Tribunal decisions

The decision

IN THE UPPER TRIBUNAL
IMMIGRATION AND ASYLUM CHAMBER
Case No: UI-2024-004366

First-tier Tribunal No: HU/62112/2023

THE IMMIGRATION ACTS

Decision & Reasons Issued:
On the 12 August 2025

Before

UPPER TRIBUNAL JUDGE LANDES
DEPUTY UPPER TRIBUNAL JUDGE JOSHI

Between

ENTRY CLEARANCE OFFICER
Appellant
and

ADRIAN HOXHA
(Anonymity direction not made)
Respondent

Representation:
For the Appellant: Ms Simbi, Senior Home Office Presenting Officer
For the Respondent: Mr Gillard, Metro Immigration Specialists

Heard at Birmingham Civil Justice Centre on 2 May 2025

DECISION AND REASONS
1. The Entry Clearance Officer (“ECO”) appeals, with the permission of the Upper Tribunal, the decision of a judge of the First-Tier Tribunal (“the judge”) promulgated on 3 August 2024 allowing the appeal of the respondent (“Mr Hoxha”) against the ECO’s refusal, on 5 October 2023, on suitability grounds only, of his human rights’ claim arising from his application of 30 August 2023 for leave to enter the UK as the husband of the sponsor, Mrs Hysa, a Greek national, with leave to stay in the UK under Appendix EU. Mr Hoxha satisfied the eligibility grounds.
The grounds of appeal and the grant of permission
2. There was only one original ground, that the judge had materially erred by failing to correctly consider the suitability requirements of S-EC 1.4 of Appendix FM. It was said that the judge had taken the incorrect approach to Mr Hoxha’s cautions for motoring offences, having treated them as effectively spent, although they were not spent for immigration purposes. He had focussed on Mr Hoxha’s “good behaviour” by adherence to reporting restrictions and leaving the UK voluntarily rather than his cautions for motoring offences and his entries to the UK without leave.
3. The judge of the Upper Tribunal granted permission additionally on two different bases which he said were “Robinson obvious”:
(i) That the judge had erred in his consideration of paragraph 9.8.2 of the immigration rules by assessing the appeal against the criteria of making frivolous applications when the rule in force at the relevant time contained no such wording (the decision letter had also added that criteria);
(ii) That the judge had erred by assessing the appeal against S-EC 1.4 rather than S-EC 1.5 as per the decision letter.
4. A response was filed by Mr Gillard shortly after permission was granted engaging with not only the original grounds but also the points raised in the grant of permission.
The application to amend
5. An application to amend the grounds was made on 15 November 2024. The application was to amend the original ground (ground 1) and add grounds 2 and 3.
6. The proposed amendment to ground 1 was that the judge wrongly assessed the appeal against S-EC 1.4 which it was said was material because it informed his assessment. The part of the grounds which alleged failure by the judge to apply the provisions relating to spent convictions was withdrawn. The reference to S-EC 1.4 in the grounds was corrected to S-EC 1.5. It was added that the judge failed to consider why the offending behaviour (cautions for motoring offences not falling under S-EC 1.4) was conduct which demonstrated that Mr Hoxha’s exclusion was conducive to the public good and how the behaviour itself could contribute to character.
7. The proposed amendment making a new ground 2 was that the judge had made a mistake of fact and misapplication of paragraph 9.8.2 by conflating the allowed decision on the EUSS application with the withdrawn asylum claim Mr Hoxha had made including potentially conflicting evidence. Failure to consider this, it was said meant the judge had not fully engaged with the ECO’s position and so had failed to consider part 9 properly contrary to what was argued in the rule 24 response.
8. The proposed amendment making a new ground 3 was that if the ECO succeeded on ground 1, the finding that there was no public interest to be weighed against the interference to family life was inadequate and non-existent.
9. We considered that ground 1 was a straightforward amendment encompassing the basis on which the Upper Tribunal had granted permission to appeal and explaining the grounds already pleaded. Whilst we did not on the face of it consider that the error was capable of being a Robinson obvious one, Mr Gillard on behalf of Mr Hoxha had promptly engaged with the point in his rule 24 response and it was perfectly fair to allow the ECO to amend their grounds to encompass this point. We therefore granted permission to amend ground 1 as per the application.
10. We thought that ground 3 went without saying and an amendment was not necessary but for the avoidance of doubt, we also granted permission to amend in this respect.
