Tribunal decisions

The decision

IN THE UPPER TRIBUNAL
IMMIGRATION AND ASYLUM CHAMBER
Case No: UI-2024-001733

First-tier Tribunal Nos: EA/51911/2021
IA/08499/2021

THE IMMIGRATION ACTS

Decision & Reasons Issued:
On 16 May 2025

Before

UPPER TRIBUNAL JUDGE PERKINS
DEPUTY UPPER TRIBUNAL JUDGE ANZANI

Between

The Secretary of State for the Home Department
Appellant
and

Stiljano Ziu
(no anonymity order made)
Respondent

Representation:
For the Appellant: Mr K Oto, Senior Home Office Presenting Officer
For the Respondent: Mr M Fazli, Counsel instructed by Farani Taylor Solicitors

Heard at Field House on 14 April 2025

DECISION AND REASONS
1. This is an appeal by the Secretary of State against the decision of the First-tier Tribunal allowing the appeal of the respondent, herein after “the claimant”, against the decision of the Secretary of State on 2 June 2021 refusing him a residence card as the husband of a Greek national present in the United Kingdom and exercising treaty rights.
2. Permission to appeal was granted by the Upper Tribunal on 12 February 2025.
3. This appeal has a long history and I am particularly grateful to the claimant’s “Rule 24 response” for a brief summary.
4. This shows that the claimant entered the United Kingdom unlawfully in 2017 or 2018. On 19 November 2018 he was convicted of offences involving the production of cannabis and was sentenced to nine months’ imprisonment. He was deported on 20 December 2018. However, in breach of a deportation order he re-entered the United Kingdom in early 2019.
5. On 24 December 2020 he applied for a residence card as the spouse of a Greek national exercising treaty rights in the United Kingdom. He was not then married but he married on 3 April 2021. The application was refused in a decision dated 2 June 2021 and the claimant appealed. The appeal was allowed by the First-tier Tribunal on 26 February 2022 and the Secretary of State appealed to the Upper Tribunal.
6. In an extempore judgment following a hearing on 10 August 2022 Upper Tribunal Judge Keith found that the First-tier Tribunal had erred in law and set aside its decision but preserved important findings. Judge Keith said at paragraphs 16 and 17 of his “Decision and Reasons”:
16. To the extent that Mr Mavrantonis [counsel for the claimant] says that the effect of the impugned decision is to extinguish the earlier deportation order, first, he cites no authority for that proposition, but more importantly, if that were part of the FtT’s rationale for her decision, it is not one that is either referred to or discussed in her reasons. It is also not an argument that diminishes the materiality of the FtT’s error. Put simply, whilst Mr Mavrantonis says that there must be a genuine, present and sufficiently serious threat, and the Secretary of State accepts that there is not a present serious threat in relation to a propensity to re-offend, it does not follow that the Claimant does not pose a different threat to other fundamental interests of society, namely preventing unlawful immigration and abuse of the immigration laws (Schedule 1, paragraph 7(a)). The fact that the Claimant may or may not subsequently be seeking to regularise his status under the Regulations does not minimise the need for the FtT to have specifically considered the wider circumstances, namely re-entry in breach of the deportation order.
17. Where a very significant part of the rationale of the Secretary of State’s decision has not been addressed by the FtT, I am satisfied that her decision erred of law, such that her decision is unsafe and cannot stand. In doing so, I expressly preserve the findings by the FtT that on the evidence before her, the Claimant has no propensity to re-offend.
7. At that stage Judge Keith indicated that the Upper Tribunal would redetermine the appeal. However, it was known that the claimant was being prosecuted and Judge Keith ordered a Case Management Hearing that was conducted by telephone.
8. At that hearing, on 11 April 2023, it was explained that the claimant had been prosecuted but the trial had collapsed. In accordance with submission made by the claimant’s counsel, Judge Keith remitted the case to the First-tier Tribunal and it was reheard by First-tier Tribunal Judge Gribble on 26 June 2023. She allowed the appeal and it is against that decision that the present appeal falls.
9. In addition to preserving findings set out above, Judge Keith’s extemporary judgment on 10 August 2022 (if we may respectfully observe) “set the scene” for the further hearing of the appeal. Paragraph 3 of Judge Keith’s order is particularly important. He said:
