Tribunal decisions

The decision

IN THE UPPER TRIBUNAL
IMMIGRATION AND ASYLUM CHAMBER
Case No: UI-2024-005538
UI-2024-005539

First-tier Tribunal No: EU/55504/2023 EU/50054/2023

THE IMMIGRATION ACTS

Decision & Reasons Issued:

15th May 2025

Before

UPPER TRIBUNAL JUDGE MAHMOOD
UPPER TRIBUNAL JUDGE BULPITT

Between

MR ADEOLA AKEEM ODUKOYA
(ANONYMITY ORDER not MADE)
Appellant
and

SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: Mr A Adewoye, Prime Solicitors
For the Respondent: Mr N Wain, Senior Home Office Presenting Officer

Heard at Field House on 2 April 2025

DECISION AND REASONS
1. The appellant is 42 years of age and a citizen of Nigeria. He appeals against the decision of First-tier Tribunal Judge G Clarke (the Judge) promulgated on 17 September 2024. In his decision the Judge dismissed the appellant’s appeals against (1) the respondent’s decision to make a deportation order against him and (2) the respondent’s decision to refuse his application for indefinite leave to remain under the European Union Settlement Scheme (EUSS).
2. For reasons which we explain in the following paragraphs we have dismissed the appellant’s appeal.

