Tribunal decisions

The decision

IN THE UPPER TRIBUNAL
IMMIGRATION AND ASYLUM CHAMBER
Case No: UI-2024-003527
UI-2024-003528

First-tier Tribunal No: HU/00117/2024
EA/00175/2024

THE IMMIGRATION ACTS

Decision & Reasons Issued:

19th June 2025

Before

UPPER TRIBUNAL JUDGE O’BRIEN

Between

SECRETARY OF STATE FOR THE HOME DEPARTMENT
Appellant
and

CARLOS ALBERTO PEDRO VIEIRA
(NO ANONYMITY ORDER MADE)

Respondent

Representation:
For the Appellant: Ms S Rushforth, Senior Home Office Presenting Officer
For the Respondent: Mr R Roberts, Legal Representative instructed by Cromwell Wilkes

Heard at Cardiff Civil Justice Centre on 16 April 2025

DECISION AND REASONS
1. For convenience, I refer below to the parties as they were known in the First-tier Tribunal.
2. This is the remaking of a decision in the appellant’s appeal against the respondent’s decision to refuse his human rights claim made in the context of deportation proceedings.
3. The appellant’s appeal to the First-tier Tribunal had been dismissed by a decision promulgated on 26 June 2024. However, that decision was set aside by the Upper Tribunal (Upper Tribunal Judge Khan and Upper Tribunal Judge Sheridan) in a decision promulgated on 15 November 2024. The Upper Tribunal concluded that the First-tier Tribunal had erred in law by giving inadequate reasons for concluding that the appellant faced very significant obstacles to reintegration into Portugal (or alternatively that there were very compelling circumstances outweighing the public interest in deportation), in failing to address the provision of potential welfare benefits which the appellant may well be able to access on return to Portugal (see in particular paragraph 16 of the Upper Tribunal decision). The Error of Law decision is annexed below.
4. In setting aside the decision of the First-tier Tribunal for that reason, the Upper Tribunal held that ‘all other findings are preserved’. What is clearly meant is that all findings are preserved, save for any implicit finding that the appellant would have access to no financial resources beyond what he might eventually generate himself, and the consequential conclusions that ss117C(4) & (6) apply. The Upper Tribunal gave directions for further documentary evidence from either party [20] and further oral evidence upon provision of a witness statement [21], noting that any relevant evidence with regard to the appellant’s ability to access financial resources on his return which addresses the economic hardship point would be relevant to the re-making.
5. As it is, the only additional evidence provided was a 24 page document, ‘Practical Guide – Social Integration Income’, published by the Portuguese Social Security Institute on 16 October 2024. This had been provided by the appellant but without any additional witness statement.
The Issues
6. It is no longer in issue that it is the domestic deportation regime which applies to the appellant, and not the European Law framework preserved by the Withdrawal Agreement for conduct prior to 11pm on 31 December 2020. Consequently, the Article 8 assessment I have to undertake has to be completed in accordance with Part 5A of the Nationality, Immigration and Asylum Act 2002. Neither is it in issue that the appellant is a foreign criminal as defined in s117D(1) of that Act, who was sentenced to 3 years’ imprisonment for the offence of being concerned in the supply of class A drugs (heroin and cocaine).
7. In particular, s117C(1) provides that the deportation of foreign criminals is in the public interest and s117C(2) that the more serious the crime the stronger the public interest. However, s117C(4) provides that, where the relevant term of imprisonment is less than 4 years, the public interest does not require the deportation of a foreign criminal who has been lawfully resident in the United Kingdom for most of their life, who is socially and culturally integrated in the United Kingdom and for whom there would be very significant obstacles to reintegration into the destination country. Furthermore, s117C(6) provides that the public interest requires deportation of an individual for whom the statutory exceptions prescribed by ss117C(4) & (5) (the latter of which is irrelevant to the appellant’s case) do not apply ‘unless there are very compelling circumstances’ above and beyond those exceptions.
8. In the appellant’s case, it is agreed that there are only 2 issues: whether the appellant would face very significant obstacles to reintegration into Portugal; and, if not, whether there are very compelling circumstances above and beyond the statutory exceptions at ss117C(4) & (5).
Consideration
9. The findings of the First-tier Tribunal relevant to those issues are as follows:
