Tribunal decisions

The decision

IN THE UPPER TRIBUNAL
IMMIGRATION AND ASYLUM CHAMBER

EUSS Case No: UI-2024-005364
(EA/01093/2024)
HU Case No: UI-2024-005366
(HU/01254/2024)

THE IMMIGRATION ACTS

Decision & Reasons Issued:

11TH April 2025

Before

UPPER TRIBUNAL JUDGE CANAVAN
DEPUTY UPPER TRIBUNAL JUDGE S. DAVIES

Between

SECRETARY OF STATE FOR THE HOME DEPARTMENT
Appellant
and

MAHAMOUD ALI AWAD
(NO ANONYMITY ORDER MADE)
Respondent

Representation:
For the Appellant: Ms S. Cunha, Senior Home Office Presenting Officer
For the Respondent: Mr P. Richardson, instructed by TMC Solicitors Ltd.

Heard at Field House on 25 March 2025

DECISION AND REASONS

1. For the sake of continuity, we will continue to refer to the parties as they were before the First-tier Tribunal although technically the Secretary of State is the appellant in the appeal before the Upper Tribunal.

2. No anonymity order was made in the First-tier Tribunal. Although the case was initially anonymised by the administration in the Upper Tribunal, we could find no judicial order authorising this. It seems to have been done in error. Mr Richardson agreed that no anonymity order is required.

Background

3. The appellant (Mr Awad) is a citizen of the Netherlands who was born on 10 April 1997. He entered the UK with his parents in or around 2003. The appellant attended school in the UK from 2004 until 2014. It seems that his existing rights of free movement were never formalised by the grant of a residence card.

Criminal convictions

4. The appellant was cautioned for theft in 2013. In 2015 he was convicted for the offence of battery and sentenced to a community order.

5. On 05 November 2020 the appellant was arrested for possessing controlled drugs (Class A - Cocaine) (Class B – Cannabis) with intent to supply (‘the pre-31 December 2020 offence’). The conduct leading to his conviction for these offences took place before 31 December 2020, when the implementation period following the United Kingdom’s exit from the EU came to an end. However, he was not convicted and sentenced until much later.

6. On 24 March 2021 the appellant applied for leave to remain under the EU Settlement Scheme (‘EUSS’). The application was made within the ‘grace period’ provided in The Citizens’ Rights (Application Deadline and Temporary Protection) (EU Exit) Regulations 2020 (‘the Grace Period Regulations 2020’) i.e. before 30 June 2021. The EU Settlement Scheme was designed as a mechanism to grant leave to remain under the domestic immigration rules to those who could establish that they were residing in the United Kingdom in accordance with EU law at the end of the implementation period when their rights of residence came to an end. Provisions were also made to retain existing grounds for deportation under EU law for certain categories of ‘relevant persons’ who were in the UK before the implementation period ended.

7. On 10 November 2023 the appellant was sentenced for the pre-31 December 2020 offence. At the same time, he was sentenced for an offence of dangerous driving. The conduct leading to this conviction took place on 24 April 2023 (‘the post-31 December 2020 offence’). The appellant was sentenced to 33 months’ imprisonment (to be served consecutively) for the pre-31 December 2020 offences and 15 months’ imprisonment for the post-31 December 2020 offence.

Deportation proceedings

8. The respondent (SSHD) issued a notice of intention to deport on 01 December 2023 (Stage 1 notice). Under the heading ‘Part 1 – deportation decision’ the respondent relied on the pre and post 31 December 2020 convictions. In this case, the respondent did not issue deportation decision under the EUSS which would stand as an appealable decision under The Immigration (Citizens’ Rights Appeals) (EU Exit) Regulations 2020 (‘the CRA Regulations 2020’) because she was not satisfied, at that stage, that the appellant had been lawfully resident in the UK in accordance with EU law at the end of the implementation period. Instead, she invited further submissions from the appellant before deciding whether to make a decision pursuant to regulation 23(6)(b) and 27A of The Immigration (European Economic Area) Regulations 2016 (‘the EEA Regulations 2016’) (as saved and amended).

