Whilst the decision letter itself does not refer in terms to the refusal of a human rights claim, the substance of the decision is such that Ms Nwachuku accepted that it constituted such a refusal.

The decision of the First-tier Tribunal
8. The appellant appealed to the First-tier Tribunal. He did not give evidence from Poland (no application had been made for this to occur), although the appellant’s sisters and PM did attend. Having considered the evidence, which the judge found to be entirely credible, he concluded that the appellant no longer represented a genuine, present and sufficiently serious threat to the fundamental interests of society. In addition, the judge found that the respondent’s decision was disproportionate. These two conclusions were in substance based on the following factors: the appellant’s age at the time of the offending; the passage of time; the absence of any re-offending; the appellant’s relationship with PM and IM (a “very close family”, combined with the fact that PM is disabled); the appellant’s employment in the United Kingdom; the cessation of drug use; and the appellant’s obligation to support his family at that time. The appeal was allowed on “EEA grounds”.

9. The judge did not appear to consider Article 8 and there was no outcome decision in respect of that provision.

The error of law proceedings
10. The respondent was granted permission to appeal on two grounds: first, that the judge to adequately address the appellant’s unlawful re-entry into United Kingdom 2015 and whether his offending was so serious as to justify his continued exclusion from this country; second, that the judge failed to conduct an adequate proportionality assessment, in particular whether the appellant could be separated from PM and IM and what his circumstances in Poland were.

11. By a decision issued on 14 February 2025, Deputy Upper Tribunal Chamberlain (now Hobbs) concluded that the first aspect of ground 1 and the entirety of ground 2 were made out. These were material errors of law and justified the First-tier Tribunal’s decision being set aside. She noted that there had been “no challenge to the evidence”, although there were no preserved findings: [24]. Judge Hobbs did not accept that the First-tier Tribunal had erred in respect of what is commonly referred to as the Bouchereau exception: R v Pierre Bouchereau [1977] EUECJ R-30/77 (I will address this in greater detail, below).

12. The appeal was retained in the Upper Tribunal listed for a resumed hearing. Judge Hobbs was unable to conduct the hearing and so a transfer order was made in order that I could.

Jurisdiction
13. No jurisdictional points have arisen in proceedings thus far. However, I was conscious that an absence of consideration, or indeed a consensus between the parties, did not preclude the existence of any potential difficulties. I wanted to ensure that I had jurisdiction to consider the appeal and the grounds being put forward on the appellant’s behalf.

14. I am grateful to Mr Youssefian for assisting me in this regard and I record here that the respondent did not dispute any aspect of his analysis. I am satisfied that (a) the appellant had a right of appeal against the respondent’s decision of 9 April 2023 and (b) that he is able to rely on two grounds: first, that the decision is contrary to the 2016 Regulations and breaches EU law rights; second, that the decision violates Article 8 rights. This is based on the following.

15. In respect of the 2016 Regulations, the relevant legislative provisions are contained in Schedule 3 of the Immigration and Social Security Co-ordination (EU Withdrawal) Act 2020 (Consequential, Saving, Transitional and Transitory Provisions)(EU Exit) Regulations 2020 (SI 2020/1309). Paragraph 2(1) states that a deportation order made or treated as having been made by virtue of the 2016 Regulations continues to apply for the period specified in the order or until revoked (this includes orders made under the 2006 Regulations). Paragraph 2(5)(b) confirmed that regulation 34(3)-(6) of the 2016 Regulations continue to apply, with modifications.

16. Paragraph 5(1)(d) of Schedule 3 confirms that appeal rights continue to have effect in respect of an EEA decision within the meaning of the 2016 Regulations. The decision now under appeal is an EEA decision.

17. Paragraph 6(1) of Schedule 3 confirms that regulations 36 and 37 of the 2016 Regulations continue to apply. Paragraph 6(1)(bb) confirms that in relation to an appeal such as the present, the ground of appeal available is that the decision would be in effect be contrary to the 2016 Regulations.

18. In relation to Article 8, and as mentioned previously, Ms Nwachuku accepted that the decision under appeal included the refusal of human rights claim. That being so, the appellant is also able to rely on the ground of appeal under section 84(2) of the 2002 Act, namely that the respondent’s decision is unlawful under section 6 of the Human Rights Act 1998.

The issues
19. Following a detailed preliminary discussion at the resumed hearing, the following issues are in play:

(a) Has the appellant demonstrated that there has been a material change in the circumstances which justified making the deportation order in 2014?

(b) Did the appellant acquire a permanent right of residence between 2004 and 2009?

(c) If he did, has this subsequently been lost?

(d) In light of the above, is the appellant entitled to have his case considered according to the lower or middle level of protection under regulation 27 of the 2016 Regulations?

(e) Has the respondent demonstrated that the appellant remains a sufficiently serious threat to the fundamental interests of society?

(f) Can the respondent rely on the Bouchereau exception in order to establish threat (Mr Youssefian accepted that the respondent was permitted to raise this argument notwithstanding the failure to have done so before the First-tier Tribunal)?

(g) If the threat is not established, should the appellant to succeed in his appeal?

(h) If the threat is established, is the respondent’s decision nonetheless disproportionate, with reference to EU law?

(i) If the appellant fails in respect of the 2016 Regulations, can he nonetheless succeed with reference to Article 8?

The evidence
20. The documentary evidence is contained in the appellant’s bundle, indexed and paginated 1-144 (146 pages in the PDF).

21. There has never been any application for the appellant to give evidence from Poland, as they might have been. The appellant’s sister did not attend the resumed hearing. Mr Youssefian informed me that she had to attend a medical appointment, but that his instructions were to proceed. That means that none of the updated evidence was tested by way of cross-examination.

22. Within the appellant’s bundle are updated witness statements for the appellant and his sister, both dated 28 April 2025. Three notable matters are set out in this evidence. First, the appellant confirms that his relationship with PM has broken down, although he states that he remains in contact with IM through video and telephone calls facilitated by his sister. He states that the sister visits IM “from time to time” so that this form of contact can be arranged. Second, the appellant asserts that he is homeless in Poland and that he is not able to work as he has no Polish paperwork. Third, he asserts that he had never attempted to enter the United Kingdom illegally.