a. ‘The Appellant is a Portuguese national, who has been in the UK a long time, either since 1985 or 1992, has provided records showing that he exercised treaty rights as a worker, and contributed economically - though during the offending years (2009-2013), either intermittently or not at all, and not of substance between then and his index offence. He is in good health, aside from a few minor problems, has been back to Portugal only once in many years, is able to work as a chef and otherwise in hospitality. He was in a long term relationship (with Linda), which lead to the birth of his daughter (now aged 23), with whom he is still in contact, and who lives in the Cardiff area. He and his partner (Linda) ran a business, had their own (bought) house, and his offending appears to have started when they separated. His offending has been identified by the OASYS report-writer as linked to financial problems, which can be reduced by finding work and accommodation; when in financial difficulty, he resorts to crime. The writer refers to his past substance misuse, but does not link this to his involvement in the index offence, nor consider that it is a factor which impacts on the risk of further offending. The risk of serious re-offending is considered low, providing he avoids financial difficulty, comments that he has no pro-criminal tendencies and has a respect for authority. He is motivated not to reoffend. The sentence of imprisonment is the first that he has served.’ [14]
b. ‘I find on a balance of probabilities that the Appellant came to the UK in 1985 aged approx. 20; I accept as credible his evidence that he left Portugal to come to work, as there was no work there, and he took up work as a kitchen porter.’ [24]
c. ‘I find that the Appellant has been in the UK for almost 39 years, having left Portugal aged 20. He speaks good English, as he does Portuguese, and would not have a language problem if returned. However, I accept that he has entirely shifted his focus from there, to here, and made a life here, working, forming a long-term relationship, having a family, buying a home, and continuing to have a relationship with his (now) adult daughter. There was no challenge to his evidence that he has no remaining family there, has no home there, has not kept in contact with anyone there and not returned for save one week in 2017/18. I find that he has left Portugal behind, and has no specific place or person where he could make a fresh start.’ [25]
d. ‘He is healthy, and can reasonably be expected to find work here and also there; he has been in the hospitality industry here, and says he is a trained chef and can work as that. He could find work. However, I do find that he has no specific place to go or person to source work, and that – absent of support […], he would have difficulties, because he would have no place to start. It is apparent that the risk of offending elevates for him, if he faces economic hardship, in light of the OASYS report; that in itself could lead to serious consequences (here or there).’ [26]
e. ‘The public interest in the Appellant’s deportation is generally strong; s117C(1) provides that deportation of foreign offenders is in the public interest and the more serious the offence, the greater the interest in deportation; here, the length of sentence speaks to the gravity of the offence and the public interest in deportation is strong, particularly for drugs offences, which cause great misery, a trade which he was facilitating. Here the Appellant expresses remorse and says that he has learned his lesson and is rehabilitated; the probation assessment of the future risks suggests that there is a low risk and he is motivated; there are no pro-criminal tendencies; there is no suggestion of anything other than good conduct whilst in prison, and that he has used his time effectively in bettering his skill set.’ [28]
10. In the excerpt above from [26], I have deleted an impugned finding of fact: that the appellant does not have any support in Portugal. That is a matter I am charged to consider for myself, in light of the evidence both before the First-tier Tribunal and provided as directed in the Error of Law decision.
11. The respondent relies in particular on the availability in Portugal of Social Integration Income (referred to as RSI in the ‘Practical Guide’, and so which I shall use below), although Ms Rushforth also submitted that other benefits such as unemployment benefits were available. Mr Roberts submitted that it was speculative to find that the appellant would succeed in claiming RSI and that such a claim, even if successful, would take time to make and be processed. The appellant would be at risk of destitution in either case such that there remained very significant obstacles to his reintegration into Portugal.
12. The Practical Guide sets out at p5-6 the entitlement conditions for RSI. The appellant does not challenge the residence condition, nor is there any issue regarding his age. However, the following conditions were particularly identified by Mr Roberts as practical obstacles to his claiming (or claiming sufficiently quickly) RSI: the applicant must be in a situation of extreme poverty; he must make a formal and express commitment to conclude the Social Integration Contract (to be available for work, attend training courses or accept other appropriate forms of social integration); he must be registered in the Employment Centre of his residence area; and cannot be accommodated in state-funded establishments. Mr Roberts also points to the forms to be completed and documents to be provided in support as bureaucratic obstacles which would hinder the processing of a claim.