Background
3. The appellant was born and raised by his parents in Ogun state, Nigeria. He arrived in the United Kingdom in February 2010 having been granted leave to do so as a student to study for a Masters. When his leave to remain in the United Kingdom was due to expire in December 2013 he applied to extend it on the basis he was an entrepreneur however his application was refused and his appeal against that refusal dismissed. His leave to remain therefore expired when he became appeal rights exhausted in August 2015 and he became an overstayer. A second application for leave to remain as an entrepreneur was also refused on 5 November 2015 but the appellant remained in the United Kingdom nonetheless.
4. On 18 March 2016, at a ceremony in Southwark, the appellant married Olivia Malebe an Irish citizen living in the United Kingdom. The appellant’s case is that Ms Malebe has been living and working in the United Kingdom since their marriage and that he was therefore entitled to reside with her as her spouse under EU law. On this basis on 7 June 2016 the appellant applied to the respondent for a residence card recognising his right under EU law to reside in the United Kingdom, and the respondent granted that application issuing the appellant with the residence card on 22 December 2016.
5. Between 1 January 2018 and 1 August 2019 the appellant committed offences of conspiring with others to make false representations for gain and conspiring with others to conceal/disguise/convert/transfer/remove criminal property. The conspiracy related to a “diversion fraud” in which fraudsters hacked email conversations and duped victims into authorising bank transfers from their accounts into “mule accounts” overseen by the fraudsters, from where the money would be dispersed so that it could not be recovered. The criminal operation required a fresh supply of “mule accounts” for the proceeds of the fraud to pass through. The appellant’s role was a “mule herder” effectively a middle man connecting those conducting the fraud to the mule accounts and sometimes being in control of the mule accounts himself. Overall the conspiracy to defraud was valued at more than £15Million but the provable value attributable to the appellant was £155,488. The appellant’s role was uncovered in a large scale investigation which resulted in the conviction of five men, during which WhatsApp messages involving the appellant were discovered. The appellant was prosecuted in a second “spin off” prosecution following the successful prosecution of the original five offenders. This history meant that the appellant was not prosecuted for his offending until May 2021.
6. In the meantime, following the UK’s departure from the EU on 31 December 2020, and within the “grace period” for making such an application, on 18 March 2021 the applicant applied for leave to remain in the United Kingdom under the European Union Settlement Scheme (EUSS) on the basis that he was a family member of Ms Malebe, an EU citizen residing in the United Kingdom.
7. On 14 May 2021 the appellant first appeared in court in connection with his offending and was remanded in custody. On 2 July 2021 the appellant pleaded guilty to the two criminal charges he faced and on 8 October 2021 he was sentenced for those offences to three years imprisonment concurrent on each offence i.e. a total of three years imprisonment. The respondent informed the appellant that he was liable to deportation on 27 November 2021 and in reply the appellant made representations against a deportation order in December 2021. A year later on 19 December 2022 the respondent issued two decisions. In the first she explained that applying the Immigration (European Economic Area) Regulations 2016 (the 2016 Regulations) she was issuing a deportation order against the appellant because she considered he posed a genuine, present and sufficiently serious threat to the fundamental interests of society. In the second she explained that she was refusing the appellant’s EUSS application on the grounds he did not meet the suitability requirements having been made subject of a deportation order.
8. The appellant appealed against the respondent’s two decisions. His appeal was initially heard and allowed by First-tier Tribunal Judge Norris, however her decision was found by the Upper Tribunal to contain an error of law and was set aside. The appeal was consequently remitted for a fresh hearing in the First-tier Tribunal which is how it came to be before the Judge on 16 July 2024. By the time of the hearing before the Judge the appellant had finished serving the custodial sentence that had been imposed. Also by the time of the hearing before the Judge, the appellant and Ms Malebe had separated, though they had not divorced.
The Judge’s Decision
9. The Judge identified that the deportation order had been made by virtue of 2016 Regulations on the grounds that the appellant’s removal was justified on grounds of public policy or public security because he represented a genuine present and sufficiently serious threat affecting one of the fundamental interests of society. The Judge recognised that those Regulations provide that a deportation order can only be made against a person who has acquired a permanent right of residence “on serious grounds of public policy and public security” (“the middle level of protection”). However, the Judge decided that the appellant was not entitled to this middle level of protection against deportation because on the Judge’s assessment at [49] – [53], the appellant had failed to provide sufficient evidence to show he had acquired a right of permanent residence in the United Kingdom.
10. The Judge then considered the appellant’s offending, his response to being sent to prison, his conduct since being released from prison, his social and cultural integration in the United Kingdom, his links to Nigeria and his economic circumstances (including outstanding debts) before concluding at [100] that the appellant poses a genuine, present and sufficiently serious threat to the fundamental interests of society and at [101] that his deportation in those circumstances is proportionate.
11. At [102] the Judge went on to state that even if the appellant had the middle level of protection from deportation there were serious grounds of public policy and public security which justified his deportation given the appellant’s involvement in organised crime over a period of 18 months, his degree of control over the mule accounts, the many victims of the crime, the appellant’s responsibility for serious harm inflicted on the victims, the public’s need for protection from organised crime and the social harm it causes, and the need for public confidence that those involved in such crimes can be removed from the United Kingdom.
12. Accordingly at [103] the Judge dismissed the appellant’s appeal against the making of a deportation order.
13. At [104] the Judge went on to consider and dismiss the appellant’s appeal against the refusal of his EUSS application on the basis of his finding that the deportation order was correctly made against the appellant.
The Appeal to the Upper Tribunal
14. The appellant sought permission to appeal against the Judge’s decision on three grounds. In the first ground he asserted that the Judge erred when determining whether the appellant had acquired a right of permanent residence, arguing that the appellant acquired such a right of permanent residence on 18 March 2021, five years after his marriage to Ms Malebe. The second ground of appeal asserted that the Judge erred in his assessment of whether the appellant posed a genuine, present and sufficiently serious threat affecting the fundamental interests of society, suggesting the Judge’s conclusion was irrational. In the third ground the appellant asserted that the Judge erred by failing to consider whether the appellant’s deportation will hamper his rehabilitation in accordance with the principles identified in Essa (EEA: rehabilitation/integration) [2013] UKUT 00316 (IAC).