23. I will deal with these and all other relevant evidential matters later in my decision.

24. There was no application to adjourn and the hearing proceeded by way of submissions only.

The parties’ submissions
25. Ms Nwachuku relied on the decision letter and the skeleton argument prepared by another Senior Presenting Officer (which very much focused on the Bouchereau exception). The ISW report from 2022 had not been updated and did not take account of the recent breakdown of the appellant’s relationship with PM. IM would have adapted to life without the appellant. The appellant has not been playing a leading role in IM’s life over the last 2 ½ years. The present form of contact with IM could be maintained in Poland and would be no different if he was in the United Kingdom. There was no updated evidence from PM as to the nature of any future contact. It was implausible that the appellant was homeless in Poland: he was a national of the country and it was unclear why he was unable to work due to a lack of “paperwork”. The respondent did not accept that the appellant had ever acquired permanent residence. No additional submissions were made in respect of the Bouchereau exception.

26. Mr Youssefian relied on an amended skeleton argument prepared by another Counsel. The passage of time and lack of re-offending was powerful evidence going to the question of whether the was a propensity to re-offend. The appellant had found work when last in the United Kingdom and had created a family-based life for himself. There had been a “complete change” in his life and he had been rehabilitated. The respondent had failed to adduce evidence of dishonesty as to the 2015 re-entry, the April 2021 granting of settled status under the EUSS, or the attempted re-entry in July 2022. The re-entry in 2015 had been in breach of the deportation order, but that should not attract great weight. Handwritten notes in the bundle which dated that the appellant had entered the United Kingdom “illegally” did not prove dishonesty on his part. Even if there had been dishonesty, if the appellant were permitted to re-enter the United Kingdom now he would never again need to do so in breach of a deportation order because it would have been revoked. The consequences of his exclusion from United Kingdom since July 2022 had been significant: his relationship with PM had broken down and his relationship with IM was now very different to what it was.

27. Mr Youssefian submitted that the appellant’s offending was very serious, but did not reach the high threshold required by the Bouchereau exception. He relied on, amongst other matters, the passage of time, the appellant’s age at the time, the absence of weapons, sexual assault, or physical harm to the child. He accepted that actual media reporting was not necessary in order to demonstrate deep public revulsion.

28. On the level of protection issue, reliance was placed on a secondary school letter which stated that the appellant had attended the institution between September 2004 and September 2009. No further submissions were made as to why that of itself meant that the appellant had been a qualifying person under the 2006 Regulations. There was no need to have had complaints of sickness insurance beyond being affiliated to the NHS.

29. When I raised the issue of whether permanent residence (if acquired at all) might have been lost through the appellant’s absence from United Kingdom, Mr Youssefian submitted that I should look back only from the date of the respondent’s 2023 decision, not the date of hearing.

30. The issue of proportionality was then addressed. It was submitted that the best interests of IM were for the appellant to be in his life. There has been a change in the appellant’s circumstances, but there was still a form of contact between the two. The effect of not having the appellant in his life would be adverse to IM. The appellant’s lengthy residence in the United Kingdom over time was relevant, as was his EU citizenship. There was evidence of very poor circumstances in Poland. There had been no re-offending since 2011.

31. Mr Youssefian acknowledged that it would be difficult for the appellant to succeed under Article 8 if he was unable to succeed under the 2016 Regulations.

32. At the end of the hearing I reserved my decision.

Regulation 27 of the 2016 Regulations
33. The provision with which I am primarily concerned is regulation 27. Its contents are well-known, but I emphasise the following:

27(3) in cases where the individual has a permanent right of residence, the decision can only be justified on “serious grounds of public policy and public security”;

27(5)(a) the decision must comply with the principle of proportionality;

27(5)(b) the decision must be based exclusively on the personal conduct of the appellant;

27(5)(c) the personal conduct of the appellant must represent a “genuine, present and sufficiently serious threat” affecting one of the fundamental interests of society;

27(5)(d) matters isolated from the particular facts of the case and/or generalised considerations do not justify a decision to deport;

27(5)(e) a person’s criminal convictions do not in themselves justify the decision;

27(6) a wide variety of factors must be taken into account, including age, health, length of residence, and social and cultural integration;

27(8) public policy and public security requirements involve consideration of the fundamental interests of society, including in particular the considerations set out in Schedule 1 to the Regulations, to which I must have regard.

34. The burden of showing that there are “serious grounds of public policy and public security” (regulation 27(3)) and that the appellant represents a “genuine, present and sufficiently serious threat” (regulation 27(5)(c)) rests with the respondent: Arranz (EEA Regulations – deportation – test) [2017] UKUT 294 (IAC) (this aspect of the decision is not affected by what the Court of Appeal said in Robinson (Jamaica) v SSHD [2018] EWCA Civ 85, at [80]-[84], or the judgment of the Supreme Court in that case – [2020] UKSC 53).

35. General deterrence and/or public revulsion have no bearing on the existence of serious grounds, save in exceptional cases: SSHD v Straszewski [2015] EWCA Civ 1245, at [20].

36. The question of “serious grounds” in a permanent residence case is to be considered as a matter distinct from the assessment under regulation 27(5) of the 2016 Regulations: Kamki v SSHD [2017] EWCA Civ 1715, at [23]-[24].

37. The term “serious grounds” is not defined in the 2016 Regulations. As a matter of common sense, it represents on the one hand a higher threshold than if the individual did not have a permanent right of residence, whilst on the other something lesser than the imperative grounds required where an individual has 10 years’ continuous residence (including the acquisition of a permanent right of residence).

38. The specific fundamental interests of society relied on by the respondent in this case are those set out at paragraph 7(a), (b), (c), (d), (i) and (j) of Schedule 1 of the 2016 Regulations: see [12] of the respondent skeleton argument.

Has there been a material change in circumstances?
39. Although this is listed above as the first of the live issues and it underpins the appellant’s application for the revocation of the deportation order, it seems to me sensible to leave a conclusion on the question until after my assessment of the other issues because it represents an ultimate conclusion as to whether the respondent has made out a case.

Permanent residence and the appropriate level of protection under the 2016 Regulations
40. The respondent does not accept that the appellant ever acquired a permanent right of residence.