13. The appellant’s problem is that he bears the burden of proving those matters said to constitute very significant obstacles to reintegration. He has not provided a witness statement in addition to the Practical Guide, and therefore has not shown that he has made any personal enquiries in to the practicalities of claiming RSI, either on arrival in Portugal or indeed in advance of his return. Therefore, it is the appellant’s claim to face practical barriers or unreasonable delays which is speculative and ultimately unsubstantiated. As for the preconditions to claiming RSI, it is the appellant's case that he would face extreme poverty on return, and so would satisfy that condition. He has given no reason why he could not conclude the Social Integration Contract. He has not shown an inability to register in advance with an appropriate Employment Centre (less still any attempted discussions with the respondent as to the likely area to which it is proposed he be returned in order to identify an Employment Centre with which to correspond), nor that it would take a significant period to do so on return if impracticable to do so in advance. It is reasonable to presume that the reason RSI is unavailable to occupants of state-funded accommodation is that they are already safeguarded from destitution; certainly, the appellant has provided no evidence to the contrary.
14. The appellant is healthy, aside from a few minor problems. He worked in the United Kingdom initially as a kitchen porter and later as a chef. He could work in that capacity in Portugal. The appellant is motivated not to reoffend, and has demonstrated a respect for authority. He speaks good Portuguese and would have not have a language problem if returned. These are preserved findings notwithstanding Mr Roberts’s repeated submissions that the appellant speaks Portuguese with a Welsh accent (a matter quite likely to be true albeit entirely unevidenced). He has no friends or family to call on for support in Portugal, nor any accommodation to return to. However, there is available to the appellant the possibility if necessary of claiming RSI, if returning would otherwise place him in extreme poverty, and he has failed to show any barriers either to securing the funding in a sufficiently short period or at all. It is less clear if he would qualify for unemployment benefits and so I leave that possibility out of the equation. Nevertheless, reminding myself of the test for integration as explained in Kamara v SSHD [2016] EWCA Civ 813, and further confirmed in NC v SSHD [2023] EWCA Civ 1379 as not being limited to the appellant’s own subjective view, I am satisfied that the appellant would not face any very significant obstacles to reintegration into Portugal.
15. Turning therefore to the question of whether there are very compelling circumstances above and beyond the statutory exceptions such that the public interest in deportation, I note first that the appellant was convicted of an offence which, as the First-tier Tribunal accepted was serious, prevalent and by which the public were rightly concerned. He received a custodial sentence of 3 years, well above the threshold for satisfying the definition of foreign criminal. Whilst this is 1 year less than the threshold for being excluded from the statutory exceptions provided under ss117C(4) & (5), the public interest in deportation remains very significant.
16. Nevertheless, I take into account the following weighing in the appellant’s favour. He has lived lawfully in the United Kingdom since 1985, some 40 years ago. He is socially and culturally integrated into this country, and can speak English well. He has worked for most of that time, has paid taxes to the state, and has the skills and motivation to return to work. The appellant has no place or person to return to in Portugal and has only returned once, in for a week in 2017/18 (albeit that he does not face very significant obstacles to reintegration). He has a genuine and subsisting relationship with his 23-year-old British daughter who lives in the Cardiff area (which it is accepted does not constitute Article 8 family life but rather forms part of his Article 8 private life). He is motivated to change, has expressed remorse and has displayed self-insight. He was assessed as posing a low risk of serious reoffending, and there is no evidence that the appellant has reoffended since his release.
17. Notwithstanding the above, it weighs against the appellant that he if fit, healthy and could reasonably be expected to find work in Portugal. Moreover, I remind myself that financial independence from the state and the ability to speak English are neutral in the balance.
18. All in all, the appellant has failed (by some way) to demonstrate very compelling circumstances, as explained in HA (Iraq) [2022] UKSC 22, such as to outweigh the public interest and render deportation disproportionate. For these reasons, I dismiss the appeal.
Notice of Decision
1. The decision of the First-tier Tribunal involved the making of an error of law and is set aside to be remade in the Upper Tribunal.
2. The appeal is dismissed on human rights grounds.