15. The appellant was granted permission to appeal on ground one but refused permission to appeal on ground two by First-tier Tribunal Judge Athwal. Judge Athwal did not address ground three at all. Mr Adewoye acknowledged that there was no renewed application for permission to appeal on ground two and in those circumstances, since there had been a clear and unambiguous refusal of permission on that ground, he could not pursue ground two in these proceedings. Mr Adewoye submitted however, that since there had not been such a clear and unambiguous refusal of permission in respect of ground three, the grant of permission should be interpreted so as to include that ground of appeal. Mr Wain by contrast argued that without a clear grant of permission in respect of ground three, the grant of permission should be interpreted as limiting the appeal to ground one.
16. Rule 34(4) and (5) of the Tribunal Procedure (First-tier Tribunal) (Immigration and Asylum Chamber) Rules 2014 are relevant to this issue. They provide that:
“(4) If the Tribunal refuses permission to appeal it must send with the record of its decision-
(a) A statement of its reasons for such refusal; and
(b) Notification of the right to make an application to the Upper Tribunal for permission to appeal and the time within which, and the manner in which such application must be made.
(5) The Tribunal may give permission to appeal on limited grounds, but must comply with paragraph (4) in relation to any grounds on which it has refused permission.
17. Here, although Judge Athwal has complied with r34(4) in respect of ground two and provided a statement of her reasons for refusing permission on that ground, she has not provided such a statement of reasons for refusing permission on ground three. Since r34(5) says that a Judge limiting permission must comply with paragraph (4) in relation to any grounds on which it has refused permission, and since Judge Athwal did not comply with that sub-rule in relation to ground three, we consider that a correct interpretation of the grant of permission to appeal is that it did not limit the appellant’s ability to argue ground three.
18. We are strengthened in that view by two decisions of the Court of Appeal. In Secretary of State for the Home Department v Rodriguez; Mandalia and Patel v SSHD [2014] EWCA Civ 2, where the court was considering an unclear grant of permission to appeal, Davis LJ said at [80]: “The guiding consideration must always be, where it is intended that a grant of permission to appeal is to be limited or restricted, that the grant is unambiguously clear. It thus should, in my view, be regarded as good practice to be followed in such cases that the wording of the actual grant itself is explicit that the permission to appeal is limited or restricted ”. In R (Behary) v Secretary of State for the Home Department and Another [2016] EWCA Civ 702 meanwhile, the Court of Appeal, having considered Davis LJ’s judgment in Rodriguez, decided at [40] that where the overall position was ambiguous as to whether permission had been granted or refused on a particular ground the issue should be resolved in favour of the appellant.
19. It follows therefore that the following two grounds of appeal (slightly rearticulated by us for clarity) are “live” before us for consideration:
Ground one
The Judge erred when considering whether the appellant had acquired a right of permanent residence in the United Kingdom and so was entitled to medium level of protection from deportation under the 2016 Regulations
Ground three
The Judge erred by failing to consider the impact deportation will have on the appellant’s rehabilitation when determining that his deportation was proportionate
The Legal Framework
20. The appellant’s first ground of appeal raises issues about the Judge’s interpretation of the complex legal provisions that apply following the United Kingdom’s departure from the European Union, in relation to those who previously enjoyed a right to reside in the United Kingdom under EU law. It is necessary therefore to set out those provisions at some length.
The Citizen’s Directive
21. While the United Kingdom was part of the European Union, EEA nationals (including Irish citizens) and their family members enjoyed the right to reside in the United Kingdom by virtue of Directive 2004/38/EC of the European Parliament and of the Council (the Citizen’s Directive). Articles 6 and 7 of the Citizens Directive provided Union citizens and their family members with the right to reside in another Member State for as long as the Union citizen was a “worker” in the host Member State. Article 16 of the Citizens Directive provided that Union citizens who have resided legally for a continuous period of five years in the host Member State shall have the right of permanent residence there, and that their family members who have legally resided with the Union citizen in the host Member State for a continuous period of five years would similarly have the right of permanent residence there.
22. Chapter VI of the Citizens Directive dealt with restrictions on the right of entry and residence. Article 27 provided that Member States may restrict the residence of Union citizens and their family members on grounds of public policy, public security or public health. Article 27(2) stated that “measures taken on grounds of public policy or public security shall comply with the principle of proportionality and shall be based exclusively on the personal conduct of the individual concerned” adding: “The personal conduct of the individual concerned must represent a genuine, present and sufficiently serious threat affecting one of the fundamental interests of society.” Additional protection against expulsion on the grounds of public policy or public security was provided by Article 28 which stated at 28(2) that: “The host Member State may not take an expulsion decision against Union citizens or their family members, irrespective of nationality, who have the right of permanent residents on its territory, except on serious grounds of public policy or public security.” Article 28(3) provided for a higher level of protection from expulsion in respect of Union citizens who had resided in the host member state for the previous ten years.
The 2016 Regulations
23. The Citizens Directive was transposed into law in the United Kingdom by the 2016 Regulations. The right of residence under Article 6 and 7 of the Citizens Directive is reflected in Regulation 6 of the 2016 Regulations which defines an EEA national who is in the United Kingdom as a worker as a “qualified person” and in Regulation 14 of the 2016 Regulations which provides so far as is relevant that:
(1) A qualified person is entitled to reside in the United Kingdom for as long as that person remains a qualified person.
(2) A person (“P”) who is a family member of a qualified person residing in the United Kingdom under paragraph (1) or of an EEA national with a right of permanent residence under regulation 15 is entitled to remain in the united Kingdom for so long as P remains the family member of that person or EEA national.
24. The ability to acquire a right of permanent residence under Article 16 of the Citizens Directive was reflected in Regulation 15 of the 2016 Regulations which provided (so far as is relevant) that:
(1) The following persons acquire the right to reside in the United Kingdom permanently-
