Tribunal decisions

The decision

IN THE UPPER TRIBUNAL
IMMIGRATION AND ASYLUM CHAMBER
Case No: UI-2024-005195

First-tier Tribunal No: EA/50659/2023
LE/01512/2024

THE IMMIGRATION ACTS

Decision & Reasons Issued:

14th July 2025

Before

UPPER TRIBUNAL JUDGE LANDES

Between

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Appellant
and

PRINCE UMOH
(ANONYMITY ORDER NOT MADE)
Respondent

Representation:
For the Appellant: Mrs Arif, Senior Home Office Presenting Officer
For the Respondent: Mr Malik, Counsel

Heard at Birmingham Civil Justice Centre on 29 April 2025

DECISION AND REASONS
1. The Secretary of State for the Home Department (“the SSHD”) appeals, with permission granted in the First-Tier Tribunal, against the decision of a judge of the First-Tier Tribunal (“the judge”) promulgated on 3 July 2024 allowing the appeal of Mr Umoh (an Italian national) against the refusal of the SSHD to revoke the deportation order made against him. Revoking the deportation order means that Mr Umoh is no longer excluded from entering the UK by operation of law. The revocation does not itself give permission for Mr Umoh to enter the UK or remain in the UK.
2. The Withdrawal Agreement, which the UK entered with the EU on leaving the EU, provides that where, as here, the conduct of the EU national relied on occurred before the UK left the EU, then that conduct must be considered in accordance with the provisions of the 2004 Free Movement Directive. Article 27 of that Directive allows for freedom of movement and residence to be restricted on grounds of public policy, public security or public health but the personal conduct of the person concerned must represent a genuine, present and sufficiently serious threat affecting one of the fundamental interests of society. Justifications relying on considerations of general prevention shall not be accepted, and measures must comply with the principles of proportionality and be based exclusively on the personal conduct of the individual. Previous criminal convictions are not in themselves to constitute grounds for taking such measures. Article 32 of the Directive permits excluded persons to apply to lift the order after a reasonable period, depending on the circumstances, and in any event after three years from enforcement of the final exclusion order, by putting forward arguments to establish that there has been a material change in the circumstances which justified the decision ordering the exclusion.
3. Mr Umoh was deported on 22 June 2015. He entered the UK in breach of the order, served a prison sentence for so doing, and left the UK on 3 November 2016. He applied unsuccessfully to revoke the order more than 5 ½ years later. On appeal, the judge concluded that there had been a material change in circumstances, that Mr Umoh had successfully rehabilitated, not having committed any further offences, turning his life around, holding down employment, educating himself, and being remorseful about the offending and its impact on the victims, that the circumstances were now radically different, that he no longer presented a sufficiently serious threat in terms of reoffending or other misconduct and that the decision to deport him was no longer proportionate.
4. The SSHD has appealed against that decision. The test for me to decide is whether the judge made an error of law, not whether I or another judge might have decided the appeal differently or expressed themselves differently, bearing in mind that different tribunals without illegality or irrationality may reach different conclusions on the same case (see Ullah v Secretary of State for the Home Department [2024] EWCA Civ 201 at [26]).
5. I have concluded for the reasons I explain below that the judge did not make any error of law and so I dismiss the SSHD’s appeal.
The grounds of appeal
6. There is only one ground, failing to give adequate reasons for findings on a material matter. There may be a debate whether there are three or four separate points raised by the grounds, but for these purposes I adopt Mr Umoh’s rule 24/skeleton argument response identifying four separate points which I summarise:
(i) The judge failed to make an explicit finding that Mr Umoh did not pose a threat to public policy, public security or public health, nor that his deportation was disproportionate (paragraph 3);
(ii) The judge failed to consider that low risk is not the same as no risk (paragraph 4);
(iii) (which links with the second point) The judge failed to consider the seriousness of the consequences of re-offending in line with Kamki [2017] EWCA Civ 1715 (paragraph 4);