9. The appellant made further representations in response to the Stage 1 notice on 31 March 2024. His legal representatives made clear that the appellant entered the UK in 2003 with his parents and provided the dates of his school attendance. The representations set out provisions relating to deportation contained in the EEA Regulations 2016. It was submitted that the appellant continued to have the protection of the saved provisions of the EEA Regulations 2016 because he had lived in the UK in accordance with the EEA Regulations since 2003. He had completed 19 years’ continuous residence before he was sentenced to imprisonment. It was argued that the appellant therefore came within the highest level of protection contained in regulation 27 (and it followed by Article 20(1) Withdrawal Agreement saving the provisions of Chapter VI Directive 2024/38/EC). It was submitted that there were no ‘imperative grounds of public security’ to justify deportation from the UK in this case. Further submissions were made in relation to human rights issues. The supporting documents sent with the representations included statements from the appellant’s family members and evidence relating to his attendance at school.

10. On 24 April 2024 the respondent made the two decisions:

(i) A decision to refuse a human rights claim

The respondent found that the saved and amended provisions of the EEA Regulations 2016 did not apply because there was no evidence to show that the appellant was lawfully resident in accordance with EU law at the end of the implementation period. In light of this, the respondent decided to make a deportation order under the UK Borders Act 2007 and to deport him pursuant to sections 3(5) and 5(1) of The Immigration Act 1971 (‘the IA 1971’). In considering whether any of the exceptions to deportation applied, the respondent relied on the convictions for both the drugs and driving offences. Because the first offence attracted a sentence of at least 4 years imprisonment, the appellant could only come within the exceptions to deportation contained in section 117C(6) of The Nationality, Immigration and Asylum Act 2002 (‘the NIAA 2002’) if he could show that there were ‘very compelling circumstances’ to outweigh the public interest in deportation.

The decision to refuse a human rights claim attracted a right of appeal under section 82(1) of the NIAA 2002. The relevant ground of appeal was whether the decision was unlawful under section 6 of the Human Rights Act 1998.

(ii) A decision to refuse leave to remain under the EU Settlement Scheme

The respondent refused the appellant’s outstanding application for leave to remain under the EUSS on the ground that he did not meet the ‘Suitability’ requirement of the relevant immigration rules because he was the subject of a decision to make a deportation order.

The decision to refuse leave to remain under the EUSS attracted a right of appeal under the CRA Regulations 2020. The relevant grounds of appeal were (i) whether the decision was in accordance with the residence scheme immigration rules; (ii) whether the decision breaches any rights under the Withdrawal Agreement, the EEA EFTA Separation Agreement, or the Swiss Citizens Rights Agreement; and (iii) whether the decision was not in accordance with section 3(5) or (6) IA 1971.

First-tier Tribunal appeal

11. The appellant lodged appeals to the First-tier Tribunal against both decisions. The Upper Tribunal does not appear to have access to the notices of appeal. However, it was clear from the appellant’s skeleton argument dated 09 September 2024 that he continued to argue that the highest standard of protection under regulation 27 applied because he had acquired permanent residence and had completed 10 years continuous residence before he was imprisoned. It was submitted that deportation was disproportionate both within the meaning of EU law and with reference to the balancing exercise conducted under Article 8 of the European Convention on Human Rights (‘ECHR’).

12. First-tier Tribunal Judge J. Robertson (‘the judge’) heard the appeal on 23 October 2024. The judge refused an application for an adjournment made by the respondent in the following terms:

‘2. At the outset of the hearing [the Presenting Officer] made an application for an adjournment on the basis that clarification was needed both as to the date of the conduct relied upon to deport and the status of the appellant as there was inconsistency in the notices and the refusal letter. The issue was important in order to be clear as to the applicable legislation. The application was resisted by [the appellant’s legal representative]. He referred me to the Stage 1 letter of 31st December 2020 which makes reference only to whether the appellant was lawfully resident, all of which was not in evidence. Giving an opportunity for the respondent to seek clarification may result in a change of basis of deportation.

3. In refusing the application and deciding to proceed I was mindful of the First Tier (sic) Tribunal (Immigration and Asylum Chamber) Rules and the obligation to avoid undue delay. The same issues outlined by [the Presenting Officer] had been raised in representations made prior to the decision and in the appeal and it had been open to the respondent to review the evidence prior to the hearing. It was too late now, on the day of the hearing. The appellant had a right to know the outcome of his appeal at the earliest date.’