(a) an EEA national who has resided in the United Kingdom in accordance with these regulations for a continuous period of five years;
(b) a family member of an EEA national who is not an EEA national but who has resided in the United Kingdom with the EEA national in accordance with these regulations for a continuous period of five years;…
25. The power to restrict residence rights contained in Articles 27 and 28 of the Citizens Directive was transposed into Regulations 23 and 27 of the 2016 Regulations. Regulation 23(6)(b) provides that an EEA national or their family member may be removed from the United Kingdom if the Secretary of State has decided that the person’s removal is justified on grounds of public policy, public security or public health in accordance with Regulation 27. Regulation 27 sets out the basis on which such a decision to remove an EEA national can be made. So far as is relevant it provides:
Decisions taken on grounds of public policy, public security and public health
(1) In this regulation, a “relevant decision” means an EEA decision taken on the grounds of public policy, public security or public health.
(2) A relevant decision may not be taken to serve economic ends.
(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.
(4)…..
(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.
(7) ….
(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.).
26. Regulation 32(3) of the 2016 Regulations provides that where a decision is taken to remove a person under Regulation 23(6)(b), the person is to be treated as someone to whom section 3(5)(a) and section 5 of the Immigration Act 1971 (the 1971 Act) applies. Regulation 36 of the 2016 Regulations provides the right to appeal against an EEA decision which is defined in Regulation 2 to include a decision concerning a person’s removal from the United Kingdom. Paragraph 1 of Schedule 2 of the 2016 Regulations provides the permitted grounds for any such appeal.
Common Travel Area
27. The Common Travel Area is a long-standing agreement in place since Ireland’s independence, involving the United Kingdom and Ireland that facilitates the ability of the two nations citizens to move freely within the two countries and enjoy reciprocal rights and privileges. The agreement was most recently set out in a Memorandum of Understanding between the two governments that was signed on 8 May 2019 (the MOU).
28. The MOU affirms that the Common Travel Area and the rights and privileges enjoyed by British and Irish citizens in one another’s countries existed long before either country was a Member State of the EU and that they “are separate from and not dependant on EU citizenship or EU membership.” The MOU undertakes to reaffirm that the arrangements are to continue following the United Kingdom’s then impending departure from the EU. The MOU confirms that the Common Travel Area allows British and Irish citizens to move freely between the United Kingdom and Ireland and permits British citizens to take up residence in Ireland and Irish citizens to take up residence in the UK. The MOU also confirms the rights of British and Irish citizens to work, receive health care, social protection, social housing and education in each other’s state. The MOU records the respective governments commitment to ensuring that any necessary legislative steps are taken to give effect to those rights and privileges in the future.
The Withdrawal Agreement and the EUSS
29. In anticipation of the United Kingdom’s departure from the European Union a Withdrawal Agreement between the two sides was agreed (the Withdrawal Agreement). By virtue of Article 10 of that agreement its scope included family members of Union citizens living in the United Kingdom with the Union citizen prior to the United Kingdom’s departure from the EU. The terms of the Agreement included provision in Article 18 for those EU citizens and their family members who enjoyed free movement rights in the United Kingdom to apply for those rights to continue following the United Kingdom’s departure and that where their residence rights were verified they shall be granted residence status. The deadline for such applications was not to be less than six months from the end of the transition period following the United Kingdom’s departure and where an application was made, the residence rights enjoyed by the applicant continued pending final judgment on that application.
30. Article 20 of the Withdrawal Agreement concerned future restrictions of the right of residence for Union citizens and their family members. It provided that the conduct of Union citizens and their family members, where that conduct occurred before the end of the transition period, shall be considered in accordance with Chapter VI of [the Citizens Directive].
31. The United Kingdom implemented the Withdrawal Agreement through the EUSS which is set out in Appendix EU to the Immigration Rules. In general terms, at the time of the appellant’s application under that the EUSS, paragraph EU11 of Appendix EU provided that an EEA citizen or their family member who had acquired a permanent right of residence would be eligible for the grant of indefinite leave to remain, while paragraph EU14 provided that an EEA citizen or their family member living in the United Kingdom in accordance with the 2016 Regulations prior to the United Kingdom’s departure from the EU would be eligible for a grant of limited leave to remain. Paragraph EU15 however, provided that an application for leave will be refused on grounds of suitability where the applicant is subject to a deportation order or a decision to make a deportation order. A deportation order is defined in Appendix EU as follows:
as the case may be:
(a) an order made under section 5(1) of the Immigration Act 1971 by virtue of regulation 32(3) of the EEA Regulations; or
(b) an order made under section 5(1) of the Immigration Act 1971 by virtue of section 3(5) or section 3(6) of that Act in respect of:
(i) conduct committed after the specified date; or
(ii) conduct committed by the person before the specified date, where the Secretary of State has decided that the deportation order is justified on the grounds of public policy, public security or public health in accordance with regulation 27 of the EEA Regulations, irrespective of whether the EEA Regulations apply to the person (except that in regulation 27 for “with a right of permanent residence under regulation 15” and “has a right of permanent residence under regulation 15” read “who, but for the making of the deportation order, meets the requirements of paragraph EU11, EU11A or EU12 of Appendix EU to the Immigration Rules”; and for “an EEA decision” read “a deportation decision”); or
(c) an order made under section 5(1) of the Immigration Act 1971 by virtue of regulation 15(1)(b) of the Citizens’ rights (Frontier Workers) (EU Exit) Regulations 2020
in addition, for the avoidance of doubt, (b) includes a deportation order made under the Immigration Act 1971 in accordance with section 32 of the UK Borders Act 2007
The 2020 Act
32. The United Kingdom left the European Union on 31 January 2020 and the transition period (also known as the implementation period) which followed that departure ended on 31 December 2020. Upon completion of the transition period, paragraph 2 of Schedule 1 to The Immigration and Social Security Co-ordination (EU Withdrawal) Act 2020 (“the 2020 Act”) revoked the 2016 Regulations with effect from 31 December 2020, ending the right of free movement for EU nationals and their family members in the United Kingdom.
33. In addition and as contemplated by the MOU, section 2 of the 2020 Act also added a new section 3ZA to the Immigration Act 1971 (the 1971 Act) with effect from 31 December 2020 concerning the entitlement of Irish citizens to enter and remain in the United Kingdom without leave and made consequential amendments to the 1971 Act. The new section 3ZA to the 1971 Act provides:
(1) An Irish citizen does not require leave to enter or remain in the United Kingdom, unless subsection (2), (3) or (4) applies to that citizen (it is common ground that subsections 2, 3 and 4 are not relevant in this case).
The Grace Period Regulations
34. Regulations 3 and 4 of The Citizens' Rights (Application Deadline and Temporary Protection) (EU Exit) Regulations 2020 (the Grace Period Regulations) preserved specified provisions in the 2016 Regulations (with modifications) in respect of a person, such as the appellant, who made an application under the EUSS before 30 June 2021 and who was lawfully resident in the United Kingdom immediately before 31 December 2020, for as long as that application was outstanding, and if it is refused, until an appeal against a refusal of the application is finally determined. Regulation 6 of the Grace Period Regulations specified that Regulations 14 and 15 of the 2016 Regulations dealing with residence and permanent right of residence were preserved. Regulation 7 of the Grace Period Regulations specified that Regulations 23 and 27 of the 2016 Regulations dealing with removal and expulsion were preserved (with the addition of a Regulation 27A which is not relevant in the present case). Regulation 8 of the Grace Period Regulations preserved Regulation 32 of the 2016 Regulations.
35. By virtue of Regulation 9 of the Grace Period Regulations the right to appeal against a decision to remove under Regulation 36 of the 2016 Regulations is also preserved. Regulation 9 of the Grace Period Regulations also preserves Schedule 2 of the 2016 Regulations but modifies the permitted ground of appeal under the 2016 Regulation to be (so far as is relevant): “the sole permitted grounds of appeal [is] that the decision breaches the appellant’s rights under the [2016 Regulations], the [Withdrawal Agreement] …”
Ground one
The parties submissions
36. As Mr Adewoye pointed out, until Mr Wain’s skeleton argument was served on the morning of the hearing there has never been a direct challenge by the respondent to the appellant’s assertion that from their marriage on 18 March 2016 until the end of the transition period on 31 December 2020, both the appellant and Ms Malebe were residing in the United Kingdom in accordance with the 2016 Regulations. Given that this period fell short of five years continuous residence, the issue has previously been whether the appellant went on to acquire a right of permanent residence after 31 December 2020.
37. Mr Adewoye’s primary submission is that following the end of the transition period the appellant continued to reside in the United Kingdom in accordance with the 2016 Regulations which, as a result of his in-time EUSS application, had been preserved in respect of him by the Grace Period Regulations, and that on 18 March 2021 he acquired the right of permanent residence in the United Kingdom so that he was thereafter entitled to the middle level of protection from deportation provided under those Regulations.
38. Alternatively Mr Adewoye argues that the appellant’s in time EUSS application means that Appendix EU to the Immigration Rules is relevant when considering whether the appellant acquired a permanent right of residence under the 2016 Regulations. Mr Adewoye argues that the definition of a deportation order in Appendix EU to the Immigration Rules and the eligibility criteria in paragraph EU11 of Appendix EU have the effect of meaning that the appellant’s continued residence in the United Kingdom after 31 December 2020 should be considered when deciding whether he had acquired a permanent right of residence.
39. As a third alternative Mr Adewoye argues that as the husband of an Irish citizen the appellant acquired a right of permanent residence in the United Kingdom under the 2016 Regulations simply by being resident in the United Kingdom for a continuous five year period as the Common Travel Area and the MOU provide him with the right to remain in the United Kingdom as the spouse of an Irish citizen and there was no requirement on either him or Ms Malebe to be exercising Treaty rights.
40. For any or each of these reasons Mr Adewoye argues that the appellant acquired a permanent right of residence in the United Kingdom under the 2016 Regulations on 18 March 2021, which was five years after his marriage to Ms Malebe, and therefore that at the time the respondent made her deportation decision in December 2022, he was entitled to the middle level of protection from deportation under the 2016 Regulations. Mr Adewoye submits that the Judge erred by finding that the appellant was not entitled to that middle level protection. He argued that this was a material error because, although the Judge considered the position if the appellant were entitled to the middle level of protection, the Judge explicitly stated that he did so only “briefly” and therefore did not adequately consider whether there were serious grounds of public security and public policy that justified deportation.
41. Mr Wain argued that the Judge was correct to find that the appellant had not acquired a permanent right of residence under the 2016 Regulations and that he was not entitled to the medium level of protection from deportation provided under those Regulations. Mr Wain submitted that the ability to obtain a permanent right of residence under the 2016 Regulations was distinct from any rights under the Common Travel Area or grant of leave to remain under the EUSS and that Mr Adewoye was wrong to conflate these different issues when arguing that the appellant had acquired a permanent right of residence. Mr Wain submitted that the appellant needed to establish five years continuous residence in accordance with the 2016 Regulations prior to the end of the transition period on 31 December 2020 in order to acquire a right of permanent residence under those Regulations and that he could not do so since he only became the family member of an EEA citizen in March 2016.
42. Mr Wain asserted that whilst the preservation of the 2016 Regulations in respect of the appellant beyond the end of the transition period as a result of the Grace Period Regulations meant that the decision to make a deportation order had to be taken in accordance with those Regulations, it did not mean that the appellant could acquire a right of permanent residence after the end of the transition period. He asserted that the terms of the Regulations required the Judge to consider whether both the appellant and Ms Malebe were exercising rights under the 2016 Regulations throughout the five year period of continuous residence and that the appellant could not establish that they were doing so.
43. As an alternative Mr Wain argued that the evidence did not establish that Ms Malebe was a “worker” throughout the five year period of continuous residence relied upon by the appellant and therefore the appellant could not establish that he was residing in the United Kingdom in accordance with the 2016 Regulations throughout that period.
44. Finally, Mr Wain argued that even if the Judge did err when deciding that the appellant had not acquired an permanent right of residence and that he was not entitled to the middle level of protection, that error was immaterial since the Judge went on to consider the position were the appellant entitled to that middle level of protection in any event. Mr Wain argued that the Judge’s consideration of that issue could not be faulted and was determinative of the appeal.
Our Analysis
The Judge’s consideration of whether the appellant acquired a right of permanent residence under the 2016 Regulations