(iv) The Bouchereau principle recognised that whilst in general the finding of a genuine, present and sufficiently serious threat affecting one of the fundamental interests of society implied the existence in the individual concerned of a propensity to repeat the conduct constituting such a threat in the future, it was possible that in an extreme case that threat might be evidenced by past conduct causing deep public revulsion. Crimes such as the index offence involving knives were of deep concern to society and fell into that category so that the present threat was evidenced by Mr Umoh’s past conduct (paragraphs 5 – 7).
The hearing
7. Mrs Arif submitted that the judge had failed to give adequate reasons. I asked her whether on the first part of the grounds the judge had not, at [22] of his decision made the questioned findings. She said that it tied in with the second point. The judge did not say that Mr Umoh posed no threat, and given the finding in the OASys report that he posed a medium risk of harm to the public, the judge needed to deal with the point, and importantly, (the third point in the grounds), deal with the significance of re-offending when the offence was a serious and a violent one. We identified that the relevant passage from Kamki relied upon was [16] – [18]. Mrs Arif said that the main point was that the judge should have looked at the seriousness of the consequences of re-offending when considering the risk Mr Umoh posed, and provided reasons why, despite the seriousness of the potential consequences of re-offending, he was allowing the appeal.
8. I asked Mrs Arif about the fourth ground, the Bouchereau principle, because I said that did not appear to have been part of the SSHD’s case before the judge or indeed at any stage before the grounds of appeal. She agreed that it was not put specifically by the SSHD as an issue but that it was a matter of principle which needed to be considered. I asked her whether she was saying that it was a Robinson obvious point which could be considered, and I referred her to Secretary of State for the Home Department v George [2024] EWCA Civ 1192 which would suggest it was not such a point. She said she had not extensively analysed the Robinson obvious principle and could not comment further.
9. Mr Malik relied on his skeleton argument. He said that the judge had made the finding which was required. There was no requirement to find no risk and it was difficult to see that any tribunal could ever find that there was no risk. Kamki was not authority for the proposition that the failure specifically to consider both elements of the risk was an error of law. We knew the judge had looked at the OASys report because he had taken into account all the documents and he had in effect looked specifically at the factors which the report had said would increase or reduce the risk of serious harm (R 10.3 and R 10.4 of the report). The judge considered, and explained why, he found Mr Umoh had successfully rehabilitated.
10. Mr Malik (who had appeared before the First-Tier Tribunal) agreed with Mrs Arif that the SSHD’s representative below had not advanced the Bouchereau principle. It was not a Robinson obvious point, “obvious” and arguable with strong prospects of success, and this case was not about the Refugee Convention. Mr Malik referred me to [75] of George. Whilst the seriousness of knife crime should not be diminished, this was not the sort of case such as grave offences of sexual abuse or violence against young children referred to by Singh LJ in Secretary of State for the Home Department v Robinson (Jamaica) [2018] EWCA Civ 85. There had been no evidence about it and no submissions about it, but the SSHD somehow invited the Upper Tribunal to take judicial notice that offences involving knives were those which caused deep public revulsion.
11. I reserved my decision.
Discussion and conclusions
Points (i) – (iii) of the grounds
12. The judge made an explicit finding in his conclusion at [22] “the appellant no longer presents a sufficiently serious present threat in terms of reoffending or any other type of misconduct and that the decision to deport him is no longer proportionate.”
13. That was all the judge needed to conclude. The Free Movement Directive and the regulations modelled on it refer to an individual’s personal conduct representing a “genuine, present and sufficiently serious threat”. That is, in effect, what the judge said. The judge did not need to make a finding that there was no threat (point (i) of the grounds).
14. Points (ii) and (iii) of the grounds should be looked at together. The judge nowhere referred in his decision to Mr Umoh being a low risk of reoffending, he found that Mr Umoh had successfully rehabilitated [15]. That someone has successfully rehabilitated, means that they have returned to the place where society expects them, and indeed everyone else, to be (see the discussion in HA (Iraq) v Secretary of State for the Home Department [2022] UKSC 22 at [54] – [57]). It does not mean that there is zero risk of offending, indeed it is difficult to say that anyone is at zero risk of offending whatever the circumstances which may arise.