11. Having discussed the terms of ground 2 with the representatives, we concluded that the amendment put forward by the ECO was on a factual basis which had not been raised at the hearing before the judge. The suggestion was that the basis both of Mr Hoxha’s asylum claim and the expressed reasons for its withdrawal were potentially inconsistent with what he had said to the judge deciding his EUSS appeal. That was a suggestion which should have been put to Mr Hoxha in cross-examination at the hearing before the judge. There was nothing in the judge’s decision to suggest that it was put, indeed [18] – [20] suggests the contrary, that the presenting officer simply relied on the making and then the withdrawal of the asylum application. Mr Gillard, who was acting for Mr Hoxha before the judge, confirmed that the suggestion of inconsistency was not put to Mr Hoxha. Accordingly we did not permit an amendment on this basis. The judge could not in fairness have decided whether there was a real inconsistency with what Mr Hoxha had said in his now withdrawn asylum claim and what he had said to the judge deciding his EUSS appeal unless either the presenting officer or the judge himself had put it to Mr Hoxha and heard his explanation.
12. We explained that we would allow the ECO to make an amendment to ground 2 that the judge had erred in his consideration of paragraph 9.8.2 of the immigration rules by assessing the appeal against the criteria of making frivolous applications when the rule in force at the relevant time contained no such wording. Whilst again we did not agree with the permission judge that it was capable of falling within the “Robinson obvious” criteria, Mr Gillard had engaged with the argument before the application to amend and we considered it to be fair to allow the ECO’s amendment in this respect.
Submissions at the hearing
13. We discuss the submissions out of sequence because when it came to arguing ground 2, that the judge had erred in his consideration of paragraph 9.8.2 of the immigration rules by assessing the wrong criteria, Ms Simbi said that she did not think it right to advance that ground as the judge had only mentioned “frivolity” because the ECO referred to it in the decision letter and it came from the Home Office policy at the time. Making a frivolous application was an example of aggravating circumstances and the judge had looked at matters on that basis.
14. As Ms Simbi did not advance ground 2, we were left with ground 1 (and ground 3 if ground 1 was made out).
15. Towards the conclusion of the hearing, we pointed out that the judge’s reference to S-EC 1.4 must simply be a typo. The judge must have had S-EC 1.5 in mind because S-EC 1.4 could not possibly have applied because S-EC 1.4 required not just convictions, but sentencing to a period of imprisonment which was clearly not applicable in this appeal. The judge nowhere referred to imprisonment as a criterion, rather referring more generally to conduct and behaviour justifying exclusion (which is the way S-EC 1.5 is framed). Ms Simbi agreed that she could not advance the point that the judge wrongly had S-EC 1.4 in mind rather than S-EC 1.5.
16. We have therefore considered the appeal on the original ground 1 slightly amplified as per the amendment, with references to S-EC 1.4 corrected to S-EC 1.5 and taking out the reference to the judge failing to apply the provision in the 2012 Act.
17. Ms Simbi submitted that the judge’s use of language, saying that it was not a serious motoring offence and that time had lapsed did not properly take into account that it was not spent for the purposes of immigration. We queried with Ms Simbi whether Mr Hoxha indeed received cautions for both offences, but she said that was the ECO’s position. She said that it was not only the cautions which were relevant but the entrance on more than one occasion without due leave and the issue of an application not being seen through to the end. She submitted that the judge should have considered whether the ECO had dealt with S-EC 1.5 properly in the decision letter. If not S-EC 1.5 would fall away. If the judge had thought the ECO had conducted a proper exercise, then that should stand even if the judge disagreed with the way it had been conducted. It was not up to the judge to take the balance himself and select factors he thought were relevant. We put to Ms Simbi that we thought that the judge was saying at [30] and [31] that this was not the sort of behaviour which came within S-EC 1.5. Ms Simbi responded that this behaviour did fall within the suitability guidance; the purpose of S-EC 1.5 was to capture conduct which by nature of its totality meant that a person’s presence was not conducive to the public good. Ms Simbi agreed that the factors in Mr Hoxha’s favour had not been looked at by the ECO.
