Tribunal decisions

The decision

IN THE UPPER TRIBUNAL
IMMIGRATION AND ASYLUM CHAMBER
Case No: UI-2024-003703

First-tier Tribunal No: EA/09293/2022

THE IMMIGRATION ACTS

Decision & Reasons Issued:
On 6th February 2026

Before

UPPER TRIBUNAL JUDGE O’BRIEN

Between

ENTRY CLEARANCE OFFICER
Appellant
-and-

MR. NIHAT HELVACIOGLU (now known as MR. MEHMET FERIDOGLU)
Respondent

Representation:
For the Appellant: Ms S Lecointe, Senior Home Office Presenting Officer
For the Respondent: Ms S Jegarajah of Counsel (by direct access)

Heard at Field House on 18 November 2025

DECISION AND REASONS

1. For the sake of convenience I refer to the parties below as they were in the First-tier Tribunal.

2. The appellant is a national of Turkey born on 31 December 1969. The respondent appealed the decision of First-tier Tribunal Judge Bibi (‘the judge’) allowing the appellant’s appeal against the respondent’s decision of 19 August 2022, refusing his application for a Family Permit under Appendix EU (Family Permit) of the Immigration Rules.

3. Amongst the grounds of appeal, the respondent asserted that the judge made a material error by failing to make a finding on whether the Appellant’s criminal convictions in France should have been declared on his application as a matter of French law (paragraph (6) of the grounds).

4. The Upper Tribunal found that that was indeed a material error of law and retained the appeal for remaking. The error of law decision is annexed below.

5. The Upper Tribunal gave directions for the filing and service of further evidence and submissions by the parties. The appellant complied on 11 June 2025 with a 15-page supplementary bundle and skeleton argument. These were taken into account in addition to the material before the First-tier Tribunal.

6. Ms Jegarajah confirmed that she would not call the appellant but would proceed instead on the basis of submissions alone. Ms Lecointe did not object to my taking the appellant’s supplementary witness statement as read. Whilst I refer to the evidence and submissions below on to the extent necessary to understand my decision, I took them into account in their entirety.

7. In the error of law decision, the Upper Tribunal stated that the issue was: ‘is the appellant’s French conviction spent?’ In fact, given the basis upon which the application was refused, the issue is whether the French convictions were spent at the time of the application.

Consideration

8. The relevant provision of Appendix EU (Family Permit) is FP7(4):

(4) An application made under this Appendix may be refused on grounds of suitability where, at the date of decision, the entry clearance officer is satisfied that:

(a) It is proportionate to refuse the application where, in relation to the application and whether or not to the applicant’s knowledge, false or misleading information, representations or documents have been submitted (including false or misleading information submitted to any person to obtain a document used in support of the application); and the information, representation or documentation is material to the decision whether or not to grant the applicant an entry clearance under this Appendix;…

9. The application for an EU family permit asks, ‘At any time have you ever had any of the following, in the UK or any other country?’ A list follows that includes amongst other things criminal convictions. In answer to this question, the Appellant disclosed that he had been sentenced for a ‘fraud case’ and fined, and that this had been in January 2005.

10. A Police National Computer (PNC) record of the Appellant’s convictions shows that the Appellant was convicted on various occasions in France and in the UK between 2000 and 2008. In particular, the PNC records a conviction on 21 September 2000 in Caen for which he was sentenced to 4 months’ imprisonment wholly suspended. In his supplementary witness statement, the appellant states that the conviction was for failing properly to register workers. The PNC entry seems to suggest that the conviction had an immigration element; however, that is immaterial for the purposes of this decision. Of more relevance is the fact that the suspended sentence was activated on 18 December 2001 when the appellant was convicted in Boulogne sur Mer of an apparently similar offence and sentenced to 5 months’ imprisonment. It is not clear whether the two sentences were to run concurrently or consecutively; however, again this is immaterial for the purposes of these proceedings. What is relevant is the fact and date of the appellant’s French convictions.