“The Secretary of State refused the Claimant’s application on the basis that she did not accept that the sponsor was exercising treaty rights because of the absence of relevant documentation. Moreover, the Secretary of State considered the Claimant’s application by reference to regulations 18, 24 and 27 of the Immigration (EEA) Regulations 2016 and the fact that the Claimant had entered the UK in breach of a deportation order. Regulations 18 and 24 allowed the Secretary of State to refuse to issue a residence card where refusal was justified on grounds of public policy. The Secretary of State considered the principles set out in regulation 27(5) of the 2016 Regulations. The Claimant had not sought to regularise his status when he initially entered the UK and had made no representations for his deportation order to be revoked. The Secretary of State noted the nature of the Claimant’s drugs production offence and at §19 of her decision, the Claimant’s blatant disregard for the UK’s immigration controls. The Secretary of State regarded the Claimant as posing a genuine, present and sufficiently serious threat and also that deportation was proportionate. In particular, the Claimant’s period of residence in the UK was limited and the Claimant had started a relationship with his wife at a time when he had entered the UK in breach of a deportation order. His familial links were insufficient to establish integration in the UK and his ability to reintegrate into Albania, his country of origin, was realistic. There would be no impact any rehabilitation, if he were returned to Albania (sic).”
10. We consider now the decision of the First-tier Tribunal promulgated on 12 July 2023. This is the decision of First-tier Tribunal Judge Gribble. Judge Gribble, correctly, set out the history of the claimant and noted how Judge Keith at paragraph 15 of the Decision and Reason drew attention to the Secretary of State addressing the question of how the claimant’s presence in the United Kingdom impacted on the fundamental interests of society. Judge Gribble noted how Judge Keith had ruled that although the Secretary of State accepted that the claimant was not a serious threat because of any possible propensity to reoffend, the claimant had to do more before he could succeed. It does not follow from the finding that he is not likely to reoffend that the claimant does not pose a threat to the fundamental interests of society particularly by reason of his obstructing immigration control by entering the United Kingdom in breach of a deportation order.
11. At paragraph 7 of her Decision and Reasons Judge Gribble expressed some uncertainty about the scope or meaning of the Upper Tribunal Judge’s order but acknowledged that it was quite clear that the claimant had re-entered the United Kingdom in breach of a deportation order in 2019 and met his now wife after entering the United Kingdom.
12. Judge Gribble also noted that the claimant was additionally facing trial for conspiracy to produce cannabis and supplying cannabis. Judge Gribble identified the issues before her at paragraph 16 of the Decision and Reasons, and expressly directed herself that she had to decide whether the Secretary of State had shown that the claimant is a:
“genuine, present and sufficiently serious threat to one of the fundamental interests of society; in this case the of preventing unlawful immigration and abuse of the immigration laws and maintaining the integrity and effectiveness of the immigration control system ….”.
13. Judge Gribble heard from the claimant and his wife who were both cross-examined. The claimant’s wife did not want to live with the claimant in Greece because of economic difficulties in that country.
14. Paragraph 19 of Judge Gribble’s Decision and Reasons is important. There the judge says:
“I will not repeat these in full save to say [the Presenting Officer] outlined that the [claimant] was released from his prison sentence early only the basis he agreed to be deported. He returned within weeks in clear breach of the deportation order. There can be no clearer case of abuse of immigration laws. He took advantage of the early release scheme and had no intention of remaining in Albania. He had the resources, means and contacts to return illegally. This was only discovered when he made an application under the Regulations as an unmarried partner then as a spouse. He is still benefitting from his illegal entry and worked illegally too.”
15. It was Counsel’s argument that although there was no doubting the claimant’s behaviour, the relevant test was whether he was, at the time of making of the decision, a present and sufficiently serious threat. He had not been convicted of anything since 2018.
16. The judge noted it was for the Secretary of State to justify the decision and therefore to prove that the claimant was a threat to the fundamental interests of society. The Rules require that the decision is proportionate and prescribed that convictions on their own cannot justify a decision to refuse an application. The judge described the claimant’s conduct as “a flagrant and serious breach of UK immigration laws” and at paragraph 31 the judge said:
“I am satisfied the [claimant] is a genuine threat to the integrity of the immigration system. He has entered illegally twice thereby circumventing the immigration system. He entered the second time in knowing breach of a deportation order. By the nature of its repetition the threat is realistic, and I consider it a sufficiently serious threat to the maintenance of the integrity and effectiveness of the immigration control system.”
17. The judge then went to ask if the Secretary of State had shown that the claimant was a present threat and directed herself that, in accordance with the decision in Arranz (EEA Regulations – deportation – test) [2017] UKUT 00294) that the test required a prediction and that the decision to deport had to be proportionate. The judge repeated that the unlawful entry was over four years ago and said:
“I cannot be satisfied that there is a ‘present’ threat to the integrity of the immigration system in the circumstances”.