Sean O’Brien

Judge of the Upper Tribunal
Immigration and Asylum Chamber

17 June 2025

Annex

Case Nos: UI-2024-003527 UI-2024-003528
First-tier Tribunal Nos: HU/00117/2024 EA/00175/2024
THE IMMIGRATION ACTS
Decision & Reasons Issued:
On 15 November 2024
Before
UPPER TRIBUNAL JUDGE KHAN
UPPER TRIBUNAL JUDGE SHERIDAN
Between
THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Appellant
and
CARLOS ALBERTO PEDRO VIEIRA
(NO ANONYMITY ORDER MADE)
Respondent
Representation:
For the Appellant: Ms H Gilmour, Senior Home Office Presenting Officer
For the Respondent: Mr R Roberts, Legal Representative instructed by Cromwell Wilkes

Heard at Field House on 1 November 2024

DECISION AND REASONS

1. This is an oral decision following submissions heard in this appeal.
2. For the purposes of ensuring clarity, the reference to the Secretary of State for the Home Department and Carlos Alberto Pedro Viera who were referred to as the respondent and appellant, respectively, before the First-tier Tribunal is maintained in this decision.

3. The respondent appeals with permission against the decision of First-tier Judge Oxlade (‘the Judge’) dated 26 June 2024 on the grounds that she erred materially in law in allowing the appellant’s appeal against the Secretary of State’s decision that his deportation was conducive to the public good in accordance with s3(5) Immigration Act 1971.
4. Permission to appeal was granted by First-tier Judge Scott on 31 July 2024 on the basis it was arguable that the factors relied on by Judge Oxlade did not meet the elevated threshold of ‘very significant’ obstacles to integration. Judge Scott also considered whether the error of law was material given that Judge Oxlade made findings that there were very compelling circumstances which outweighed Mr Viera’s deportation based on the very significant obstacles findings. In the circumstances, Judge Scott concluded that he was satisfied there was an arguable material error of law.
5. In terms of the appellant’s immigration history, he arrived in the United Kingdom on 7 September 1985. The records show that his first known presence in the UK was sometime in 1992. Between 30 September 2009 and 1 November 2022, he accrued eleven convictions for eighteen offences in the United Kingdom. Ultimately on 5 January 2024, following a lengthy immigration history, a non-certified deportation decision was made by virtue of s32(5) of the UK Borders Act 2007 and s3(5) of the Immigration Act 1971. A decision was also taken to make a deportation order in accordance with Regulation 27A of the Immigration (European Economic Area) Regulations 2016. The appellant was served with these decisions, and he appealed to the First-tier Tribunal.
6. The respondent’s case is that First-tier Judge Oxlade failed to give reasons or any adequate reasons for her findings that there were ‘very significant obstacles’ to the appellant’s integration in accordance with s117C(4) of the Nationality, Immigration, and Asylum Act 2002 (‘the 2002 Act’) which provides in respect of Exception 1:
(a) C has been lawfully resident in the United Kingdom for most of C’s life,
(b) C is socially and culturally integrated in the United Kingdom, and
(c) there would be very significant obstacles to C’s integration into the country to which C is
proposed to be deported.
7. The respondent argues that the Judge’s findings at paragraphs [25] and [26] of the decision are
particularly problematic given that she found the appellant spoke good Portuguese and ‘would not have a language problem if returned’.
8. At [26], the Judge also found the appellant to be healthy and could reasonably expect to find work in Portugal, possibly in the hospitality industry where he trained. The Judge further found that ‘absent of support, which he does not have, he would have no place to start. It is apparent that the risk of offending elevates for him, if he faces economic hardship’ and that the ‘evidence does point to very significant obstacles to his reintegration, where he has language, skills and health, but nothing else’.
9. The respondent submits the Judge’s finding at [26] that ‘The evidence points to very significant obstacles to his reintegration’ fails to acknowledge the existence of Social Security benefits in Portugal, with particular reference to the Social Integration Income provision. It also fails to acknowledge the absence of any medical reasons that would detrimentally impact on the appellant’s integration. In the circumstances, the respondent argues that the Judge erred materially in law in finding the appellant would face difficulties amounting to very significant obstacles on his return to Portugal.
10. We observe that the Judge does go on to consider in the alternative, s117C(6), of the 2002 Act, in respect of the test for ‘very compelling circumstances’. Although that matter has not been argued before us today, it is relevant because in deciding there were compelling circumstances that outweighed deportation, the Judge placed weight on the same findings she made in respect of very significant obstacles to reach her decision regarding s117C(6).