41. Mr Youssefian relies on what the appellant said about his history in United Kingdom, together with a single item of documentary evidence, namely a letter from the appellant’s secondary school in London, dated 11 October 2023, confirming that he was a student there from 6 September 2004 until 2 September 2009. Neither the authenticity nor the reliability of that letter has been challenged by the respondent.

42. I am satisfied that the evidence demonstrates that the appellant was in the United Kingdom as a full-time student in compulsory secondary education for the period stated in the letter.

43. It is obvious that he was in this country for an additional 4 days in addition to that period so as to make up the 5 years.

44. As recorded above, Mr Youssefian made no submissions as to the particular legal basis for the acquisition of permanent residence other than relying on the 5-year period itself. Ms Nwachuku did not submit that the undertaking of secondary school compulsory education precluded the appellant from being a “student”. I have not been referred to any authority which precludes an individual from having been a “student” during secondary school.

45. I should not be expected to have to conduct extensive researches into the case-law or other materials in order to reach a decision on a matter put forward by one party and disputed by the other. This is not necessarily a criticism of Mr Youssefian and Ms Nwachuku: they have both come to this case fairly late in the day. It really comes down to the need for better preparation by the party advancing the argument.

46. For the purposes of this case, I am prepared to accept that the appellant was a “student” within the meaning of the 2006 Regulations. There may be good arguments to the contrary, but none have been made to me.

47. It is more likely than not that the appellant was “affiliated” to the NHS during the period in question because he was, I find, “ordinarily resident”: VI v HMRC C- 247/20. He was residing in the United Kingdom as an EEA national and, at that time, an intention to settle in this country.

48. The respondent has said nothing about the appellant not being self-sufficient during the period in question.

49. In light of the above, I am prepared to accept that the appellant acquired a permanent right of residence by September 2009. Even if I was wrong about that, it would make no difference to the outcome of this appeal, given my conclusions on other relevant issues.

50. Regulation 15(3) of the 2016 Regulations provides that a permanent right of residence is lost through absence from United Kingdom for a period exceeding two years. The appellant has been out of the United Kingdom since July 2022, a period exceeding two years. Having said that, the decision under appeal was made in April 2023, less than two years after he was denied re-entry in July 2022. Previously, the appellant had been deported in May 2014 and had then re-entered in 2015, a period of less than two years.

51. Neither representative had considered in advance whether a permanent right of residence had been lost. Further, neither representative addressed me on whether regulation 15(4) had any bearing (a person satisfying regulation 15 “is not entitled to a right to permanent residence in the United Kingdom where [a deportation order has been made against them]”.

52. I conclude that the appellant’s permanent residence was lost as a result of his absence from the United Kingdom from July 2022 to date.

53. I am not prepared to accept Mr Youssefian’s analogy with the situation in which one considers whether an individual has accrued 10 years’ residence and is entitled to the highest level of protection. In that scenario, the issue is whether the individual accrued the 10 years’ residence or not, taken account of periods of imprisonment. It does not concern the question of whether a permanent right of residence, once acquired, is then lost by a period of absence from this country.

54. I acknowledge Mr Youssefian’s submission that the respondent could make a decision, deport an individual with a permanent right of residence, and then the length of the appellate process might be such that the right is then lost, which would be unfair on the individual concerned. However, regulation 15 says nothing about the period of absence of 2 years being calculated backwards from the date of decision. Further, to fix the date of calculation to the date of decision would run contrary to the obligation on tribunals to assess a case as at the date of hearing. It would also permit individuals to choose to leave this country after an adverse decision and spend as long as they wanted overseas without the risk of losing a previously-acquired permanent right of residence.

55. In the first instance, I conclude that the appellant is therefore only able to rely on the lowest level of protection under the 2016 Regulations.

56. Adopting a belt-and-braces approach, I will in any event address the issue of whether the respondent can show that there were “serious” grounds, as if the appellant has not lost his permanent right of residence and is entitled to the medium level of protection. This is in part because there is a respectable argument that the two-year absence calculation should be undertaken from the date of the decision under appeal backwards. If “serious grounds” can be demonstrated by the respondent, she is therefore able to also meet the lowest protection level threshold.

Serious grounds of public policy and public security
57. I remind myself of the matters set out at [34]-[37], above and direct myself accordingly.

58. For reasons set out below in respect of the Bouchereau exception, this is an exceptional case and I am satisfied that the respondent demonstrated that the decision under appeal was taken on “serious grounds of public policy and public security”.

59. The conduct relied on by the respondent relates to violent robbery (even without actual bodily harm having been inflicted) committed against vulnerable individuals in their own home, combined with a threat to kill a mother made within the hearing of a minor child. On a general level, offences involving robbery and what was in effect the invasion of a home are serious and self-evidently contrary to the need to protect the public and for law-abiding individuals to feel safe. Crimes against children are serious. In respect of the particular facts of the offences, they are, as will be seen, stark to say the very least and only reinforce level of seriousness connected to the grounds of public policy and public security.

60. On the alternative basis that the appellant is entitled to medium level of protection, the respondent has made out her case under regulation 27(3) of the 2016 Regulations.

The Bouchereau exception
61. Before turning to my analysis of the issue, I observe that the respondent has not acted with clarity or consistency over the course of time. Nothing was said about the Bouchereau exception in the decision letter or the pre-hearing review, despite there being a focus on the particular circumstances of the offending. Nor was the point raised before the First-tier Tribunal, as accepted by Judge Hobbs in her error of law decision at [17]-[18]. None of this reflects well on the respondent. Despite that, the appellant accepts that it is now a live issue at the re-making stage.

62. The Bouchereau exception originates from a judgment of the Court of Justice of the European Union: (R v Pierre Bouchereau [1977] EUECJ R-30/77). At [29]-[30], the Court concluded that:

“29. Although, in general, a finding that such a threat exists implies the existence in the individual concerned of a propensity to act in the same way in the future, it is possible that past conduct alone may constitute such a threat to the requirements of public policy.

30. It is for the authorities and, where appropriate, for the national courts, to consider that question in each individual case in the light of the particular legal position subject to Community law and of the fundamental nature of the principle of the free movement of persons.”

63. The exception can be described in the following way:

Normally, in cases under the Regulations the risk of harm to society that a person might represent cannot be based only on the fact that they were convicted in the past (see regulation 27(5)(e)). However, where the conviction was for a very serious offence, that conviction may be enough by itself to show that the person is a risk now.