18. The judge then allowed the appeal. The Secretary of State appealed to the Upper Tribunal.
19. There are two grounds of appeal. The first is under the heading “Making a material misdirection of law – ‘present’ threat” and the second is entitled “Making a material misdirection of law – integration/proportionality”.
20. We consider first the “present threat”. The criticism in the grounds is that the judge:
“failed to have regard to relevant material factors regarding the [claimant’s] conduct, in line with Arranz [24] and with reference to providing a “predictive, evaluative assessment of future events” [32].”
21. It was said the judge should have had more obvious regard to the comments of the sentencing judge that the claimant came to the United Kingdom “prepared to do any activity, legal or illegal, and the circumstance in which you came here suggests that criminal activity was encompassed in what you needed to do.” It was said that the First-tier Tribunal Judge failed to consider the potential threat of reoffending given “the [claimant’s] current circumstances having been implicated for “offences of conspiracy to produce cannabis and the supply of cannabis” and was awaiting trial. It was said that the judge was wrong because she did not consider the claimant’s “motivation having been implicated in the same offence some years later while married and working” and the judge did not recognise that the past threat does not have to be “imminent”.
22. The ground addressing “integration/proportionality” complains that the judge did not consider the “wider links” that the claimant said he had established in the United Kingdom. There seemed to be nothing other than family ties and possibly some relationships with co- workers built up when he was in the United Kingdom when he ought not to have been. It was said that the “FTTJ has improperly excluded arguably relevant matters, as stated, which show that the [claimant] is a present threat to the fundamental interests of society.”
23. No reason was given to say why it is disproportionate to remove him, for example because of his age or state of health or that of his partner.
24. As we have indicated, permission was refused by the First-tier Tribunal but granted by the Upper Tribunal. The main reason for Upper Tribunal Judge Kamara granting permission is given at paragraph 3 of her decision where she says:
“It is arguable that the judge in finding that the [claimant] did not pose a present threat to public policy did not take into account the remarks of the sentencing judge, the outstanding criminal prosecution for similar offences as well as the principles in Regulation 27(5)(c) of the EEA Regulations 2016.”
25. Before us Mr Fazli relied extensively upon a full Rule 24 response from Mr George Mavrantonis dated 15 March 2025. We consider that now. The main point taken in the Rule 24 notice is the nature of the preserved findings. Expressly, the first First-tier Tribunal found on the evidence that the claimant had no propensity to reoffend and further (see paragraph 17 of the Judge Keith Decision and Reasons) it was preserved that:
“of the Claimant’s personal conduct, to the extent that it relates to the risk of reoffending, does not represent a genuine, present and sufficiently serious threat affecting one of the fundamental interests of society, as distinct from his conduct relating to his re-entry into the UK in breach of a deportation order”.
26. That is extremely clear and, at the very least, represented the necessary starting point from which there could no be departure without notice to the parties, without risk of unfairness. The Rule 24 notice contended that it was just wrong to say that any regard should have been given to the forthcoming trial because that was not evidence of guilt. Paragraph 20 of the Rule 24 notice is particularly important. There it states:
“Having noted the above, [the claimant] wishes to duly inform this Tribunal that by means of a letter dated 19 February 2025 received by Ferani Taylor Solicitors and by his criminal solicitors, and to the author’s best understanding, [the claimant] has been convicted on 28 November 2024 to four-and-a-half years in prison for two counts of conspiring to supply Class B drugs, these are to run concurrently. Conduct took place between 30 January 2020 and 29 June 2022. It is understood that [the claimant] has not appealed against his sentence or conviction.”
27. The Rule 24 notice then contends that the First-tier Tribunal Judge did not err concerning her treatment of the claimant’s unlawful re-entry. The point is that the judge fully acknowledged the serious nature of the claimant’s flagrant breach by reason of returning to and remaining in the United Kingdom but concluded that the Secretary of State had not shown that the claimant’s continuing presence was a present threat to the integrity of the immigration system and that was a finding open to her.
