Tribunal decisions

The decision

IN THE UPPER TRIBUNAL
IMMIGRATION AND ASYLUM CHAMBER
Case No: UI-2024-002751

First-tier Tribunal Nos: EA/52696/2023
LE/01961/2023

THE IMMIGRATION ACTS

Decision & Reasons Issued:

On 1st of May 2025

Before

UPPER TRIBUNAL JUDGE RUDDICK
DEPUTY UPPER TRIBUNAL JUDGE SOLANKI

Between

Mr Bledar Alla
Appellant
and

The Secretary of State for the Home Department
Respondent

Representation:
For the Appellant: Ms H Harmati, acting as a McKenzie Friend
For the Respondent: Ms A Ahmed, Senior Home Office Presenting Officer

Heard at Field House on 10 April 2025

DECISION AND REASONS
1. The appellant is the spouse of an EU national who has pre-settled status in the UK. He appeals with permission against the decision of the First-tier Tribunal, dated 29 February 2024, which dismissed his appeal against the respondent’s decision of 31 March 2023 to refuse his application for pre-settled status as the family member of a relevant EU citizen.
2. The Secretary of State had refused his application on suitability grounds. As set out in the refusal decision, there was an extant deportation order against the appellant, made on 27 April 2017. As also set out in the refusal decision, because the deportation order against the appellant was made in respect of conduct prior to 31 December 2020, the respondent was required to consider whether it was justified under Regulation 27 of the Immigration (European Economic Area) Regulations 2016. She considered a range of factors including the seriousness of the appellant’s offence, the length of the sentence he had received, his immigration history, any evidence of rehabilitation and whether he would be able to work towards rehabilitation in his home country, his wife’s residence in the UK, his age and state of health, his likely ability to support himself in his home country, and the degree of his integration into the United Kingdom. She then concluded that the deportation order was justified under Regulation 27 and that the appellant was therefore unsuitable for a grant of leave to remain under Appendix EU.
3. Although the respondent did not set this out expressly in the refusal decision, the respondent was required to take this fact-sensitive approach by the terms of Appendix EU. Para. EU15(1) states:
“EU15. (1) An application made under this Appendix will be refused on grounds of suitability where any of the following apply at the date of decision:
“(a) The applicant is subject to a deportation order or to a decision to make a deportation order;”
4. Throughout Appendix EU, the use of bold typeface indicates that a term is further defined in Annex 1 to Appendix EU. In Annex 1, “deportation order” is defined in relevant part as follows:
“as the case may be:
“(a) an order made under section 5(1) of the Immigration Act 1971 by virtue of regulation 32(3) of the EEA Regulations; or
“(b) an order made under section 5(1) of the Immigration Act 1971 by virtue of section 3(5) or section 3(6) of that Act in respect of:
“(i) conduct committed after the specified date; or
“(ii) conduct committed by the person before the specified date, where the Secretary of State has decided that the deportation order 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 the person.”
5. In the challenged decision, the FTT set out the legal framework as follows:
“6. For the Appellant to be refused on suitability grounds on the facts asserted here the Respondent must show that the Appellant is the subject of a Deportation Order and engages the terms of EU15.
“7. The material date for my assessment is 21st February, 2024.
“8. The standard of proof is the balance of probabilities.”
6. The FTT then set out the facts of the appellant’s offending history, the making of the deportation order, and his immigration history at [9]-[10]. It recorded at [11] that, “[d]uring cross-examination the Appellant accepted that he was still the subject of a Deportation Order and that he entered the UK illegally in both 2016 and again in 2018.” It made no findings of fact about any of the other factors listed at Regulation 27 and considered by the respondent in the refusal decision.
7. At [12], the FTT gave its reasons for dismissing the appeal:
“Because I have found that the Respondent has shown, on the balance of the probabilities, [that] the Appellant remains the subject of the Deportation Oder made on 24th February, 2017 and executed on 4th May, 2017 I conclude his immigration history engages the terms of EU15.1 and he, therefore, cannot meet the suitability requirements of Appendix EU to the Immigration Rules.”
8. It is unmistakably clear from the content of the FTT decision that the FTT was not aware that the phrase “deportation order” in Appendix EU15(1) had to be interpreted in accordance with the definition contained in Annex 1. Ms Ahmed tried to submit that the FTT was aware of this, but there is no basis for that submission. If the FTT had been aware of the definition set out in Annex 1, it would not have identified the only relevant date as 21 February 2024 but would have recognised that the date of the deportation order was also of critical importance. Nor would it have decided the appeal without making any findings on any of the issues that Regulation 27 and Annex 1 require a decision-maker to consider before deciding whether a deportation order is justified, issues, moreover, that the respondent herself had carefully considered in the refusal decision on appeal.
9. Ms Ahmed then tried to argue that this error was not material. It is difficult to understand how it could be not material for the FTT to be unaware of the relevant legal framework and therefore to fail to make any findings on multiple material issues.
10. It is disappointing that the respondent chose to defend this appeal before the Upper Tribunal in such an obvious case.
Decision
The decision of the First-tier Tribunal is set aside and the matter is remitted to the First-tier Tribunal for a full hearing on all matters before any other judge.

E. Ruddick

Judge of the Upper Tribunal
Immigration and Asylum Chamber

23 April 2025