45. The Judge found at [48] that the appellant had not acquired a right of permanent residence in the United Kingdom because, although he became the family member of an EEA national when he married Ms Malebe on 18 March 2016 (see [46]) he had failed to prove that his wife had been exercising Treaty rights “for 5 years up to 2300 hours on 31st December 2020”. He further explains at [50] that the appellant falls short of five years qualifying residence “by a number of months.” It is clear from these findings that the Judge accepted that the appellant’s residence in the United Kingdom from 18 March 2016 until 30 December 2020 was in accordance with the 2016 Regulations but did not accept that his residence after 31 December 2020 was in accordance with the 2016 Regulations. These findings reflected the approach taken by the respondent in her deportation decision.
46. In this context Mr Wain’s suggestion in his late skeleton argument and during submissions that Ms Malebe was not a “worker” between March 2016 and December 2020 because her income was “marginal and ancillary” and therefore that the appellant was not residing in the United Kingdom in accordance with the 2016 Regulations during that period was misguided. The submission was inconsistent with the appellant being issued with a residence card for that period, it was contrary to the position taken by the respondent in her deportation decision and it was contrary to the findings made by the Judge. As it was a submission that sought to uphold the Judge’s decision for reasons other than those given by the Judge, it should have been made in a written response to the appellant’s appeal and submitted within one month of the respondent being sent the notice of appeal, as mandated by rule 24 of the Tribunal Procedure (Upper Tribunal) Rules 2008, but it was not. It is not a submission that should have been advanced.
47. In any event the submission that Ms Malebe’s was not a worker because her income was “marginal and ancillary” has no merit. In support of the argument, reliance is placed on Begum (EEA – worker – jobseeker) Pakistan [2011] UKUT 00275 (IAC). Whilst the Upper Tribunal identified in this decision that a person who pursues effective and genuine activities on such a small scale as to be regarded as purely marginal and ancillary is not a “worker”, it also recognised that the term “worker” in EU law is to be interpreted broadly and that it is not conditioned solely by the amount of income derived. The unchallenged evidence of Ms Malebe’s activities between 2016 and 2020 including her income both through employment and self-employment clearly established that she was a worker during this time, which no doubt is why the issue was never raised previously.
48. We do not accept therefore the suggestion, belatedly made by the respondent, that the appellant’s residence between March 2016 and December 2020 was not in accordance with he 2016 Regulations. The Judge was unquestionably entitled to find, as he did, that the appellant was continuously resident in the United Kingdom in accordance with the 2016 Regulations during this period of four years and nine months.
49. The issue in this appeal is whether the Judge was right to decide, as he appears to have done at [48], [51] and [52], that because he had not been continuously resident in accordance with the Regulations for five years by 31 December 2020 the appellant could not have acquired a permanent right of residence?
50. We agree with Mr Adewoye that by virtue of regulation 3 of the Grace Period Regulations, the appellant’s application under the EUSS, made on 18 March 2021, had the effect of preserving the 2016 Regulations in respect of the appellant beyond 31 December 2020 and for as long as that application remained outstanding. That included Regulation 14 of the 2016 Regulations providing for the right of residence and Regulation 15 providing the means to acquire a right of permanent residence, both of which were specifically preserved by Regulation 6 of the Grace Period Regulations. The appellant therefore continued to reside in the United Kingdom in accordance with the 2016 Regulations so long as he remained the family member of either a qualified person who was residing in the United Kingdom under paragraph 14(1) of the 2016 Regulations or of an EEA national with a permanent right of residence under regulation 15 of the 2016 Regulations.
51. The difficulty for the appellant however, and the reason why the Judge was right to decide that the appellant’s residence in the United Kingdom after 31 December 2020 was not in accordance with the 2016 Regulations, is that there is no evidence to suggest that his family member Ms Malebe was either residing in the United Kingdom under paragraph 14(1) the 2016 Regulations after 31 December 2020 or had acquired a permanent right of residence under those Regulations before 31 December 2020.
52. At [51] the Judge specifically found that the appellant had failed to provide sufficient evidence to establish that Ms Malebe had acquired a right to permanent residence in the United Kingdom under the 2016 Regulations. Although Mr Adewoye describes this as an irrational conclusion in his skeleton argument, there was no challenge of irrationality made in the grounds of appeal, permission was not granted to argue rationality and there was no application to amend the grounds of appeal to permit a rationality challenge. On the Judge’s unchallenged findings therefore the appellant was not a family member of an EEA national with a right of permanent residence under the 2016 Regulations.
53. Neither did the evidence establish that after 31 December 2020, the appellant was the family member of a qualified person residing in the United Kingdom under paragraph 14(1) of the 2016 Regulations. Specifically, there is no evidence that the 2016 Regulations, which were generally revoked on 31 December 2020, were preserved beyond that date in respect of for Ms Malebe. As an Irish national who, by virtue of the new section 3ZA to the Immigration Act 1971 did not require leave to remain in the United Kingdom after the 31 December 2020, Ms Malebe had no need to make an EUSS application or to rely on the 2016 Regulations for her continued right to remain in the United Kingdom after that date. Whilst her continued presence in the United Kingdom after 31 December 2020 was lawful therefore, there was no evidence before the Judge that Ms Malebe’s residence in the United Kingdom from 1 January 2021 to 18 March 2021 was under regulation 14(1) the 2016 Regulations.
54. It follows from that, applying the terms of the 2016 Regulations, that the Judge was right to decide that the appellant’s residence in the United Kingdom from 30 December 2020 until 18 March 2021 could not have been in accordance with the 2016 Regulations. During this period he was no longer the family member of a qualified person who was residing in the United Kingdom under paragraph 14(1) of the Regulations and he was not the family member of an EEA national who had acquired a right of permanent residence under regulation 15 of the 2016 Regulations. Although this rationale is not explained in either the respondent’s decision letter or the Judge’s decision, we find that both were right to ask whether the appellant had established a permanent right of residence by 31 December 2020.
The appellant’s alternative arguments about the permanent right of residence.