64. The exception to the general rule will only apply in rare cases. The past offending must be very serious. There is no exhaustive list of what type of offence might engage the exception, although the domestic cases have referred to “the most heinous of crimes”, those with “very extreme” facts, are “repugnant to the public”, or have caused “deep public revulsion”, and stated that an example might include “grave offences of sexual abuse or violence against young children”: an overview of the case-law was provided by the Court of Appeal in SSHD v Robinson [2018] EWCA Civ 85 and, more recently, SSHD v George [2024] EWCA Civ 1192.

65. The courts in the United Kingdom have found that Bouchereau remains binding authority: Robinson, at [80].

66. The exception can apply to cases under the 2016 Regulations: George, at [18]-[22].

67. It is important to appreciate that the exception involves looking back to the offending; it is not concerned with the fact that an individual might not have committed any further offences since, or with fact that they might have subsequently established a law-abiding life in this country or another.

68. Conduct can be aggregated in order to show that the exception should apply: SSHD v Okafor [2024] EWCA Civ 23, at [38].

69. It is for the respondent to demonstrate that the exception applies.

70. For reasons which follow, I conclude that the appellant’s offences were so serious as to reach the very high threshold required by the Bouchereau exception. In addition, the appellant’s re-entry to the United Kingdom in 2015 can properly be aggregated to the appellant’s conduct for the purposes of assessing whether the exception applies. Yet further, the appellant’s attempted re-entry to United Kingdom in July 2022 can also be aggregated to his conduct. However, these two aggregated matters are not necessary elements in my conclusion that the exception does apply.

71. First, I remind myself of everything set out at [62]-[69], above.

72. Second, it is important to set out in detail the particular circumstances of the offending in question. I take the facts from the length the Sentencing Remarks of HHJ Pader, dated 21 November 2011 (“the Remarks”).

73. The appellant (then aged 18 years and 8 months) and two associates deliberately targeted the victims, a woman and her 11-year old son because (a) they were known to one of the perpetrators and (b) they were vulnerable. All three perpetrators were masked, which itself was “probably…very frightening for the child and possibly for his mother”. The perpetrators already had the child’s bicycle and attempted to deceive the victims by saying that it should not be left out in the corridor. When the front door was opened by the child, the three forced entry into the property, grabbed the mother, hit her, and grabbed her by the throat, causing her to pass out in front of her child.

74. The mother and child were tied up with parcel tape, which was also put over the eyes of the child. That was, according to the Remarks, “unnecessary cruelty” on the part of the perpetrators, given that they were already masked.

75. The mother was then threatened with death unless she revealed her PIN number. The child heard that threat. Having provided the number, tape was also put over the mother’s eyes. One perpetrator left the property and went to an ATM machine to withdraw money. Eventually, a number of items were stolen: the mother’s car; television; a laptop; and £1500 from the cashpoint.

76. In terms of the lasting effects of what had happened to them, both victims prepared impact statements. Each of them had been “badly affected”. The mother had to check all rooms in her flat every time she got home. She was unable to sleep alone, and her sister had to move in with her. The mother began suffering from epilepsy and could not sleep. It is said that “her life has changed completely…”. Matters were made worse by the fact that one of the perpetrators was in fact related to her. The mother was scared of “every little sound she heard” and was in constant fear of what might happen to her child.

77. Turning to the child, it is clear that he heard his mother’s screams during the episode and was “very frightened”. The child himself stated that he recalled one of the perpetrators (who was wearing a “red devil mask”) told he and his mother to be quiet”. The child stated that he was worried that the men might come back to the family home. The threat to kill his mother was not something “he is ever going to forget”. The Remarks state that, “It is clear from those [victim impact] statements that the impact of this case upon the two victims has been very severe indeed.”

78. Although no weapons were produced, there were “a number of other aggravating features”: the victims were targeted for their vulnerability; there was a family connection; a mother and young child as being a soft target; masks were used, “which would have been frightening for the victims”. The child is young age was “a seriously aggravating feature of this case”. There was a “serious” threat to kill the mother: it was intended to be so and was in fact taken seriously by the child.

79. The Remarks go on to state that, “Nobody can tell how long either the boy or his mother will be traumatised by what has happened but it is quite clear that that is what has happened to them at the moment, they don’t feel safe in their own home, it is difficult in peacetime to imagine something worse than that from an ordinary crime, even one that causes no physical injury as this did.” It appears as though the victims were intending to move house as a consequence of what had happened to them.

80. It is apparent that no meaningful remorse were shown by the perpetrators at the point of conviction and/or sentencing.

81. The Remarks describe the perpetrator’s behaviour as “shocking”.

82. What is set out above speaks for itself.

83. Third, I acknowledge that the appellant and other two perpetrators pleaded guilty and I take this into account. The Remarks describe as having represented a “slightly redeeming feature” for those who turn themselves into the police (I am prepared to accept that the appellant was one of those who did).

84. Fourth, it is a fact that no weapons had been produced and this is relied on by Mr Youssefian to show that the offences were not as serious as they might have been. Whilst he was entitled to make that submission, in the particular circumstances of this case I place little weight on it. The Remarks observed that the trauma caused to the victims “would probably not have been much different if [weapons] had been [produced].” Further, when considering a relevant authority on sentencing, the Remarks effectively saw no real distinction between the case in which a knife had been held to a victim and the present case.

85. Similarly, the fact that the offences did not involve sexual assault and/or actual physical violence towards the child is beside the point. Neither are requirements for the exception to apply. If those two factors had been present, it would only have further aggravated the seriousness of what happened.

86. In light of the above, an element of Mr Youssefian’s submissions on the exception was, in effect, that the offences could have been worse. It is of course true that they could have been worse, but that does not preclude the application of the exception. The question for me is whether the offences with which I am concerned were, on the facts, so serious as to reach the very demanding threshold, as set by the domestic authorities to which I have referred previously.

87. Fifth, there is no evidence before me that there had been media reporting of the appellant’s case at the time or thereafter (that may be because of the guilty plea). However, Mr Youssefian accepted this was not a necessary condition for the exception to apply. I agree. As a matter of principle, the yardstick of a case which would be regarded as “repugnant” to the public or has caused “deep public revulsion” cannot depend on the chance of it being picked up by the media and reported. Although such reporting may go to increase the level of revulsion on a wider basis, its absence is not of any real significance.