13. The judge went on to hear evidence and determined the appeal. The judge noted the content of the Stage 1 deportation notice. The notice acknowledged that, if it was accepted that he was lawfully resident in accordance with EU law at the end of the implementation period and had an outstanding EUSS application, he might be liable to deportation with reference to regulation 23(6)(b) and regulation 27A of the EEA Regulations 2016 (as saved and amended) [4]. However, at that stage the respondent invited further submissions.

14. The judge went on to consider the content of the decision to refuse a human rights claim. She observed that the initial notice of intention to deport incorrectly stated that the appellant was sentenced to 4 years imprisonment for driving offences. The judge found that there was some ambiguity as to which offences the respondent relied on to justify the deportation decision. The appellant had been convicted of offences with conduct both before and after the end of the implementation period [8].

15. The judge noted that the decision to refuse a human rights claim rejected the submission that the appellant was lawfully resident in accordance with EU law prior to 31 December 2020. She went on to find that there was evidence, both before the respondent at the date of the decision, and at the date of the hearing, to show that the appellant was in full time education until 2014. The evidence was not considered in the decision letter. She took into account the appellant’s evidence that he had only left the UK for holidays on two occasions in 2019 and 2022 [9]. The judge went on to consider the appellant’s oral evidence. He said that had done a variety of work after leaving school. She concluded that the evidence showed on the balance of probabilities that the appellant had acquired a right of permanent residence by the time he was 11 years old and had at least 10 years continuous residence by 2014 [10].

16. The judge also found that the appellant came to the UK as a dependent of his parents. His father held a family permit from 2004 to 2009 and had since been granted settled status under the EUSS [11]. The judge observed that the respondent had failed to give full consideration to the representations made by the appellant and had failed to consider whether he had acquired a right of permanent residence. As a result, the decision was not made with reference to the saved provisions of the EEA Regulations 2016 [12].

17. Having considered the decision in Abdullah & Ors (EEA; deportation appeals; procedure) [2024] UKUT 000666 the judge went on to take a structured approach to her findings in relation to the appeal brought under the CRA Regulations 2020 [13]. She concluded that the appellant was lawfully resident in the UK in accordance with EU law at the end of the implementation period. He had acquired a right of residence and 10 years continuous residence by 2014. He had submitted an EUSS application within the ‘grace period’. For these reasons, she concluded that he came within the protection of ‘the Withdrawal Agreement, Grace Period Regulations and EUSS.’ [16].

18. Having made that finding relating to the applicable law the judge went on to determine the appeal with reference to the saved provisions of the EEA Regulations 2016, and in practical terms, in accordance with Article 20(1) of the Withdrawal Agreement [17]. It is not necessary to set out those findings in any detail in this decision because they have not been challenged. In summary, the judge considered the serious nature of the crimes, the evidence relating to rehabilitation, and the high threshold required to justify removal on imperative grounds of public security. She considered the appellant’s personal circumstances in the UK and what they might be if he returned to the Netherlands. The judge concluded that the appellant did not represent a genuine, present and sufficiently serious threat to justify removal on imperative grounds of public security [18]-[27]. Having made that finding in relation to the appeal brought under the CRA Regulations 2020, we note that the judge did not go on to determine the appeal brought under section 82(1) NIAA 2002 on human rights grounds.

Upper Tribunal

19. The Secretary of State applied for permission to appeal to the Upper Tribunal. The grounds made a series of general submissions and were not clearly particularised, but the following broad points were made:

(i) The decision to refuse an adjournment was procedurally unfair and failed to take into account the principles outlined in Nwaigwe (adjournment: fairness)[2014] UKUT 418. The discrepancies in the notice of intention to deport and the decision letter were material to the outcome of the appeal.

(ii) Having refused to adjourn, the judge then failed to identify the principal controversial issues as outlined in Lata (FtT: principal controversial issues) [2023] UKUT 00163. The judge erred in failing to give the Secretary of State a fair opportunity ‘to address the issues regarding the appropriate regime and legislation to be applied at the hearing.’

20. We have considered the First-tier Tribunal decision, the documentation that was before the First-tier Tribunal, the grounds of appeal, and the submissions made at the hearing, before coming to a decision in this appeal. It is not necessary to summarise the oral submissions because they are a matter of record, but we will refer to any relevant arguments in our decision.