11. The appellant asserts in his supplementary witness statement that the 2001 conviction was spent at the time of his application (paragraph 10), and more specifically that ‘Under French law, because the sentence was under one year and there have been no further convictions, this conviction was considered spent and automatically removed from my criminal history five years later, which would be in, or around 2006’ (paragraph 12). He has now obtained a French criminal records certificate issued on 19 May 2025 which shows that there were then no convictions included in the appellant’s French criminal record.

12. Ms Jegarajah, in her supplementary skeleton argument, submits the following:

‘4. As can be seen from page 9 of the respondents bundle, the French criminal records certificate issued on 19 May 2025, can be easily verifiable on https://casier-judiciaire.justice.gouv.fr/verif

5. The document has been translated by a certified translator, see page 15 of the bundle. Bulletin No 3 confirms that there is no longer any record of any criminal convictions.

6. The Respondent’s convictions had been spent by the date of the relevant application that is by 5 July 2020. In 2001, the Respondent was convicted in France in relation to administrative errors concerning employment records. He was sentenced to five months imprisonment.

7. Under French law, where the sentence was under one year the conviction was considered spent and automatically removed from my criminal history five years later, which would be in, or around 2006.

8. A 5-month custodial sentence is deemed to be a correctional conviction under French law.

9. According to Articles 769 and 770 of the Code of Criminal Procedure, and the rules for criminal record management a custodial sentence (without a suspended sentence) of less than 1 year becomes automatically spent after 5 years, provided that no new convictions are recorded during that period and there have been no repeat offending. A 5-month imprisonment sentence, would be automatically expunged from the criminal record 5 years from the date the sentence was fully served or completed. This is based on a provisional assessment of the law, but a French law has been instructed to provide an opinion. This has been difficult to investigate due to the age of the convictions but the final opinion will be produced forthwith.’

13. The respondent accepted in her application for permission to appeal against the judge’s decision that her Guidance, ‘EU Settlement Scheme Suitability Requirements’, extant at the date of decision provided that applicants did not need to declare spent convictions. The appellant asserts that his French convictions are (and were at the date of application) spent. Given that the convictions appeared on his PNC at the time of the respondent’s enquiries, and that the entry for the 2001 conviction states that it will be weeded from the French register on 19 February 2002, I am satisfied that the burden of proving that issue lies on the appellant.

14. There are a number of problems with the appellant’s case. First, in his witness statement he fails to deal with his conviction in 2000. Even if what he said about his 2001 conviction were true, he certainly did reoffend after his 2000 conviction. He does not say when the earlier conviction would in the circumstances be considered spent. He does not in any event claim any expertise in French law.

15. I accept that the convictions were spent by the time of the 15 May 2025 certificate. However, that does not establish when the convictions became spent. Ms Jegarajah submits that both became spent 5 years after completion of their respective sentences. That would, if correct, have been around 18 April 2006 and 18 May 2006 respectively. However, as she recognises, French law is a matter of fact to be proved by expert evidence (Hussein and Another (Status of passports: foreign law) [2020] UKUT 00250 (IAC)). No such evidence has been provided.

16. Consequently, I am not satisfied on balance that the appellant’s French convictions were spent at the date of the decision, let alone the application.

17. It has not been argued that the appellant could succeed in any event on the basis that he reasonably believed the convictions to be spent when he completed the application. I would not have been able to accept that submission. Had the appellant wished to persuade me that that was the case, first he should have said so expressly in his evidence and second he would have needed to make arrangements to give evidence, either remotely from a country in which that was permissible, or by seeking temporary admission by the respondent to do so in question.

18. For these reasons, the appeal fails and is dismissed.

Notice of Decision

1. The Judge’s decision involved the making of an error of law.

2. The decision is remade and the appeal is dismissed.

Sean O’Brien
Judge of the Upper Tribunal
Immigration and Asylum Chamber

3 February 2026

IN THE UPPER TRIBUNAL
IMMIGRATION AND ASYLUM CHAMBER
Case No: UI-2024-003703

First-tier Tribunal No: EA/09293/2022

THE IMMIGRATION ACTS

Decision & Reasons Issued:

…………………………………

Before

UPPER TRIBUNAL JUDGE O’BRIEN
DEPUTY UPPER TRIBUNAL JUDGE RHYS-DAVIES

Between

ENTRY CLEARANCE OFFICER
Appellant
-and-

MR. NIHAT HELVACIOGLU (now known as MR. MEHMET FERIDOGLU)
Respondent

Representation:
For the Appellant: Ms. S. Rushforth, Senior Home Office Presenting Officer
For the Respondent: Ms. S. Jegarajah of Counsel (by direct access)

Heard at Cardiff Civil Justice Centre on 20 March 2025 (Hybrid)

DECISION AND REASONS

1. For the sake of convenience we shall refer to the Parties as they were in the First-tier Tribunal.

2. The Appellant is a national of Turkey born on 31 December 1969. The Respondent appeals, with the permission of First-tier Tribunal Judge Saffer against the decision of First-tier Tribunal Judge Bibi (‘the Judge’), following a hearing at Taylor House on 25 June 2024. The Judge allowed the Appellant’s appeal against the Respondent’s decision of 19 August 2022. The Respondent’s decision was a refusal of the Appellant’s application for a Family Permit under Appendix EU (Family Permit) of the Immigration Rules.

The Grounds of Appeal

3. The grounds assert that the Judge erred as follows.
a. The Judge made a material misdirection in law when finding that the Appellant did not have to declare his criminal convictions on his application form, and in reaching that finding, applied an old version of the Respondent’s guidance to caseworkers, rather than the current version. See paragraphs (2) – (5) of the grounds. We referred to this during the hearing as “ground 1(a)”;

b. The Judge made a material error by failing to make a finding on whether the Appellant’s criminal convictions in France should have been declared on his application as a matter of French law (paragraph (6) of the grounds). We referred to this at the hearing as “ground 1(b)”;

c. The Judge made a material misdirection in law when finding that the Appellant had provided a valid document with his application. The passport relied on when the application was made was later reported lost or stolen and the Appellant did not inform the Respondent of this (paragraph (7) of the grounds: “ground 2”;

d. The Judge made a material misdirection in law by failing to take account of the fact that there is an exclusion order in place against the Appellant, so that his application was bound to be refused in any event (paragraph (8) of the grounds: “ground 3”.

4. Permission was granted on all grounds.

5. There was no rule 24 response.

The Hearing

6. The error of law hearing was listed at Cardiff Civil Justice Centre. We were present in the hearing room and so was Ms. Rushforth. Ms. Jegarajah joined remotely via CVP, on her application. The Appellant’s wife also joined remotely to observe. The technology held up well. We are satisfied that the hybrid hearing did not impinge on the fairness of proceedings.

7. Ms. Jegarajah confirmed that the appeal was opposed.

8. Having read the papers beforehand, we expressed a preliminary view to the Parties that ground 1(b) appeared to be the Respondent’s best point, though we would not restrict Ms. Rushforth in her submissions.

The Submissions

9. Ms. Rushforth relied on the grounds as a whole, although she accepted on reflection that 1(b) was probably her best point and spent little time on the others.

10. In respect of 1(b), she argued the Family Permit application form requires the Appellant to set out any convictions in the UK or elsewhere. The Respondent’s case is that because the Appellant failed to do so, he had submitted “false or misleading information”. The Respondent’s position before the Judge was that all convictions need to be declared in that form, whether spent or not, and that the Appellant’s failure to declare all his convictions means that he does not meet the suitability provisions of Appendix EU (Family Permit).

11. The Respondent’s alternative position before the Judge was that if spent convictions did not need to be declared by the Appellant (notwithstanding the wording of the application form), then it was for the Appellant to prove that any convictions not declared on that basis, were in fact spent. Further, the question of whether a foreign conviction is spent or not is to be determined by reference to the law of the country in which the individual was convicted.

12. The Respondent contends that the Judge found that the Appellant’s convictions in England and Wales were spent at the date of application, and so did not need to be declared on the application form, but then failed to address the French convictions adequately or at all.

13. Having heard Ms. Rushforth, we invited Ms. Jegarajah’s submissions in reply to ground 1(b) only.

14. We have to say that we found the Appellant’s case on ground 1(b) to be fluid and required Ms. Jegarajah (who had appeared below) to clarify her case on several occasions, including on the matter of what, if anything, had been agreed before the Judge about the French convictions.