88. Sixth, I have taken account of the appellant’s age at the time of the offences, as did the Remarks. He was “only” 18, but was in fact on the way to turning 19. He was self-evidently not a minor. Nothing in the Remarks or elsewhere in the evidence indicates to any material extent that the appellant was especially immature, or had been pressurised into committing the offences. Whilst taking account of the factual differences, I have taken account of Bouchelkia v France [1997] ECHR 1. In that case, the individual had been convicted of aggravated rape, an offence committed when he was 17 years old. At [51], the European Court of Human Rights concluded that the individual’s age did not “in any way detract from the seriousness and gravity of such a crime.” Overall, I place some weight on the appellant’s age at the time, but it does not detract from the seriousness of the offences in any meaningful way.

89. Seventh, it is a fact that the offences were committed some 13½ years ago. This aspect of Mr Youssefian’s submissions carries what would appear to be somewhat greater weight. However, in my view the passage of time is more relevant to the question of the risk of re-offending under the normal assessment of threat, absent any application of the Bouchereau exception. This is because, by its nature, the exception looks back to the index offence and addresses its seriousness. The seriousness is, in a sense, fixed to the particular circumstances of the offence. It is difficult to see how the passage of time would of itself reduce the seriousness of the offence. Further, I do not accept the suggestion by Mr Youssefian that the passage of time could significantly alleviate deep public revulsion. On the facts of this case, such revulsion would be caused whether they were known of immediately following conviction or today.

90. Eighth, I acknowledge that there is no further evidence relating to any lasting impact on the victims of the appellant’s offences. This is hardly surprising given the passage of time and all other circumstances. I do not regard the absence of additional evidence as materially reducing the seriousness of the offences.

91. Bringing all of the above together, I conclude that the 2011 offences (including the consequent impact on the victims) were, on the particular facts, “very extreme”. I conclude that reasonable members of the public would undoubtedly regard the facts of the offences as being “repugnant” and that those facts would have caused (if known) “deep public revulsion”. The offences were, in my judgment, “heinous”.

92. As a result of the above, I am satisfied that the respondent has demonstrated that the Bouchereau exception applies and that the appellant represents a genuine, present, and sufficiently serious threat to the fundamental interests of society, pursuant to regulation 27(5)(c) of the 2016 Regulations.

93. I now turn to the re-entry issue. If the offences did not of themselves reach the very high threshold for the application of the Bouchereau exception, the aggregation of the appellant’s subsequent conduct would be sufficient for that to occur.

94. It is a fact that the appellant re-entered the United Kingdom a little after a year after he was deported. It is a fact that this was in breach of the deportation order. It is a fact that the appellant had changed his name from Kevin Kosciecha (the name in which the deportation order had been made) prior to the re-entry and came in on a passport in the new name of Kewin Milosz Grabowski (apparently, adopting his mother’s maiden surname).

95. For the reasons which follow, I am satisfied that the respondent has shown on the balance of probabilities that the appellant re-entered knowing that this was in breach of the deportation order and that he had changed his name, at least in part, to facilitate the unlawful re-entry into the United Kingdom.

96. First, I acknowledge the absence of evidence adduced by the respondent which might have been in her possession. There are, for example, no GCID records which might have cast light upon the issue at hand.

97. Second, alleging dishonesty is a serious matter and the finding that it has taken place should not be made lightly.

98. Third, dishonesty involves a two-stage process: first, there is the assessment of an individual’s state of mind at the relevant time and whether a belief was genuinely held; second, that state of mind as to their belief is assessed against the standards of ordinary decent people so as to determine whether the conduct was honest or dishonest: Ivey v Genting Casinos [2017] UKSC 67.

99. Fourth, whilst there was of course no cross-examination of the appellant in relation to dishonesty, the respondent has asserted throughout that the appellant has been dishonest in his conduct. In addition, the First-tier Tribunal did not address the issue of dishonesty in relation to the 2015 re-entry. In my view, the issue of dishonesty is live. Mr Youssefian did not argue that the respondent was in some way precluded from even raising the issue.

100. Fifth, it is inconceivable that the appellant was unaware that the deportation order had been made against him in 2014 and that he was deported to Poland on that basis. There is nothing to even remotely suggest that he was incapable of appreciating his situation at that point: in fact, he signed a disclaimer on 19 February 2014, confirming that he wished to waive the right of appeal against the decision to deport him. Further, the deportation order is quite clear on its face: the appellant was not permitted to return to the United Kingdom whilst the order remained in force. The absence of GCID records (whatever they might have contained, although it is unclear what they might have contained) does not prevent the respondent from relying on the indisputable facts surrounding the appellant’s deportation in May 2014, together with the powerful inference that the appellant understood his predicament when he arrived back in Poland and then took steps to facilitate his re-entry to this country.

101. Sixth, the handwritten statement from the appellant (which appears to be undated) concedes that he entered the United Kingdom “illegally”. The entry referred to can only have been that in 2015 because he never re-entered this country again; he was prevented from doing so in July 2022. Thus, the respondent is able to rely on this evidence as indicating that the appellant knew that what he was doing in 2015 was illegal. In other words, he knew that he was re-entering in breach of the deportation order made the previous year. The further inference which the respondent is able to rely on is that he had changed his name whilst in Poland in order to avoid being detected when re-entering in 2015 because he knew that he was pursuing an illegal course of action. I find his state of mind at the time to have been cognisant that what he was doing was illegal and in contravention of the deportation order.

102. I find that an ordinary decent person would undoubtedly regard the appellant’s conduct at that time as dishonest.

103. Seventh, I have no evidence relating to the grant of settled status in April 2021 other than what is said in the refusal of leave to enter decision, dated 16 July 2022. The respondent should reflect on her failure in this regard.

104. I am not prepared to make a finding of dishonesty in respect of this particular matter. I do, however, find that the grant must have been in the appellant’s new name and was made at the time when he was in fact subject to a deportation order. One might think that there is only one sensible conclusion to be drawn from this.

105. Eighth, I am satisfied that the respondent has demonstrated it to be more likely than not that the appellant attempted to dishonestly re-enter the United Kingdom in July 2022 following a short trip to Poland. Having regard to what I have already said, and in light of the refusal of leave to enter decision, dated 16 July 2022, I find that the appellant used his passport in the new name and that he dishonestly denied having be known by any other name.