55. Permission to appeal was granted to the appellant on the basis that it was arguable that the Judge had failed to deal with the alternative arguments raised by Mr Adewoye that Appendix EU to the Immigration Rules and the MOU about the Common Travel Area meant that the appellant acquired a permanent right of residence under the 2016 Regulations. It is apparent that these were issues that were raised on behalf of the appellant in the appeal skeleton argument that was submitted prior to the hearing before the Judge. It is equally apparent that the arguments are not considered by the Judge in his decision. We find however that this was not a material omission because in our judgment the submissions made about Appendix EU to the Immigration Rules and the Common Travel Area are misconceived as neither could make any difference to whether the appellant acquired a right of permanent residence under the 2016 Regulations.
56. In his skeleton argument Mr Adewoye asserts that the “definition of the deportation order [in Appendix EU to the Immigration Rules] technically allowed residence after December 2020 to be aggregated towards the 5 years qualifying period”. The definition of a deportation order in Appendix EU includes three different types of order:
(a) an order made under section 5(1) of the Immigration Act by virtue of regulation 32(3) of the EEA Regulations;
(b) an order made under section 5(1) of the Immigration Act by virtue of section 3(5) or section 3(6) of that Act (subject to specific criteria depending on whether conduct was “committed” before or after the end of the transition period)
(c) an order made under section 5(1) of the Immigration Act 1971 by virtue of regulation 15(1)(b) of the Citizens’ rights (frontier Workers) (EU Exit) Regulations 2020.
57. In support of his argument Mr Adewoye relies on the definition of a deportation order provided at (b) above. The deportation order made in respect of the appellant however was a deportation order as defined in (a) above. The definition of a deportation order provided in (b) above is therefore, contrary to Mr Adewoye’s submissions, simply of no relevance to the appellant and has no application to his case.
58. More fundamentally however, the definition of a deportation order for the purpose of implementing the EUSS is completely separate from and has no bearing on the question of whether a person acquires a right of permanent residence under regulation 15 of the 2016 Regulations. The circumstances by which a person acquires the right of permanent residence under the Regulations are specific and explicitly stated in those Regulations. They do not include any period of residence that is not in accordance with the Regulations. The terms and definitions in the EUSS cannot be read as altering the content and meaning of the 2016 Regulations.
59. Likewise, Mr Adewoye’s submission that the appellant acquired a right of permanent residence under the 2016 Regulations as a result of the agreement about a Common Travel Area between the United Kingdom and Ireland, and the MOU signed by the two countries is also fundamentally misconceived.
60. First, the terms of the agreement as identified in the MOU include no provisions for the family members of British and Irish citizens such as the appellant. It has no application to the appellant as a citizen of Nigeria regardless of his relationship with Ms Malebe. More fundamentally however, any rights or privileges that Ms Malebe enjoyed as a result of the MOU and the Common Travel Area to which it relates, are again completely separate from and have no bearing on the question of whether the appellant’s residence in the United Kingdom was in accordance with the 2016 Regulations. As the MOU makes clear, the Common Travel Area is completely distinct from the rights of free movement within the EEA that were enjoyed while the United Kingdom was part of the European Union. It cannot be used to establish continuous residence in the United Kingdom under EU law, in accordance with the 2016 Regulations.
61. In summary, Regulation 14 of the 2016 Regulations provides a specific definition of when a person is entitled to reside in the United Kingdom in accordance with those Regulations and under EU law. Regulation 15 of the 2016 Regulations provides a specific definition of when a person acquires a right of permanent residence in accordance with those Regulations and under EU law. Those definitions transpose the Citizens Directive and EU law, they are separate to the Common Travel Area. The definitions in regulations 14 and 15 do not therefore include any reference to rights that might exist under the Common Travel Area. It follows that, the fact that Ms Malebe could reside in the United Kingdom under the MOU as an Irish citizen without making an application or exercising Treaty rights, cannot have any impact on whether the appellant’s residence in the United Kingdom was in accordance with the 2016 Regulations. The right that Ms Malebe had under the Common Travel Area therefore had no impact on whether applying EU law the appellant acquired a right of permanent residence in the United Kingdom in accordance with those Regulations.
The Judge’s consideration of whether the appellant acquired the right of permanent residence – conclusion
62. We find therefore that the Judge was right to conclude that the appellant had not acquired a right of permanent residence under the 2016 Regulations. The appellant’s continuous residence in the United Kingdom in accordance with the 2016 at the time those Regulations were generally revoked on 31 December 2020 was four years and nine months and so as the Judge observed, a number of months short of the five years required. Although the Regulations were preserved in respect of the appellant after 31 December 2020, his residence in the United Kingdom after that date was not in accordance with the 2016 Regulations because those Regulations required him to be the family member either of a qualified person residing in the United Kingdom under paragraph 14(1) of the Regulations or of an EEA national with a right of permanent residence. The evidence was that after 31 December 2020 the appellant’s family member, Ms Malebe was neither of those things.
63. We questioned during the hearing whether this conclusion can be consistent with the terms of the Withdrawal Agreement. We have decided however that we are not required to determine that question since, as Mr Wain pointed out, the appellant has never suggested that the respondent’s decision breached a right he has under the Withdrawal Agreement and we consequently did not hear any considered argument on the point. More significantly however, it is clear to us that even if the appellant was entitled to the medium level of protection from deportation, either because he had acquired the permanent right of residence under the Regulations or because of the terms of the Withdrawal Agreement, the Judge provided adequate reasoning for why a deportation order was still justified in those circumstances.
The Judge’s consideration of the risk posed by the appellant.
64. We agree with Judge Athwal who limited the grant of permission to appeal against the Judge’s decision, that there was no basis for challenging the Judge’s conclusion that the appellant represents a genuine, present and sufficiently serious threat to the fundamental interests of society. The Judge gave careful and detailed consideration to this question at [59] – [100] of his decision. He demonstrably considered the factors identified as relevant in the 2016 Regulations themselves, gave careful thought to the appellant’s response to being sent to prison, his current circumstances, his past offending and his financial circumstances. Having done so, he reached a conclusion that was adequately explained and was reasonably and rationally open to him.