11. The relevant case law relied upon by the respective parties is not contested. The decision of Secretary of State for the Home Department v Kamara [2016] ECWA 813 deals with the issue of very significant obstacles to integration. At paragraph [12], it states that when one comes to consider the issue of very significant obstacles, the burden is on the appellant to demonstrate that there would be very significant obstacles to his integration there and the use of the word ‘very’ showed that the threshold was a high one. At paragraph [14] the decision states:
“The concept of a foreign criminal’s ‘integration’ into the country to which it is proposed that he be deported, as set out in section 117C(4)(c) and paragraph 399A, is a broad one. It is not confined to the mere ability to find a job or to sustain life while living in the other country. It is not appropriate to treat the statutory language as subject to some gloss and it will usually be sufficient for a court or tribunal simply to direct itself in the terms that Parliament has chosen to use. The idea of ‘integration’ calls for a broad evaluative judgment to be made as to whether the individual will be enough of an insider in terms of understanding how life in the society in that other country is carried on and a capacity to participate in it, so as to have a reasonable opportunity to be accepted there, to be able to operate on a day-to-day basis in that society and to build up within a reasonable time a variety of human relationships to give substance to the individual’s private or family life”.
12. We have also been referred to the decisions of NC v SSHD [2023] EWCA Civ 1379 and also Parveen v SSHD [2018] EWCA Civ 931. We do not think either of those cases adds anything to the test set out in Kamara.
13. Mr Roberts on behalf of the appellant, argues that there are no errors of law in the Judge’s decision which is sufficiently reasoned and rational. However, he accepts that if the Judge had in fact considered the provision of welfare benefits, that is not clear from the face of her decision, but in any event, she was entitled to reach the decision she did.
14. In light of the submissions heard, the respondent’s main thrust is that there is an inherent contradiction in the decision in the way the Judge has set out a number of factors which point one way, namely obstacles to reintegration, but has failed to take into account the existence of a Portuguese welfare state and the potential of applying for benefits on return which may have tipped the balance in the other direction had it been considered.
15. Mr Roberts accepts that on the face of the decision there is no mention by the Judge whatsoever of the potential for the appellant to access the Portuguese welfare state on return. In this regard, even though the decision specifically points to an elevated risk of reoffending by the respondent if he faces ‘economic hardship’, no consideration appears to have been given to the possibility of him being able to access any welfare provision on return to mitigate the risk of economic hardship and in turn reduce the risk of re-offending. This failure in our view does constitute inadequate reasoning and amounts to a material error of law by the Judge regarding her assessment of whether there would be very significant obstacles to the appellant’s integration on return to Portugal.
16. In reaching this view, we take into account that the decision does not address the provision of potential
welfare benefits which the appellant may well be able to access on return to Portugal.
17. In the circumstances, we allow the Secretary of State’s appeal and set aside the decision of First-tier
Judge Oxlade. Having heard submissions from Ms Gilmour and Mr Roberts, we are satisfied that this matter should be re-made in the Upper Tribunal on a date to be fixed. All other findings are preserved in relation to the evidence that is required for re-making.
18. We anticipate there will be a need to hear evidence with regard to whether in fact the appellant would be entitled to access any Portuguese welfare provision should he be returned to Portugal. We note he is a man who is nearly 60 years old. We do not know what are the criteria which would pertain to his

3

ability to access the welfare state or welfare benefits and therefore that is a matter upon which evidence should be heard, but we do not want to be prescriptive and any relevant evidence with regard to his ability to access financial resources on his return which addresses the economic hardship point will be relevant to the re-making.
Notice of the decision
19. The decision of the First-tier Judge is set aside as it involved a material error of law, and the case will
be re-made in the Upper Tribunal. I direct that the appeal be re-made in the Upper Tribunal on a date to be fixed with a time estimate of 2 hours.
20. If either party wishes to adduce any further evidence, this must be served in electronic format on the other party and the Upper Tribunal at least 10 working days before the next hearing, accompanied by an application made pursuant to rule 15 (2A) of the Tribunal Procedure (Upper Tribunal) Rules 2008.
21. If the appellant wishes to give further oral evidence, or to call other oral evidence, he must provide a witness statement or statements capable of standing as evidence-in-chief, to be served in accordance with the direction [20] above.

K.A.Khan
Judge of the Upper Tribunal Immigration and Asylum Chamber

12 November 2024