106. Again, there is a lack of clear evidence from the respondent. However, the assertion made in that decision as to the denial of having been known by another name has not been repudiated by the appellant (at least, I have not been referred to any evidence on this). The assertion in the decision is entirely consistent with what the appellant did in 2015. I find that in July 2022 he in fact knew that he was still the subject to a deportation order and he knew that he had previously used a different name within the United Kingdom prior to his deportation in May 2014. I find that he did deny having been known by any other name and he did this with the intention of concealing his past, including the deportation order. I find that an ordinary decent person would undoubtedly have regarded that conduct as dishonest. I reject the assertion made by the appellant in his latest witness statement that he did not attempt to re-enter this country illegally. That evidence has not been tested and in any event it is inconsistent with the handwritten document and what is said in the decision letter.

107. The dishonest conduct is aggregated to the offending.

108. The respondent has demonstrated that the appellant represents a genuine, present, and sufficiently serious threat to the fundamental interests of society. This is so whether or not the appellant is entitled to the lowest or the medium levels of protection under the 2016 Regulations and whether or not he has been dishonest.

The relevant fundamental interests of society
109. By regulation 27(8) of the 2016 Regulations I must “have regard” to the considerations contained in Schedule 1. In this case, I remind myself that the specific considerations relied on by the respondent are those set out at paragraph 7(a), (b), (c), (d), (i), and (j).

110. The respondent is able to rely on paragraph 7(a). Whether or not the appellant was dishonest when re-entering United Kingdom in 2015, he did so in breach of the deportation order. He then attempted to repeat this in July 2022. This conduct relates to the abuse of immigration laws and/or maintaining the integrity and effectiveness of the immigration control system.

111. I not convinced that the refusal to revoke the deportation order engages the maintenance of public order under paragraph 7(b). Whilst for reasons previously set out, the appellant’s re-admittance to the United Kingdom would be likely to cause deep public revulsion, it is unlikely that there would be public order concerns.

112. The respondent is able to rely on paragraph 7(c) because the threat which I have found exists be relevant to the prevention of social harm, namely criminal conduct and the fear of being subjected to robbery and the invasion of private space.

113. Paragraph 7(d) has no application because the threat posed by the appellant has nothing to do with the evasion of taxes and duties.

114. I cannot see that paragraph 7(i) plays a significant part in this case. Although preventing offending does protect the rights and freedoms of others, there is no link to exploitation and trafficking.

115. Paragraph 7(j) is relevant because the threat is connected to the need to protect the public.

116. Paragraph 7(f) is not included in the respondent’s skeleton argument, although it is clearly relevant to this case. The respondent’s ability to exclude the appellant from this country is directly connected to the maintenance of public confidence in the ability of the relevant authorities to take action against offenders. I must, and do, have regard to this consideration, although I make it clear that my overall conclusions would be the same even without it.

117. Paragraph 3 is also relevant: the longer the sentence, the greater the likelihood that the individual’s continued presence (or, presumably, their re-entry) represents a genuine, present and sufficiently serious threat affecting the fundamental interests of society. I make the same observation here is in the final sentence of the preceding paragraph.

118. Mr Youssefian asked me to have regard to paragraph 7(k) as a consideration favourable to the appellant. This states that acting in the best interests of a child is a fundamental interest of society. I take this into account (I undertake the best interests assessment, below).

Proportionality
119. The proportionality exercise under regulation 27(5)(a) is undertaken in the context of EU law and I direct myself to R (Lumsdon) v Legal Services Board [2015] UKSC 41. There are two questions: first, is the measure in question suitable or appropriate to achieve the objective pursued?; second, is the measure necessary to achieve that objective?

120. The measure in question here is the decision not to revoke the deportation order, with the consequence that the appellant’s exclusion from the United Kingdom is maintained. In my judgment, that measure is both suitable and appropriate to achieve the objective of protecting the public and maintaining the public’s confidence in the respondent’s ability to take action against those with convictions, particularly where the convictions relate to offences such as those in this case, having regard to the specific circumstances of what took place.

121. The second question involves determining whether the measure is necessary and whether it could be achieved by less onerous means than the continued exclusion of the appellant from this country. In answering that question, it is inevitable that I should consider a variety of circumstances pertaining to the appellant, as has been urged on me by Mr Youssefian.

122. I note that regulation 27(6) refers to a number of considerations which would ordinarily feature in a proportionality assessment. However, that particular provision relates to a person “who is resident in the United Kingdom”: the appellant is not such a person. Nonetheless, the considerations are relevant and I will address them.

123. I take account of the fact that the appellant resided in this country from a relatively young age and for a period of approximately 10 years before his deportation in May 2014. That carries only some weight in light of subsequent events.

124. I take account of the appellant’s residence in the United Kingdom between 2015 and the middle of 2022. During this period he established his relationship with PM, IM was born, the appellant obtained employment, and he did not re-offend. To an extent, these considerations carry weight because they represent a period of what might be described as stability and evidence of an ability to live a pro-social life.

125. However, the 2015-2022 period must be considered in its proper context. The appellant re-entered this country using deception, or at the very least on a negligent basis, and in breach of the deportation order which he had been well-aware of. Put bluntly, he should not have been in the United Kingdom at all and the factors now relied on would not have existed if he had complied with the terms of the order. It follows that the amount of weight attributable to the appellant’s residence in this country between 2015 and 2022 is significantly reduced.

126. I have previously addressed the appellant’s age at the time of the offences when considering the Bouchereau exception. I take account of it again at this stage. He was 18 years old at the time and that counts in his favour, albeit only to a limited extent. He was an adult and there is no evidence to which I have been referred which suggests that he was particularly immature or had been pressurised to commit the offences by virtue of his relative youth (the other two perpetrators were of a similar age).

127. I take account of the fact that prior to the index offences, the appellant had no convictions. Having said that, I note from the Probation Service report that he had admitted to street robberies for which she had not been arrested, had a reprimand in 2008 for attempted robbery, a warning for possession of cannabis in 2009, and had received a penalty notice in 2011 for using threatening or abusive words likely to cause harassment, alarm or distress. On the face of the evidence, there were pro-criminal tendencies.

