Tribunal decisions

The decision

IN THE UPPER TRIBUNAL
IMMIGRATION AND ASYLUM
CHAMBER
Case No: UI-2024-005256

First-tier Tribunal No: DA/00061/2023

THE IMMIGRATION ACTS

Decision & Reasons Issued:
On 1 July 2025

Before

UPPER TRIBUNAL JUDGE MANDALIA

Between

Secretary of State for the Home Department
Appellant
and

Sergejus Aksiotovas
(No Anonymity Direction Made)
Respondent

Representation
For the Appellant: Ms S Simbhi, Senior Home Office Presenting Officer
For the Respondent: Mr S Hingora, instructed by Siddique Solicitors

Heard at Birmingham Civil Justice Centre on 4 April 2025
Decision and Reasons
Introduction
1. Although the appellant in the appeal before the Upper Tribunal is the Secretary of State for the Home Department, for ease of reference I continue to refer to the parties as they were before the First-tier Tribunal. Hereafter I refer to Mr Aksiutovis as the appellant and the Secretary of State as the respondent.
2. The appellant is a national of Lithuania. He arrived in the UK in 2013, aged 42. In February 2021, he was convicted at Wolverhampton Crown Court for an offence committed on 26 October 2019, of causing death by driving without due care and attention and whilst unfit through drink. On 26 March 2021 he was sentenced to a term of sixty-three months imprisonment.
3. On 2 November 2023 the respondent made a decision (served on 20 November 2023) to make a Deportation Order in accordance with the Immigration (European Economic Area) Regulations 2016 (“the 2016 EEA Regulations”). The appellant’s appeal against the respondent’s decision was allowed by First-tier Tribunal (“FtT”) Judge Athwal (“the judge”) for reasons set out in a decision promulgated on 21 October 2024.
4. The respondent claims the decision of the judge is vitiated by material errors of law. The respondent claims the judge found, at [21], that the appellant’s behaviour constitutes a threat to the fundamental interests of society. However, at paragraph [39], the judge found, having considered the sentencing judge’s remarks, the OASys assessment, and the appellant’s behaviour since being released, that the appellant does not pose a genuine and present threat. In reaching that conclusion the respondent claims the judge failed to have adequate regard to the fact that a ‘low risk’ is not the same as ‘no risk.’ Furthermore, the judge failed to have adequate regard to the fact that protective factors noted in the OASys assessment, such as the support of the appellant’s partner and/or children, are no longer present following the breakdown of his relationship with his partner, so as to increase the risk posed by the appellant.
5. The respondent also claims the judge failed to consider the seriousness of the consequences of re-offending in line with Kamki [2017] EWCA Civ 1715. The appellant had a previous conviction for being in charge of a motor vehicle with excess alcohol for which he was sentenced at the Black Country Magistrates Court, in March 2017 to, inter alia, a fine of £405 with his driving license endorsed with 10 penalty points. The seriousness of the appellant’s offending had escalated leading to fatal consequences. The respondent claims the length of time that has passed since the appellant’s release is insufficient to demonstrate that the appellant does not represent a genuine, present, and sufficiently serious threat affecting one of the fundamental interests of society, taking into account past conduct, and that the threat does not need to be imminent. The respondent claims the appellant’s deportation is proportionate and the judge failed to give adequate reasons for finding otherwise.
6. Permission to appeal to the Upper Tribunal was granted by FtT Judge Lester on 14 November 2024.
The Hearing of the Appeal Before Me
7. On behalf of the respondent Ms Simbhi adopted the grounds of appeal. She submits the judge attached undue weight on the matters that have occurred since the appellant’s release and did not have regard to relevant factors such as his past conduct and the fact that Regulation 27(5)(c) makes it clear that the threat does not need to be imminent. The appellant was released on licence on 9 November 2023. The licence expires on 25 June 2026. The judge was required to carefully consider the risks posed by the appellant and the fundamental interests of society, but failed to do so.
8. In reply, Mr Hingora relies upon the rule 24 response filed on behalf of the appellant on 6 February 2025. The appellant relies upon the judicial restraint that a Tribunal should exercise in setting aside a decision of a specialist Tribunal. The appellant claims the judge correctly assessed the nature and seriousness of the offence, referring to the sentencing judge’s remarks. The judge considered the steps taken by the appellant towards rehabilitation, the strong support network he has and his abstinence from alcohol. The judge had regard to the OASys assessment having regard to low risk presented by the appellant provided protective factors remained in place, with a medium risk of serious harm in specific circumstances. The appellant claims the appellant’s demonstrable abstinence from alcohol, his deep remorse, and his strong commitment to his children, who rely on him as their primary care provider were significant mitigating factors that effectively countered any remaining concerns about future risk.