15. Ms. Jegarajah initially contended that the Respondent had agreed at the hearing below that the French convictions were spent, and that all Parties had proceeded on that basis. Ms. Jegarajah then accepted that there had been no express concession to that effect by the Respondent and that the question of whether or not the French convictions were spent was in issue before the Judge.

16. Ms. Jegarajah also initially accepted that the Appellant bore the burden of proving that any conviction was spent. When we asked Ms. Jegarajah what evidence there had been before the Judge to prove that the French convictions were spent, she submitted that those had been her instructions. Further and alternatively, she argued that as the most recent French conviction dates from 2001, they must all, on balance, be spent. Ms. Jegarajah contended that the Judge must have accepted this to be correct and that the Judge did not need to set out reasons for every part of the Decision.

17. However, when we pressed her on the consequences of her concession that the Appellant bore the burden of proof, she argued that once the issue of whether a conviction was spent was raised, it was for the Respondent to prove it was not, because it would be easier for the Respondent, given the disparity between the Parties’ resources.

18. We thank the advocates for their helpful submissions.

The Law

19. Although the Respondent’s decision letter does not identify the relevant provision of Appendix EU (Family Permit) by paragraph number, it is FP7(4):

(4) An application made under this Appendix may be refused on grounds of suitability where, at the date of decision, the entry clearance officer is satisfied that:

(a) It is proportionate to refuse the application where, in relation to the application and whether or not to the applicant’s knowledge, false or misleading information, representations or documents have been submitted (including false or misleading information submitted to any person to obtain a document used in support of the application); and the information, representation or documentation is material to the decision whether or not to grant the applicant an entry clearance under this Appendix;…

Decision

20. We are satisfied that the Judge erred as pleaded in ground 1(b).

21. The application for an Appendix EU (Family Permit) asked an open question (see pp86-87 of the bundle prepared for the Upper Tribunal): “at any time have you ever had any of the following, in the UK or any other country?”. A list follows that includes: criminal convictions; driving penalties (with examples given) ; arrest or charge for which you currently on, or awaiting, trial; a caution, warning, reprimand or other penalty; a civil court judgment (with examples given); and a civil penalty under UK immigration law. In answer to this question, the Appellant disclosed that he had been sentenced for a “fraud case” and fined, and that this was in January 2005.

22. A Police National Computer record of the Appellant’s convictions, which was in evidence before the Judge, shows that the Appellant’s answer was not accurate, as he was convicted on various occasions in France and in the UK between 2000 and 2008: pp130-138 of the bundle before us.

23. It is clear from the Respondent’s decision that the Respondent relied on Appellant’s failure to disclose all of his convictions in the UK and in France, contrary to the requirements of the application form. The Respondent maintained that stance in the Respondent’s Review. The Judge notes this at [2] – [5], referencing the French convictions at [3].

24. Turning to the question of who bears the burden of proving a conviction is spent, we are satisfied that it falls on the Appellant. The Appellant is the one making the assertion “these convictions are spent, so I do not need to declare them”. In the absence of any authority to the contrary, the fundamental principle of “he who asserts, must prove” applies. We note here that it has never been the Appellant’s case that he had an honest, but mistaken, belief that his convictions were all spent.

25. As Ms. Jegarajah ultimately accepted before us, there was no concession to the Judge by the Respondent that the French convictions were spent. It was therefore an issue for the Judge to determine.

26. From [16], under the heading “Findings”, the Judge sets out both Parties’ submissions on the various issues before her, as well as her findings. The relevant paragraphs for ground 1(b) are at [29] – [37] and [41].

27. Unfortunately, the Judge, having recorded Ms. Jegarajah’s submissions at [35] that an applicant is only required to “declare past criminal convictions that appear in their criminal record in accordance with the law of the State of conviction at the time of the application” and at [36] that “… all [the Appellant’s] convictions are spent pursuant to the Rehabilitation of Offenders Act 1974…”, proceeds without more to finding “I accept the arguments of Ms. Jegarajah that the Appellant’s convictions were spent…” at [41].

28. As the Appellant accepts before us, the Rehabilitation of Offenders Act 1974 has no bearing on whether the French convictions are spent. That is a matter of French law and the Judge did not address it.