128. I take account of the undeniable fact that some 13 ½ years have passed since the offences were committed. That is relevant to the issue of proportionality, although it carried little significance in relation to the Bouchereau exception.

129. The passage of time becomes more significant when combined with the fact that the appellant has not re-offended since 2011. The First-tier Tribunal was impressed by this aspect of the evidence, particularly when combined with the positive change in lifestyle demonstrated by the appellant during the period of residence from 2015 to 2022. I place relatively significant weight on this matter.

130. This leads me to the next relevant factor. I have carefully considered the issue of rehabilitation. I have not been referred to any specific evidence which shows that the appellant undertook courses whilst in prison, or thereafter. His unlawful period of residence in this country between 2015 and 2022 represent some evidence of rehabilitation by omission (i.e. the absence of re-offending) and positive changes in the circumstances (i.e. his relationship with PM and the birth of IM, together with employment).

131. It does not appear as though the appellant’s residence in Poland between 2014 and 2015 and then since July 2022 resulted in positive rehabilitative steps. Yet, the fact that he has not re-offended whilst in Poland is an indicator that his residence there demonstrates a degree of ‘negative’ rehabilitation. Whilst, for reasons set out later, I do not accept that is circumstances in Poland are as dire as he claims, I am prepared to accept that his overall situation is likely to be more favourable if he were in the United Kingdom and that this might in principle assist him in maintaining his good record since 2011. I take that into account in place some weight on it, although it is not significant because the significant changes in the appellant’s circumstances engage some of the risk factors highlighted by the Probation Service in 2011/2012 as having contributed to the offending.

132. As just foreshadowed, the circumstances which were previously found to have very much counted in his favour in terms of both the threat assessment and proportionality have now significantly changed. The relationship with PM, which constituted a significant incentive for the appellant to adopt a change in lifestyle, has now broken down. His relationship with IM has dramatically altered. If he were now to return to the United Kingdom, I find that his situation would be a lot less stable and favourable than it was between 2015 and 2022.

133. Whilst I have not addressed this at the beginning of my proportionality assessment, I have regard to IM’s best interests as a primary consideration. I have considered the Independent Social Worker’s report, dated 7 September 2022. Of course, this pre-dates the significant changes to the relationship between the appellant and IM and was prepared only a couple of months after the appellant was prevented from re-entering United Kingdom in July of that year. These factors reduce the relevance and weight attributable to the report as a whole. Nonetheless, it remains a source of evidence going to IM’s best interests and proportionality.

134. I accept that whilst the appellant was living with PM and IM as a family unit, he played a “significant role” in caring for them both. The appellant would have picked IM up from school if he (the appellant) had not been refused re-entry in July 2022. I accept that the appellant had a “strong paternal attachment” towards IM, and their relationship was “warm and loving” and “compelling”. The author of the report took the view that there was a risk that IM would suffer separation anxiety if he was not reunited with the appellant sooner. Separation was deemed not to be in IM’s best interests.

135. There is no updated evidence relating to IM. There is no expert evidence as to whether IM has suffered from separation anxiety, or whether there are any other significantly detrimental consequences as result of what has now been a period of almost 3 years apart from the appellant. There is no evidence from PM as to IM’s feelings or behaviour now. The appellant’s sister says nothing about IM’s feelings or behaviour in her updated witness statement (this may be because she is simply unable to due to a lack of regular contact on her part).

136. I accept that it was in IM’s best interests for the appellant to be part of his day-to-day life in the former was living in this country prior to July 2022.

137. I am prepared to accept that it would in principle remain in IM’s best interests if the appellant was once again a part of his day-to-day life.

138. The difficulty facing the appellant, however, is that the prospects of that occurring, even if he was in United Kingdom, are in my view remote. There is no evidence to suggest that daily, or indeed any, direct contact would take place. The appellant’s current contact with IM is by indirect means and this is only facilitated through his sister. Even then, according to his updated witness statement this appears to take place only “from time to time”. Without wishing to sound too blunt, the evidence points towards the strong likelihood that the nature of any contact between the appellant and IM would be essentially the same whether he was in Poland or the United Kingdom.

139. Therefore, the best interests of IM carries some weight in the appellant’s favour, but that is, on the facts of this case, not particularly significant.

140. I take account of the fact that the appellant’s sister lives in United Kingdom and that he had, and probably still has, a good relationship with her. It appears as though she has been, and continues to be, supportive insofar as she is able. This consideration does not, however, carry much weight. There were never any ties of dependency, for example. It is clear that they maintain contact with one another and this could continue.

141. I take account of the appellant’s EU citizenship as a stand-alone consideration. It carries some weight insofar as it forms the underlying basis for his appeal being dealt with under the 2016 Regulations and in light of the importance attached to free movement rights under EU law.

142. The appellant claims in his latest witness statement to be homeless and having to live in his car because he has “no Polish paperwork”. Mr Youssefian acknowledged that this might not stand as cogent evidence, but submitted that it was not implausible. I disagree. There is no reliable evidence as to why the appellant would not have relevant “paperwork” and therefore be unable to work. There is no evidence before me as to what is formally required to obtain employment. There is no evidence to indicate that the appellant has no equivalent to, for example, a National Insurance number. There is no evidence before me as to what social assistance might be available to the appellant if he is unemployed. I do not accept that his present circumstances are, or need be, as serious as asserted.

143. Having said that, I do accept that the appellant is struggling, both economically and emotionally. I do not doubt that he misses IM and that, to his mind, the circumstances which had provided a degree of stability between 2015 and 2022 have unravelled. I take these considerations into account in place some weight on them, albeit this is limited in the overall scheme of my balancing exercise.

144. Having regard to what I have already said, are there alternative and less onerous means by which the objectives pursued by the respondent could be achieved? Simply revoking the deportation order and re-admitting the appellant would, I find, entirely defeat the objectives. There has been no suggestion by either party that some form of formal supervision could be put in place if the appellant were in this country. Even if it could be, that would not address the issue of the public’s confidence in the respondent’s ability to take and then maintain effective measures against those who have committed very serious crimes.

145. Bringing all of the above together, I conclude that the measure adopted by the respondent (i.e. the refusal to revoke the deportation order) is appropriate to achieve the objective of protecting the public and maintaining confidence in the ability to take and maintain effective measures, and that the measure is proportionate in all the circumstances.