9. Mr Hingora submits there were a multitude of protective factors that were considered by the judge that weigh in favour of the appellant. The judge considered all relevant matters and gives adequate and sound reasons for the decision reached. The judge engaged with the OASyS assessment and acknowledged the breakdown of the appellant’s relationship. At paragraphs [30] to [35] the judge considered the evidence, and it is plain the judge did not ignore any of the risk indicators. The weight to be attached to the evidence was a matter for the judge and the respondent simply disagrees with the balanced assessment carried out.
10. In reply, Ms Simbhi submits the judge did not adequately take into account the future risks posed by the appellant. There are matters that currently control the appellant’s behaviour including the fact that he remains on license. The threat does not need to be imminent and looking at the passage of time between the appellant’s two convictions, it is clear that a short passage of time when the appellant remains under scrutiny is not sufficient to establish that the risks posed by the appellant have reduced.
Decision
11. I have had in mind throughout the need to exercise judicial restraint before interfering with a decision of the FtT. It is now well established that the Upper Tribunal is not entitled to find an error of law simply because it does not agree with the decision, or because the Tribunal thinks the decision could be more clearly expressed or another judge can produce a better one. Baroness Hale put it in this way in AH (Sudan) v SSHD [2007] UKHL 49 [2008] 1 AC 678), at [30]:
"Appellate courts should not rush to find such misdirection simply because they might have reached a different conclusion on the facts or expressed themselves differently."
12. In Volpi v Volpi [2022] 4 W.L.R. 48, in dismissing an appeal against findings of fact, the Court of Appeal emphasised that it was not for an appeal court to come to an independent conclusion as a result of its own consideration of the evidence; the question is whether the trial judge's conclusion was rationally insupportable.
13. It is useful to begin with the EEA Regulations 2016 that applied. As the judge noted at paragraph [8] of her decision, Regulation 23(6)(b) provides that an EEA national who has entered the United Kingdom may be removed if the respondent has decided that the person’s removal is justified on grounds of public policy. Regulation 27 as far as it is material to this appeal provides:
“27.—(1) In this regulation, a “relevant decision” means an EEA decision taken on the grounds of public policy, public security or public health.
…
(3) A relevant decision may not be taken in respect of a person with a right of permanent residence under regulation 15 except on serious grounds of public policy and public security.
…
(5) The public policy and public security requirements of the United Kingdom include restricting rights otherwise conferred by these Regulations in order to protect the fundamental interests of society, and where a relevant decision is taken on grounds of public policy or public security it must also be taken in accordance with the following principles—
(a) the decision must comply with the principle of proportionality;
(b) the decision must be based exclusively on the personal conduct of the person concerned;
(c) the personal conduct of the person must represent a genuine, present and sufficiently serious threat affecting one of the fundamental interests of society, taking into account past conduct of the person and that the threat does not need to be imminent;
(d) matters isolated from the particulars of the case or which relate to considerations of general prevention do not justify the decision;
(e) a person’s previous criminal convictions do not in themselves justify the decision;
(f) the decision may be taken on preventative grounds, even in the absence of a previous criminal conviction, provided the grounds are specific to the person.
(6) Before taking a relevant decision on the grounds of public policy and public security in relation to a person (“P”) who is resident in the United Kingdom, the decision maker must take account of considerations such as the age, state of health, family and economic situation of P, P’s length of residence in the United Kingdom, P’s social and cultural integration into the United Kingdom and the extent of P’s links with P’s country of origin.
…
(8) A court or tribunal considering whether the requirements of this regulation are met must (in particular) have regard to the considerations contained in Schedule 1 (considerations of public policy, public security and the fundamental interests of society etc.).”
14. It is also convenient to set out Schedule 1 of the 2016 Regulations as far as it is relevant to this appeal.