21. The Supreme Court in HA (Iraq) v SSHD [2022] UKSC 22 reiterated that judicial caution and restraint is required when considering whether to set aside a decision of a specialist tribunal. In particular, judges of the specialist tribunal are best placed to make factual findings. Appellate courts should not rush to find misdirections simply because they might have reached a different conclusion on the facts or expressed themselves differently: see AH (Sudan) v SSHD [2007] UKHL 49 and KM v SSHD [2021] EWCA Civ 693. Where a relevant point is not expressly mentioned by the tribunal, the court should be slow to infer that it has not been taken into account: see MA (Somalia) v SSHD [2020] UKSC 49. When it comes to the reasons given by the tribunal, the court should exercise judicial restraint and should not assume that the tribunal misdirected itself just because not every step in its reasoning is fully set out: see R (Jones) v FTT (SEC) [2013] UKSC 19. We have kept these considerations in mind when coming to our decision.

Decision and reasons

22. We have set out the background to this appeal in some detail because it places the decision made by the First-tier Tribunal to refuse the respondent’s adjournment request in its proper context. Having considered the full picture, we conclude that there was no procedural unfairness or any other error of law that would justify setting aside the decision for the following reasons.

23. The grounds and submissions fail to particularise how or why the refusal to adjourn caused any unfairness to the respondent. The process of deportation is one that is instigated and controlled by the respondent applying the relevant legal framework. From the outset, the notice of intention to deport dated 01 December 2023 relied on the pre-31 December 2020 offence (drugs) and the post-31 December 2020 offence (driving) albeit the notice muddled the length of the sentences. Nevertheless, it was apparent from that notice that the respondent was well aware that the pre-31 December 2020 offence might engage the saved provisions of the EEA Regulations 2016. Because it was unclear whether the appellant was residing in accordance with EU law at the end of the implementation period, the respondent allowed time for the appellant to make further submissions.

24. The appellant’s further submissions addressed this point and attached evidence to show that the appellant was likely to have lived in the UK as a dependent of his parents since 2003 and was in full time education until 2014. The further representations clearly argued that the appellant came within the saved provisions of the EEA Regulations 2016 and asserted that he enjoyed the highest level of protection against removal on imperative grounds of public security.

25. The human rights decision stated that there was ‘no evidence before the Secretary of State that immediately prior to 23:00 CMT on 31 December 2020, you were lawfully resident in the United Kingdom by virtue of those regulations and that you have an outstanding application to the EU Settlement Scheme.’ The EUSS decision simply relied on the earlier notice of intention to deport and the refusal of the human rights claim to refuse the application on ‘Suitability’ grounds. First, the respondent had relevant evidence of the appellant’s lawful residence at the date of the decision. Second, the respondent was well aware that there was an outstanding EUSS application because it was determined on the same day.

26. Despite having invited submissions, and the clear content of those submissions, neither the decision to refuse a human rights claim nor the decision to refuse leave to remain under the EUSS engaged with the arguments or the evidence put forward by the appellant in response to the Stage 1 deportation notice.

27. The appellant lodged appeals against both decisions. We do not appear to have copies of the original grounds of appeal, but it is clear that any appeal brought under the CRA Regulations 2020 would be brought on the ground that the decision was not in accordance with the residence scheme rules, breached rights under the Withdrawal Agreement, or was not in accordance with section 3(5) IA 1971 (as amended to include section 3(5A)). Again, the respondent would have been well aware of the arguments that were likely to be put to the First-tier Tribunal. If it wasn’t clear then, it was by the time the appellant prepared a skeleton argument, several weeks before the hearing.

28. Although no directions were given by the First-tier Tribunal for the respondent to prepare a review, it was open to the parties to raise any preliminary issues or concerns at any time before the hearing. The hearing took place 6 months after the original decisions were made. The respondent had more than sufficient time to conduct a review of her own. If any clarification was thought necessary, a supplementary decision could and should have been prepared.

29. Even if the respondent’s failure to consider the appellant’s arguments and the evidence relating to his lawful status prior to the end of the implementation period was not noticed until a late stage, the respondent failed to make a written application before the hearing. Instead, the respondent waited until the morning of the hearing to raise the issue. It is in this context that the judge considered the late application for an adjournment.