Summary of conclusions under the 2016 Regulations
146. The overall effect of everything that I have said is that there has not been a material change in the circumstances which led to the making of the deportation order and the respondent has demonstrated that the criteria giving rise to the making of that order remain justified. The appellant’s appeal under the 2016 Regulations therefore fails.

Article 8 ECHR
147. I have stated previously that human rights are live issue in this appeal. Section 117C of the 2002 Act applies to the situation in which an individual is outside the United Kingdom and has applied for a deportation order to be revoked: Binaku (s.11 TCEA; s.117C NIAA; para. 399D) [2021] UKUT 00034 (IAC). By extension, section 117B applies. The appellant is a “foreign criminal” under section 117D of the 2002 Act. His sentence of 6 years means that he has to demonstrate that there are very compelling circumstances: section 117C(6).

148. Even if Part 5A does not apply to the scenario in this appeal, the appellant would nonetheless have to show a very strong case indeed in order to succeed.

149. Mr Youssefian candidly accepted that it would be difficult for the appellant to succeed on Article 8 grounds if he had lost under the 2016 Regulations. He was right to adopt that position. I will state my reasons in relatively brief form as to why the appellant cannot demonstrate that the respondent’s decision constitutes a disproportionate interference with Article 8 rights.

150. The deportation of the appellant from the United Kingdom was clearly in the public interest. The maintenance of his exclusion from this country is also in the public interest: section 117C(1).

151. In a case where the individual has been sentenced to over four years’ imprisonment, I am not required to address the exceptions under section 117C. However, I do so for the sake of completeness.

152. With regard to section 117C(4), I do not accept that the appellant had been lawfully resident in the United Kingdom for most of his life prior to the refusal of re-entry in July 2022. He was lawfully here between 2004 and his deportation in 2014 (assuming that his imprisonment did not break that lawfulness). He was not here lawfully between 2015 and 2022 because his residence was in breach of the deportation order.

153. I do not accept that he was culturally and socially integrated. He did attend secondary school and that indicates the degree of integration. However, he then committed the offences in 2011, spent three years in custody, was deported, and then re-entered in breach of the deportation order and resided in this country for a further seven years. That last period of residence cannot in my view permit him to have been culturally and socially integrated because he was here in breach of the order. He was residing in defiance of a measure designed to preclude cultural and social integration (i.e. his exclusion from United Kingdom).

154. Even if the appellant had been culturally and socially integrated, the lawful residence criterion is not met and I also do not accept that there have been very significant obstacles to reintegration into Polish society. Although I have accepted that his current circumstances are difficult, I have not accepted that he is unable to obtain employment due to a lack of “paperwork”. There is no evidence of significant ill-health which might otherwise preclude reintegration. The appellant speaks Polish, resided in that country until the age of 11, and has been there for three years since his last attempted re-entry.

155. Turning to section 117C(5), there is clearly no engagement of the partner element. In respect of IM, I am not prepared to accept there is a genuine and subsisting parental relationship. Whilst there clearly had been, the position now is very different. The evidence does not demonstrate that the appellant is taking, although that is only just so. On the evidence before me, I do not accept that the appellant provides at least some elements of direct parental care and it has not be shown that he is taking or contributing to, decisions for IM’s upbringing. There is no direct contact.

156. Even if such a relationship did exist, I find that separation has been unduly harsh on IM. I accept that the separation would have been very difficult for him in the immediate aftermath of the refusal of re-entry in July 2022. But, in the absence of evidence as to IM’s current circumstances (whether from a professional source or otherwise), I am not prepared to speculate as to the level of distress or other forms of harm caused to him as result of the ongoing separation.

157. In respect of section 117(6), I take all of the foregoing into account. I also take account of my assessment of the various considerations when considering proportionality under the 2016 Regulations. I do not intend to repeat what has been said previously. Suffice it to say that there are considerations which carry a certain amount of weight in his favour; in particular, the passage of time since the offences, the absence of re-offending in the intervening years, and the relationship with IM (albeit, that this is now significantly more limited than it had been).

158. The very compelling circumstances threshold is undoubtedly stringent. Taken individually or cumulatively, there are no features of this case which demonstrate that threshold has been met. The very strong general public interest in maintaining the effectiveness of the deportation order, combined with the particular seriousness of the appellant’s offences and the unlawful re-entry in 2015 and attempted pre-entry in 2022, outweigh all of the considerations weighing in his favour.

159. There is nothing in relation to section 117B which is relevant to this case other than the maintenance of effective immigration control.

160. If Part 5A of the 2002 Act does not apply, I would nonetheless conclude that the appellant cannot succeed. It may be that he can rely on private life on the basis that he had established one when previously resident in this country, albeit in breach of deportation order for the period 2015 to 2022) and that re-entry would allow them to re-establish that private life. I also prepared to accept for present purposes that he does have family life with IM, although it is severely limited.

161. I am prepared to accept that the decision not to revoke the deportation order interferes with Article 8 rights.

162. Moving on to proportionality, I take account of everything said when considering the 2016 Regulations and section 117C of the 2002 Act, I conclude that the respondent’s decision strikes a fair balance between the appellant’s rights and the public interest. The appellant has failed to demonstrate a very strong claim.

163. The appellant’s appeal cannot therefore succeed on Article 8 grounds.

Anonymity
164. The First-tier Tribunal made an anonymity order on the basis that the case concerned a minor child. The order was maintained at the error of law stage in the Upper Tribunal without the issue having been discussed further.

165. At the resumed hearing I indicated to the parties my concern as to whether the anonymity order was appropriate. The existence of a minor child is not ordinarily a sufficiently good reason for making an order. I invited submissions from the representatives, but in the event none were forthcoming.

166. I have concluded that the anonymity order should be discharged. Open justice is an important principle and requires cogent justification for it to be displaced. In the present case, the child has only been referred to by his initials. There is no statutory requirement for anonymity. No other aspect of the case justifies anonymity.

Notice of Decision
The making of the decision of the First-tier Tribunal did involve the making of an error on a point of law and that decision has been set aside.

The decision in this appeal is re-made and the appeal is dismissed on all grounds.

H Norton-Taylor
Judge of the Upper Tribunal
Immigration and Asylum Chamber

Dated: 14 May 2025