“The fundamental interests of society
7. For the purposes of these Regulations, the fundamental interests of society in the United Kingdom include—
…
(b) maintaining public order;
(c) preventing social harm;
…
(g) tackling offences likely to cause harm to society where an immediate or direct victim may be difficult to identify but where there is wider societal harm (such as offences related to the misuse of drugs or crime with a cross-border dimension as mentioned in Article 83(1) of the Treaty on the Functioning of the European Union);…
(j) protecting the public
…”
15. The appellant has acquired permanent residence but has not established 10 years continuous residence. As the judge said at paragraph [19] of the decision, the appellant is therefore afforded the “middle tier’ of protection. To justify interfering with the appellant’s rights to free movement and residence in the UK, the respondent must establish the appellant’s removal is justified on serious grounds of public policy and public security. As set out in Regulation 27(5)(c), the appellant cannot be removed unless his personal conduct represents "a genuine, present and sufficiently serious threat affecting one of the fundamental interests of society, taking into account his past conduct and that the threat does not need to be imminent.” Paragraph 1 of Schedule 1 confirms that the EU Treaties do not impose a uniform scale of public policy or public security values and member States enjoy considerable discretion, acting within the parameters set by the EU Treaties to define their own standards of public policy and public security, for purposes tailored to their individual contexts, from time to time. The application of paragraph 1 to the United Kingdom is informed by what follows at paragraphs 2 to 6 of Schedule 1.
16. The judge identified the issues in the appeal at paragraph [15] of the decision. The judge heard evidence on two separate occasions as set out in paragraphs [16] and [17] of the decision. At paragraphs [19] and [20] of the decision, the judge referred to the index offence and the sentencing remarks. At paragraph [21] the judge said:
“I turn to consider whether the Appellant’s personal conduct represents a genuine, present threat, taking into account past conduct of the Appellant and that the threat does not need to be imminent.”
17. At paragraph [23] of the decision the judge noted the appellant has not long been released from prison and at paragraph [24] the judge noted the appellant’s licence expires on 25 Jun 2026. The judge attached significant weight to that as a factor that controls the appellant’s behaviour. The judge went on to consider the OASyS assessment.
18. The report states, at R10.1 that “Members of the public are at risk of death or serious injury”. The likelihood of serious reoffending over the next two years was assessed to be 0.11% (low). The nature of the risk is said to be, at R10.2, of serious physical injury or even death to any victims as well as psychological trauma to member of the public who may witness such a serious offence. There is also the long term psychological trauma to the family and friends of any such victim. The author of the OASyS Report noted, at R10.3, that the risk of serious recidivism score of 0.11% “is primarily due to a lack of historic convictions on Mr Aksiutovas's part that do not reflect the seriousness of his current offence”. Although the score of 0.11% is indicative of a ‘low’ risk, the author of the report states; “Given the nature of his current offending I would assess Mr Aksiutovas's risk as Medium.” The risk is said to be greater if the appellant has been drinking alcohol and has access to a motor vehicle. Alcohol acted as a disinhibitor. The author of the report states at R10.3:
“… I would assess that public are at Medium Risk of Serious Harm and the risk is currently not immediate.”
19. The OASyS report states, at R10.4, that the risk is increased should the appellant lose the support of his partner and/or children. It is also increased if the appellant returns to his previous lifestyle or drinking while socialising with friends. Maintaining a good relationship with his partner and family will help reduce risk as they are a protective factor and support the appellant. Refraining from drinking alcohol in an excessive manner once the alcohol tag is removed will further reduce the risk to the public. It is said that if the appellant. engages with interventions around consequential thinking and victim awareness, including the impact his offence has on the wider community then this would likely reduce his risk.
20. Overall, the OASyS report concludes that the appellant presents as a ‘medium’ risk to the public in the community. At paragraph [28] of the decision, the judge said:
“The assessment “medium risk of serious harm to the public” is explained as; “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 misuse.”