28. We make it clear that that is not necessarily the only finding that could be reached on the evidence but it was made and it is not challenged by the Secretary of State and that is important. It is for the Secretary of State to determine the grounds on which the appeal is brought, at least on which permission is sought and the point was not taken. That said, although neither party reminded us of the decision, we are aware of the Court of Appeal’s ruling in SSHD v Robinson [2018] EWCA Civ 85 which emphasised the need for “public revolution” before past offending alone justified expulsion. The Judge approach was not obviously wrong and, we repeat, not challenged in so far as it related to continuing lawful presence without additional offending.
29. With respect to both the representatives before us, not very much more was said beyond pleadings. That is not to criticise anybody. There is no point in talking for the sake of talking and the cases were clearly set out in writing. Mr Oto did emphasise that there was little to stop the claimant going back to his country of nationality and taking his wife with him and that was a point taken in the grounds and he said a point that was not dealt with adequately.
30. We find that the judge’s approach to what was then the prospect of a further conviction was correct. The judge acknowledged the impending prosecution expressly but gave it no weight. Even if the judge erred by not explaining her decision to give no, or no obvious, weight the error was not material.
31. It is unwise to say “never” but it is not easy to imagine circumstances where the mere fact of a further prosecution is evidence of a person’s unsuitability to remain in the United Kingdom. Ideally a person should not be committed to Crown Court if there is not at least a prima facie case to answer but it might suit a defendant to keep his powder dry and not take points at committal. The fact of a prosecution might indicate an extremely compelling case which ought to lead to a conviction. However, it is possible that a person has been charged because of, for example, mistaken identity and so is completely innocent. An even more extreme example of the unhelpfulness of the fact of an impending trial is that a person might be prosecuted as an act of spite. That would be rare but it can happen. If the Secretary of State wishes to rely on the fact of the prosecution, the Secretary of State needs to explain its relevance and the relevance must in most circumstances, if not always, go beyond the mere fact that the prosecution is taking place. There is no reason at all why in appropriate cases the Secretary of State should not outline on the balance of probabilities by reference to evidence in a criminal case why a person is undesirable (within the meaning of the rules) although there may be difficulties in disclosing such evidence before a criminal trial. Very often it would be more sensible to await the outcome of a trial; then the reasons for a person’s presence being undesirable could be made clear. Very often the fact of a conviction will be sufficient but an acquittal does not prevent the Secretary of State leading evidence to show on the balance of probabilities why a person’s presence is undesirable. However, we find it is not satisfactory simply to say that a prosecution is underway. That just introduces an air of complete uncertainty. The Secretary of State will of course be concerned with protecting the public but there is no reason at all why a subsequent conviction, particularly, as appears to have been the case here, followed by a long sentence of imprisonment, cannot lead to a further decision to deport or why the fact of a prosecution cannot lead to the Secretary of State withdrawing the decision complained of and making another one when the outcome of the trial is known. We appreciate that awaiting the outcome of the trial can be a time-consuming process and each case has to be looked at on its own facts. We reiterate that we cannot see any error at all in the judge’s refusal to give weight to the fact of a prosecution.
32. We are inclined to agree with the grounds that the judge has given “light” reasons for saying that the claimant should not be expected to re-establish himself in his country of nationality but it is a question of balance and when those reasons are not being balanced against a recent conviction the light reasons can be and in the judge’s judgment were sufficient. In any event this is an appeal under the EU regulations. Deportation is only permissible if certain criteria are met and the judge found that they were not.
33. We repeat that this is not a case where the Secretary of State has challenged Judge Gribble’s decision on the basis that the mere presence on the part of somebody who had so deliberately violated immigration control was itself a present threat.
34. Putting everything together we are satisfied that the judge made a decision that was open to her and gave lawful reasons. We therefore dismiss the Secretary of State’s appeal. What happens next is of course a matter for the Secretary of State. However, the claimant must understand that his recent conviction has resulted in a sentence that may require his deportation from the United Kingdom and that is something the Secretary of State will consider. It may be that this case has been an academic exercise.
35. Nevertheless, for the reasons given, we find that the Secretary of State has failed to show that the First-tier Tribunal erred in law and we dismiss the Secretary of State’s appeal.
Notice of Decision
36. The Secretary of State’s appeal is dismissed.

Jonathan Perkins

Judge of the Upper Tribunal
Immigration and Asylum Chamber

14 May 2025