30. At the hearing before the Upper Tribunal, Ms Cunha sought to refer to a minute sheet prepared by the Presenting Officer during the First-tier Tribunal hearing. This document could and should have been produced with the grounds of appeal. No explanation was provided as to why it was not. Nevertheless, Mr Richardson did not object to it being considered. If anything, we find that it only serves to weaken the respondent’s case. The minute noted the following about the adjournment application:

‘Spoke to SCW [AS] on the day before hearing and also [JS] on morning of the hearing and instructions is (sic) to seek an adjournment as need clarification on date of conduct being relied upon to bring the deportation order and its (sic) also possible A may have lawful residence in the UK however no EUSS leave in which case may need to be considered under the EEA regs and there is no decision before the tribunal which considers this therefore an adjournment will be needed.’

31. First, as the judge found at [2] of her decision, it was clear from the Stage 1 notice that the respondent relied on both the pre-31 December 2020 offence as well as the post-31 December 2020 offence. It was also clear from the human rights decision that the respondent relied on both offences. It was open to the judge to find that no further clarification of that issue was needed. The only issue raised in the Stage 1 notice and in the human rights decision, was whether there was evidence to show that the appellant had been residing in accordance with EU law at the end of the implementation period.

32. Second, in assessing whether an adjournment was needed in the interests of fairness, it was also open to the judge to find at [3] that the respondent had already had an opportunity to consider the arguments put forward in the representations made in response to the Stage 1 notice. The respondent failed to engage with the representations either in the human rights decision or the EUSS decision. It was open to the judge to find that the respondent had more than sufficient time to review the case before the hearing and that it was too late to raise the issue now. In the circumstances, it was appropriate for the judge to also consider the impact that a delay would have on the appellant given that the request was being made due to the respondent’s own failures.

33. Third, if a late application is made for an adjournment on the morning of the hearing, a competent legal representative should not assume that it will be granted and should be prepared to argue the case as best they can. It is apparent from the respondent’s minute that the Presenting Officer did not attempt to mount any meaningful argument with reference to the saved provisions of the EEA Regulations 2016. The minute records that the appellant was only asked whether he had ever been issued with a residence permit while in the UK. The Presenting Officer relied on the decision letters and maintained the position that there was no residence permit to show lawful residence. There is no record to indicate that they engaged with the evidence relating to the appellant’s long residence and schooling in the UK despite having earlier noted that one of the reasons why they were instructed to ask for an adjournment was that it was ‘possible A may have lawful residence in the UK.’

34. Fourth, it is not arguable that the judge erred in failing to specifically set out the issues in dispute. It was open to the Presenting Officer to ask to clarify the issues if it was not clear to them. However, it should have been clear from the appellant’s representations, grounds of appeal, the skeleton argument, and the discussion relating to the adjournment application, what legal framework was in issue. If one of the key issues identified by the respondent was whether the appellant resided in accordance with EU law at the end of the implementation period, then the respondent should have been ready to argue the case in the alternative if the judge found against her on that point.

35. The appeal against the EUSS decision was brought under the CRA Regulations 2020 on the grounds that (i) the decision was not in accordance with the residence scheme rules; (ii) the decision was not in accordance with the Withdrawal Agreement; and/or (iii) whether the decision was not in accordance with section 3(5) IA 1971 (including section 3(5A)). For the purpose of this decision, it is not necessary to analyse what distinction there might be between the available grounds of appeal.

36. What is clear is that the judge was obliged to decide whether the appellant’s personal circumstances engaged the Withdrawal Agreement in order to determine the appeal. This included consideration of whether he was residing in accordance with EU law at the end of the implementation period and whether any conduct relied upon by the respondent for the purpose of the decision to deport engaged Article 20(1) (‘pre-31 December 2020 conduct) and might fall to be considered under the saved provisions of the EEA Regulations 2016. That is what the judge proceeded to do. None of her substantive findings have been challenged in the grounds of appeal before the Upper Tribunal.

37. It is true that the judge proceeded to determine the appeal without a formal written position from the respondent relating to the saved provisions of the EEA Regulations 2016. However, any disadvantage perceived by the respondent was caused by her own failures and does not disclose any unfairness on the part of the First-tier Tribunal.

38. For the reasons given above, we conclude that the First-tier Tribunal decision did not involve the making of an error of law. The decision shall stand.

Notice of Decision

The First-tier Tribunal decision did not involve the making of an error of law

M.Canavan
Judge of the Upper Tribunal
Immigration and Asylum Chamber

07 April 2025