21. The judge referred to the protective factors referred to in the OASyS report, including the appellant’s relationship with his partner and noted that there has been a change in the appellant’s circumstances. His relationship with his partner has ended. The appellant’s evidence as set out in the decision was that when he was in prison he had a lot of time to think and he attended courses about the harm caused by alcohol addiction. As a result, he stopped drinking four years ago and has remained sober since. The appellant’s evidence was that since his release on 19 November 2023, he had not even thought about having a beer because of the potential consequences it could have on his actions. He explained that the death of Mr Salter affected him very badly.
22. Standing back, it is clear from what is said at paragraph [21] of the decision that the judge found the appellant’s behaviour is serious enough to constitute a threat to the fundamental interests of society namely, namely removing an EEA national with a conviction and maintaining public confidence in the ability of the relevant authorities to take such action. At paragraph [22] the judge went on to consider whether the appellant’s conduct represents a genuine, present threat, taking into account the past conduct of the appellant and that the threat does not need to be imminent. At paragraph [36] the judge had in mind the appellant’s previous conviction in March 2017 and accepted, as the Presenting Officer had submitted, that the appellant’s subsequent conviction in 2023 demonstrated an escalation in the seriousness of his offending. The judge went on to balance that against the other evidence before the Tribunal.
23. The findings made by the judge are set out at paragraph [37] of the decision. The judge accepted the appellant is genuinely remorseful, that he completed an alcohol awareness programme in prison and that he has abstained from alcohol for the last four years. The judge also accepted that that the appellant is a man who is willing to learn from his mistakes and rehabilitate.
24. At paragraphs [38] and [39] the judge concluded:
“38. The OASys report stated that the Appellant’s alcohol consumption was linked to offending behaviour, but the Appellant has demonstrated he is committed to changing his offending behaviour. Since leaving prison, he has engaged with the probation. Since his release he has dealt with the separation from his wife, taken on the role of primary carer for his children and has not returned to alcohol. It is extremely unlikely that having gone through this experience he will return to the drinking habits that caused him to commit the index offence.
39. I have balanced all the factors and I find that the offending behaviour, because of the nature of the index offence, is of a greater seriousness. However, having considered the sentencing judge’s remarks, the OASys assessment, and the Appellant’s behaviour since being released, all of which I have set out in detail above, I do not find that the Appellant poses a genuine and present threat.”
25. It is in my judgment clear that the judge took into account all relevant evidence and had in mind throughout the relevant legal framework and the test to be applied. The test is not that the appellant poses no risk at all. The judge plainly considered the evidence before the Tribunal that was capable of supporting the claim that the appellant has demonstrated he is capable of abstaining from alcohol and has caring responsibilities towards his children. It was open to the judge to conclude that there are a combination of relevant factors that cumulatively establish that the appellant’s conduct does not represent a genuine, present threat notwithstanding the threat does not need to be imminent. The judge engaged with the evidence before the Tribunal and gave perfectly adequate reasons for the conclusions reached.
26. It is now well established that judicial caution and restraint is required when considering whether to set aside a decision of a specialist fact finding tribunal. An appeal before the Upper Tribunal is not an opportunity to undertake a qualitative assessment of the reasons to see if they are wanting, even surprising, on their merits. Standing back, the analysis of the issues that arise in such an appeal and of the evidence is always a highly fact sensitive task. The findings and conclusions reached by Judge Athwal were in my judgment, neither irrational nor unreasonable in the Wednesbury sense, or findings and conclusions that were wholly unsupported by the evidence. They were based on the particular facts and circumstances of this appeal and the evidence before the Tribunal. Where a judge applies the correct test, and that results in an arguably generous conclusion, it does not mean that it was erroneous in law.
27. It follows that in my judgment the decision of First-tier Tribunal Judge Athwal is not vitiated by a material error of law and the decision of the FtT to allow the appeal stands.
Notice of Decision
28. The appeal to the Upper Tribunal is dismissed.
29. The decision of First-tier Tribunal Judge Athwal promulgated on 21 October 2024 stands.

V. Mandalia
Upper Tribunal Judge Mandalia

Judge of the Upper Tribunal
Immigration and Asylum Chamber

9 June 2025