18. Mr Gillard responded that the decision letter was deeply flawed and the ECO had not conducted a balancing exercise. He had not for example considered important factors such as Mr Hoxha’s compliance with immigration bail or that his cautions for motoring offences were some years ago and he had not committed any other offence. The judge undertook the balancing exercise as he was required to do. He had taken account of his negative behaviour, but Mr Hoxha had done what he should by leaving the UK and applying properly.
19. Ms Simbi replied that if the judge was right to conduct the balancing exercise, the question was whether he had weighed it correctly. There were a number of features which outweighed the positive behaviour and there were many factors against Mr Hoxha overall.
Discussion and conclusions
20. The grounds and the amended grounds which remain for consideration were based on the judge having wrongly focussed on Mr Hoxha’s good behaviour. Ms Simbi raised in submissions for the first time that the judge could only have allowed the appeal if there was in effect a public law error in the ECO’s conclusion that the exclusion of Mr Hoxha from the UK was conducive to the public good, and she said the judge had not made those findings. This was not the way either the grounds or the amended grounds were put, it would amount to a completely new ground, and we consider it is far too late to raise it at such a late stage.
21. We consider that the grounds as amended by the permitted amendments demonstrate no error of law. The judge did treat the appellant’s motoring offending seriously (see [28]). He did not discount the offending because it was treated as spent, as he recognised that it was not treated as spent for the purposes of immigration provisions. We observe that although the judge referred to “convictions” it might be said he was taking the case at its highest, as a caution is not in fact a conviction. The judge appreciated that the ECO was saying that it was not simply the cautions for motoring offending but also the poor immigration history that justified the exclusion [27], (indeed we observe the ECO had clearly said in the decision letter that the motoring offences on their own would not lead to a refusal on suitability grounds). That the judge did not specifically refer to entry without leave twice at [28] as opposed to entry without leave more generally or specifically to working without permission at [28] matters not, because in the history the judge specifically did refer to it (see [14] and [15]). It is trite law that the mere fact that a judge does not mention a specific piece of evidence does not mean that he overlooked it, even more so when he has specifically mentioned it earlier in the decision.
22. The judge had earlier not been satisfied that Mr Hoxha had made a frivolous application [19] and [20], so there was no need for him to take that application into account. The judge was aware and considered Mr Hoxha’s motoring offending and his poor behaviour and also considered positive points in his favour as he was entitled to do. He was entitled to do this because the Home Office guidance to which he referred at [29] makes clear that “you should balance factors in the individual’s favour against negative factors to reach a reasonable and proportionate decision.” Saying that the judge focussed on good behaviour or saying that he did not appreciate that it was conduct which could demonstrate that it was undesirable to grant Mr Hoxha entry clearance, or that he was selective, is a simple disagreement with the judge’s conclusions wrapped up as an error of law. The weight that the judge gave to particular factors was a matter for him. He committed no error of law.
23. We appreciate that we have found that it does not arise before us because it was not properly pleaded as a ground of appeal, but we consider that the judge was right to decide for himself whether the exclusion of Mr Hoxha from the UK was conducive to the public good. We note the contrast between the wording of S-EC 1.5 which makes no mention of the opinion of the ECO or the opinion of the Secretary of State and the wording of, for example section 3 (5) of the Immigration Act 1971 or section 40 (3) of the British Nationality Act 1981 which refer to the Secretary of State deeming, or the Secretary of State being satisfied.
24. We observe, as we did to Ms Simbi, following Mr Gillard’s submissions, that in any event the ECO appears not to have conducted the balancing exercise properly as, contrary to guidance, the ECO does not appear to balance any factors in Mr Hoxha’s favour. The paragraph refusing under S-EC 1.5 is very brief and appears to be an afterthought to the other part of the refusal.

Notice of Decision
The judge’s decision contains no error of law and stands. The ECO’s appeal fails and is dismissed.

A-R Landes

Judge of the Upper Tribunal
Immigration and Asylum Chamber

28 July 2025