65. Having done that applying the lowest level of protection from deportation available under the 2016 Regulations, the Judge wisely went on to consider at [102] the position should the appellant be entitled to middle level protection and concluded that there are serious grounds of public policy and public security which justify the appellant’s deportation. Mr Adewoye criticizes this consideration on the basis that the Judge said earlier in his decision at [55] that he had considered this question only “briefly”. We see no merit in this criticism. A concise decision is to be encouraged and the fact the Judge refers to his consideration as being “brief” does not mean the consideration was inadequate. What matters is the substance of the consideration rather than its length.
66. Having concluded that the appellant represents a genuine and present risk to the fundamental interests of society, to then apply the middle level of protection and consider whether there are serious grounds of public policy or public security that justified deportation, the Judge was required to additionally go on to assess the risk of harm the appellant poses, and to evaluate not only the likelihood of the appellant offending again but also the likely consequences if he does, and then to balance the risk of future harm against the need to give effect to the right of free movement (see Secretary of state for the home department v Straszewski [2015 EWCA Civ 1245 at [25]). We are satisfied that that when it is read with the decision as a whole, it is clear that the Judge does each of these things in [102] of his decision and that his assessment of this question was unimpeachable.
67. Having already found at [100] that: “there is a real risk of the appellant resorting to the type of organised crime that he has committed to alleviate his current financial burden” the Judge goes on at [102] to consider the serious harm the appellant’s previous offending caused its victims, as well as the damage to the fundamental interests of society more generally which is caused by the type of high value organised crime and money laundering offences with which the appellant was involved in the past, and with which the judge found a real risk of him being involved with again in the future. Having done this and identified the need for the public to be protected from such offending, the Judge’s conclusion that there are serious grounds of public policy and public security which require deportation was inevitable.
68. We conclude therefore that ground one does not identify an error of law in the Judge’s decision. We find that the Judge was correct on the facts as he found them to be to conclude that the appellant had not acquired a permanent right of residence in the United Kingdom and was not therefore entitled to middle level protection from deportation. Even if he was wrong to reach that conclusion however, we find that such an error would be immaterial because the Judge gave an unimpeachable explanation for why on the facts he found, deportation was justified even if the appellant was entitled to middle level protection from deportation under the 2016 Regulations.
Ground three
The parties submissions
69. Mr Adewoye relies on the decision of the Upper Tribunal in Essa (EEA: rehabilitation/integration) [2013] UKUT 00316 (IAC) to argue that the Judge was required to consider whether the appellant’s deportation would hamper his rehabilitation and to consider rehabilitation as an exercise to reduce the risk to the public, before concluding that deportation is proportionate. Mr Adewoye submits that the Judge failed to do so.
70. Mr Wain by contrast argues that the Judge clearly factored rehabilitation into the balance when assessing the proportionality of the appellant’s deportation and submits that nothing said by the Tribunal in Essa indicates that the Judge erred in his assessment of the appellant’s case.
Our Analysis
71. We agree with Mr Wain that at [82] – [86] the Judge gave careful consideration to the appellant’s rehabilitation. The Judge makes some favourable findings in those paragraphs, recognising the various courses the appellant has completed while serving his sentence, his enhanced prisoner status when serving the custodial part of his sentence, his mentor status with the probation service before concluding at [86] that the appellant has shown evidence of rehabilitation. It is clear from these paragraphs that the Judge has considered the progress made by the appellant during the sentence and licence period, just as headnote [5] of the decision in Essa suggests he should do. Indeed these paragraphs make it abundantly clear that the judge did have careful regard to the appellant's rehabilitation when assessing the proportionality of his deportation.
72. Having found that the appellant has shown evidence of rehabilitation, at [87] the Judge identifies that the appellant’s previous association with an Organised Crime Group and his involvement with a large scale fraud over a protracted period of time, resulted from the fact he had got himself into significant debt. At [88] – [93] the Judge explains his finding on the evidence before him that the appellant is again facing a significant debt. Putting these two facts together at [94] the Judge sets out his conclusion that, in view of his debt there is a high degree of likelihood that the appellant will resort to criminality again. The Judge returns at [97] to the appellant’s rehabilitation and repeats his finding that the appellant has made efforts towards his rehabilitation, but at [99] comes to his ultimate conclusion that there is a real risk of the appellant resorting to the type of organised crime that he has previously committed in order to alleviate his current financial burden.
73. In our judgment these paragraphs make it clear that, contrary to Mr Adewoye’s submission, the Judge has considered with care whether the appellant’s rehabilitation reduced the risk he poses to the public, before concluding that the risk remained, notwithstanding the steps taken towards rehabilitation by the appellant. This was indisputably a conclusion the Judge was entitled to reach and it is a conclusion that the Judge has adequately explained. This conclusion is also entirely consistent with the guidance at headnote [3] of Essa.
74. We can see nothing in the Tribunal’s decision in Essa to support Mr Adewoye’s submission that the Judge was required to consider whether deportation of the appellant would “hamper the appellant's rehabilitation.” The closest the decision in Essa gets to this proposition is to recognise at [33] the uncontroversial fact that it is in the interests of the citizen, the host state and the Union itself, for an offender to cease to offend. The same paragraph however recognises that where rehabilitation is incomplete or uncertain, future prospects may play a role in the overall assessment of the proportionality of deportation. Here, the Judge found that despite his “good efforts towards his rehabilitation” there remained a real risk of the appellant resorting to the type of organised crime he had previously committed. This was a factor that was unarguably relevant to the consideration of whether deportation of the appellant was proportionate.
75. We conclude therefore that ground three does not identify an error of law in the Judge’s decision and that the Judge did not err when assessing the appellant’s rehabilitation and its impact on the proportionality of his deportation.
Conclusion
76. Having given the appellant’s appeal careful consideration we are satisfied that the grounds advanced do not establish an error of law in the Judge’s decision.

Notice of Decision
The appellant’s appeal is dismissed.
The decision of the First-tier Tribunal did not involve the making of a material error of law and therefore stands.

Luke Bulpitt

Judge of the Upper Tribunal
Immigration and Asylum Chamber

12 May 2025