29. In this case, is difficult to see how the Judge could have been persuaded that the French convictions were spent, as the Appellant had submitted no evidence of French law, which is a matter of fact to be proved: Hussein and Another (Status of passports: foreign law) [2020] UKUT 00250 (IAC).

30. Indeed, such limited evidence as there was about the French convictions in the PNC printout arguably points towards the French convictions not being spent. The entry for the latest states “conviction to be weeded from the French register on 19/02/2049”. Be that as it may, the key point is that the Judge did not address the issue adequately or at all.

31. We find that this is a material error of law as it goes to one of the main issues in the appeal before the Judge: whether or not the Appellant meets the suitability requirements. We are not satisfied that the Decision would inevitably have been the same in any event had the error not been made.

32. The remaining grounds can be dealt with briefly.

33. Ground 1(a) does not reveal an arguable error of law, let alone an arguably material one. The updated guidance referred to in this ground states that caseworkers may consider evidence of criminality even if not declared by an applicant. This has no relevance to whether or not the Appellant (or any applicant) is obliged to declare convictions in the first place.

34. Ground 2 does not reveal an arguable error of law either. As we pointed out to Ms. Rushforth during the hearing, Appendix EU (Family Permit) requires the Appellant to produce “required proof of identity and nationality” (FP5). Annex 1 to Appendix EU (Family Permit) states that for non-EEA citizens such as the Appellant, the required proof is “their valid passport”. Annex 1 goes on to add that “’valid’ here means that, at the date of application, the document is genuine and has not expired or been cancelled or invalidated”. In this appeal, the Appellant’s application was made on 5 July 2020. There is no suggestion that the passport relied on in that application was not “valid” at that time. It was only later that the passport was reported lost or stolen. Contrary to Ground 2, a failure to inform the Respondent that a passport is later lost or stolen does not appear in Appendix EU (Family Permit) to have any consequence in terms of rendering the application defective in any way, provided it was valid “at the date of application”.

35. The fundamental difficulty with Ground 3 is that there is no indication at all that the Respondent sought to rely on this point before the Judge. The Respondent’s decision says nothing about an exclusion order. The Respondent’s Review also says nothing about it. There is no indication in the Judge’s Decision that it was a live issue before her. Ms. Rushforth had to accept that it was not. We invited Ms. Rushforth’s attention to what is said in Lata (FtT: principal controversial issues) [2023] UKUT 00163 (IAC), regarding the Parties’ duty to identify the issues for the Judge to consider and the prospects of success on appeal to this Tribunal with an issue not raised below (see [34] of Lata). Ms. Rushforth candidly accepted she was in difficulty and did not wish to pursued the point. In the circumstances, we find that the Judge did not err by failing to deal with a point not raised for her to determine.

36. By way of a post-script for Ground 3, the day after the hearing the Tribunal received an unsolicited email from Ms. Jegarajah (copied to the Respondent), containing a link said to be the guidance for caseworkers regarding exclusion orders. Unsolicited post-hearing submissions are not an appropriate way to conduct proceedings, for reasons which should be obvious. In light of what we have found above, we have not taken this email into account and did not consider it necessary to invite further submissions from Ms. Rushforth, nor to reconvene the hearing.

37. In the event we found there to be a material error of law, the Parties were both content for the appeal to be retained in the Upper Tribunal, given no oral evidence was called previously and the issue is narrow: are the Appellant’s French convictions spent?

Notice of Decision

1. The Judge’s decision involved the making of an error of law.

2. The Judge’s decision is set aside and Respondent’s appeal is allowed.

3. The Appellant must file and serve any further evidence and skeleton argument by 4:00pm on 15 May 2025

4. The Respondent must file and serve any further evidence or argument by 4:00pm on 29 May 2025

5. The Appellant must file and serve a hearing bundle by 4:00pm on 5 June 2025

6. The appeal will be relisted in the Upper Tribunal, before UTJ O’Brien if possible, on the first available date after 19 June 2025 ELH ½ day.

A. Rhys-Davies
Deputy Judge of the Upper Tribunal
Immigration and Asylum Chamber

17 April 2025