15. The Court of Appeal in Kamki did not decide a point of principle because counsel before them conceded that in applying the EEA Regulations it was legitimate both to look at the likelihood of re-offending and at the seriousness of the consequences, the court describing this as a realistic concession (see [16] and [17]). I respectfully agree. The combination of the likelihood of an adverse event occurring and the risk of harm if the event occurs is an obvious way to consider risk. I observe that the Court of Appeal did not say it was the only way of considering risk, or the only way of considering whether someone posed a genuine, present, and sufficiently serious threat.
16. It is right that the judge did not expressly say using those words that he had considered the consequences of re-offending. He was however well aware of the seriousness of Mr Umoh’s offence and of its consequences. He repeated the criminal judge’s sentencing remarks which included the impact on the victims of the offences [2]. He reminded himself of the points made by the SSHD in their decision [5] which included the assessment that Mr Umoh posed a medium risk of harm to the public, and the SSHD’s conclusion in the decision letter that he continued to pose a risk of harm to the public, or a section of the public [6]. He took into account all the evidence and submissions [13]. He specifically explained that when he made the assessment he kept the seriousness of Mr Umoh’s offending and of his role at the forefront of his mind [14] and appreciated (see [3] and [15]) that Mr Umoh had reoffended, albeit in a completely different way, by entering the UK in breach of the order (paragraph 4 of the grounds).
17. The judge’s ultimate finding was that there had been a material change in circumstances. The finding of the judge who dismissed Mr Umoh’s appeal against deportation in March 2015, was that although Mr Umoh was a low risk of reoffending the risk of harm remained a medium risk [40 of her decision]. She said “The Secretary of State assessed that risk as too high and I have to agree given the state the appellant has reached in his rehabilitation. He still has some way to go in taking responsibility for his criminal behaviour and its impact on the victims and still seems more concerned about what his parents think of his behaviour than anything else.” Bearing this in mind, the judge could only say that there was a material change of circumstances if Mr Umoh no longer posed a medium risk of serious harm.
18. It is right that considering the risk of serious harm in the way the Probation Service do is different from assessing the seriousness of the consequences of offending if a person re-offends, but their assessment includes both the risk of violent re-offending, and assessing the seriousness of the consequences of similar re-offending by considering the nature of the behaviour the subject of the index offence (see the “R” section in the OASys report). In their OASys report on Mr Umoh dated 9 January 2015, the Probation Service assessed him at that time as posing a medium risk of serious harm to the public that is “there are identifiable indicators of risk of serious harm. The offender has the potential to cause serious harm but is unlikely to do so unless there is a change in circumstances, for example, failure to take medication, loss of accommodation, relationship breakdown, drug or alcohol abuse.” The probability of proven violent-type reoffending (the OVP score) was described as 11% at one year and 18% at two years, which fell into the low category. In section 10 of the report, it was said that those who were at risk were the public “those of his own age group”, that the nature of the risk was “robberies, thefts with use of assaults and weapons in view of knives being used on this occasion”. The risk “does not present as imminent because he does not have a pattern of offending” the circumstances which were likely to increase the risk were “when experiencing financial difficulties, negative peer group association”. The factors which were likely to reduce the risk were “improved consequential thinking, thinking skills, victim awareness, non contact order with co-defendants.”
19. I agree with Mr Malik that the factors the judge considered explain that he had concluded that Mr Umoh was no longer a meaningful risk of serious harm to the public. He expressly addressed the factor of experiencing financial difficulties, finding that Mr Umoh had faced challenging circumstances being without work and a proper home for periods of time and had not offended, finding there to be good evidence that he had matured and developed a proper attitude, and that significant maturity was a very significant development when compared to the situation before the previous judge [16]. Explaining his conclusions about his satisfaction that Mr Umoh had had the employment he claimed, he found that there was evidence that he was committed to a lawful lifestyle and that there was no longer any operative risk factor arising from any compulsion for financial gain [17]. Mr Umoh’s attitude had also changed in terms of applying himself to vocational education to a relatively high level [18].
20. The judge also considered Mr Umoh’s thinking and victim awareness, not only his changed thinking by virtue of commitment to a lawful lifestyle and developing himself in lawful ways such as applying himself to education, but also the courses he did in prison [18] and the fact that there was a material change in that Mr Umoh was now clearly remorseful, the judge accepting the evidence that Mr Umoh frequently referred to his regret at the offending and the impact on the victims [21].
21. The only factor which the judge did not specifically address which was mentioned in the OASys report as a factor likely to increase or reduce the risk of serious harm was association with offending peers, but of course Mr Umoh is no longer the young man of 18 who committed the offending, or even the young man of 22 who left the UK on the second occasion, but 30 at the date of the hearing before the judge [1], and had lived in Italy and Ireland [3], and therefore away from former associates, for almost eight years, and the judge found, as I have indicated, he was committed to a lawful lifestyle and developing himself through education.
22. The judge also addressed the reasons relied on by the SSHD in the decision letter for refusing to revoke the deportation order [5] and [6].
23. The judge therefore explained adequately why there was a material change of circumstances and Mr Umoh had rehabilitated, as opposed to the position at the time of the first appeal when he still had some way to go. It is to be remembered that the focus of the Directive is considering the personal conduct of the individual as representing a genuine, present and sufficiently serious threat. A previous criminal conviction does not in itself constitute grounds for taking such measures. A person whose rehabilitation is genuine, sustained, and sustainable, as the judge found Mr Umoh’s rehabilitation to be, has brought themselves back to the level that everyone in society is expected to be and so (unless the Bouchereau principle applies) represents no genuine, present and sufficiently serious threat affecting one of the fundamental interests of society as they no longer pose a meaningful risk of serious harm and therefore do not pose the requisite threat.
24. I conclude that the first three points in the grounds demonstrate no error of law on the part of the judge. His reasons were full and adequate. I observe that the SSHD’s policy on revoking a deportation order made on public policy and public security grounds explains that examples which may demonstrate a material change of circumstances that mean the criteria for making an order are no longer satisfied include where the applicant was relatively young when they were deported and a reasonable time has passed, they now have a steady job and have avoided further trouble, and where the applicant has clearly rehabilitated. The judge made those findings.
Point (iv) of the grounds - the Bouchereau principle
25. The SSHD is right in the grounds to quote Robinson (Jamaica) as authority for the Bouchereau principle still being good law and that the Court of Justice of the European Communities reiterated that principle in 2018. It is important however to understand what that principle is. The Court of Appeal in George relied on Singh LJ’s exposition of the principle in Robinson (Jamaica) and it is worth quoting in full. Singh LJ said at [71] “It is important to recognise that what the ECJ was there talking about was not a threat to "the public" but a threat to "the requirements of public policy". The latter is a broader concept. At para. 28 the ECJ said that past conduct can only be taken into account in so far as it provides evidence of personal conduct constituting a "present threat to the requirements of public policy." As the ECJ said at para. 29, "in general" that will imply that the person concerned has a "propensity to act in the same way in the future" but that need not be so in every case. It is possible that the past conduct "alone" may constitute a threat to the requirements of public policy. In order to understand in what circumstances that might be so, I consider that it is helpful and appropriate to have regard to the opinion of the Advocate-General in Bouchereau, when he referred to "deep public revulsion". That is the kind of extreme case in which past conduct alone may suffice as constituting a present threat to the requirements of public policy” and at [85] I am also of the view that the sort of case that the ECJ had in mind in Bouchereau, when it referred to past conduct alone as potentially being sufficient, was not the present sort of case but one whose facts are very extreme. It is neither necessary nor helpful to attempt an exhaustive definition but the sort of case that the court was thinking of was where, for example, a person has committed grave offences of sexual abuse or violence against young children”.
26. It is therefore not quite right to say as the SSHD does in the grounds that the principle encompasses crimes which are of deep concern to society, rather they are “extreme cases” of “deep public revulsion”. Deep concern and deep public revulsion are not self-evidently the same thing.
27. The Bouchereau principle, it is acknowledged by Mrs Arif, was not argued before the judge, who did not describe it as an issue which rose for consideration [5]. It did not form part of the SSHD’s original reasons for deciding to deport Mr Umoh and from reading the judge’s decision in 2015 it did not form part of the argument before her either.
28. In Lata (FtT: principal controversial issues) [2023] UKUT 163 a panel including the President of the Upper Tribunal held “Unless a point was one which was Robinson obvious, a judge's decision cannot be alleged to contain an error of law on the basis that a judge failed to take account of a point that was never raised for their consideration as an issue in an appeal. Such an approach would undermine the principles clearly laid out in the Procedure Rules” (headnote 7) and “A party that fails to identify an issue before the First-tier Tribunal is unlikely to have a good ground of appeal before the Upper Tribunal” (headnote 8). The case explains that the judge’s task is to deal with the issues which the parties have identified, not to trawl through the papers to see what all the potential issues could be.
29. The judge made no error therefore in not considering the Bouchereau principle as it was not part of the issues which the parties identified, unless it could be said to be Robinson obvious. As explained in George the principle in Robinson is “limited to points of refugee law which favour a person who claims to be a refugee, and which are “obvious” and arguable with “strong prospects of success” [75] as this was necessary to enable the UK to comply with their obligations under the Refugee Convention. Laing LJ explained that the principle had been extended in favour of the Secretary of State in a refugee case where it was obvious that the appellant was excluded from the protection of the Refugee Convention as a self-confessed torturer, but explained “there are obvious policy reasons why this principle should not be extended any further in favour of the Secretary of State.” She therefore concluded that the Court of Appeal could only consider the appeal based on its discretion to entertain points of law which were not argued below, i.e. it did not come within the Robinson obvious principle.
30. When it is considered that the Bouchereau principle involves “extreme cases” of “deep public revulsion” rather than simply a crime which is of deep concern to society it is not an obvious argument at all that Mr Umoh’s offending comes within the Bouchereau principle. It was very serious, two street muggings of phones from young people with the use of a knife causing fortunately not serious physical injury but psychological trauma, with the aggravating circumstances described in the sentencing remarks, and repeated at [2] which I take into account. Nevertheless, although Mr Umoh was the ringleader he had not offended before, and he was only 18. The offending was not gang related. This is simply not the type of case to which the principle applies. The Bouchereau principle does not fall to be routinely considered in every case; indeed it is often referred to as the Bouchereau “exception”. I observe that the public recognise that young men can commit very serious crimes for which they should be severely punished, but can also with greater maturity and reflection, rehabilitate and become useful members of society.
31. I conclude that the judge made no error of law in not considering the Bouchereau principle. The main reason is that it was not in issue before him or at the time of Mr Umoh’s deportation and this is not the type of case to which the Robinson obvious principle applies in favour of the SSHD as I have explained. Secondly if I am wrong and the Robinson obvious principle applies, it is not at all obvious that this is an “extreme case” of “deep public revulsion” indeed it does not fall into that category.
Conclusion
32. The judge therefore made no error of law. He gave adequate reasons for his findings and his decision stands.
Notice of Decision
The judge’s decision did not contain an error of law and stands. The SSHD’s appeal fails and is dismissed.

A-R Landes

Judge of the Upper Tribunal
Immigration and Asylum Chamber

9 July 2025