Tribunal decisions

The decision

IN THE UPPER TRIBUNAL
IMMIGRATION AND ASYLUM CHAMBER
Case No: UI-2024-005754

First-tier Tribunal No: HU/54040/2023
LH/06046/2024

THE IMMIGRATION ACTS

Decision & Reasons Issued:

On 3rd of June 2025

Before

DEPUTY UPPER TRIBUNAL JUDGE WALSH

Between

SECRETARY OF STATE FOR THE HOME DEPARTMENT
(NO ANONYMITY ORDER MADE)
Appellant
and

LEANDRO GOMES MEIRELES
Respondent

Representation:
For the Appellant: Ms. S Kunah, Senior Home Office Presenting Officer
For the Respondent: Mr. M. Karnick, counsel, instructed by Citywide Solicitors

Heard at Field House on 17 April 2025

DECISION AND REASONS
1. This is an appeal by the Secretary of State for the Home Department against a decision of First-tier Tribunal Judge Alis (“the judge”) dated 28 October 2024. Permission was refused by First-tier Tribunal Judge Curtis by way of a decision dated 11 December 2024. Permission was granted by Upper Tribunal Judge Mahmood in a decision dated 22 January 2025.
2. For consistency and ease of reference the parties are referred to as they were in the First-tier Tribunal.
3. The background facts are briefly as follows. The appellant is a Portuguese national who arrived in the UK in 2013 aged 16 joining family members already in the UK. In December 2020 the appellant was convicted of an offence committed in 2018 for which he received a sentence of 30 months immediate imprisonment. He had two previous convictions but neither had attracted immediate custodial sentences. He was recalled to prison on 7 July 2022 following an allegation in respect of which no further action was taken. His release was authorised by the parole board on 10 March 2023.
4. The appellant applied on 21 July 2020 for permanent residence under the EU Exit Settlement Scheme. On 15 December 2020 the appellant was served with a notice of liability to deportation pursuant to EEA Regulations 2016. The appellant responded to that notice in January 2021 and on 28 February 2022 the appellant was served with a combined liability notice under the EEA Regulations 2016 and a decision to deport under the UK Borders Act 2007.
5. It is against those decisions that the appellant appealed by way of application lodged on 21 March 2023 under Regulation 6 of the Immigration (Citizens Rights Appeal) (EU Exit) Regulation 2020 and on human rights grounds.
The First-tier decision
6. Given the basis of challenge, as will be seen, it is helpful to set out the First-tier decision at some length.
7. The judge heard from the appellant who gave evidence as to his current employment, income and savings and his relationship with his daughter. The appellant’s former partner who is the mother of his child, and who had made but did not pursue allegations a against him, gave evidence on his behalf with respect to his relationship with their daughter and his role in her life. The appellant’s sister also gave evidence on his behalf. The respondent in submissions did not accept the financial position of the appellant as it was unevidenced and did not accept in any event that his current financial situation or his child would reduce the likelihood of his reoffending.
8. At [7] the judge identified the agreed approach to the issues as follows:
(a) The Appellant had demonstrated that by 15 December 2020 he had achieved permanent residence as an EEA family member.
(b) The Appellant has a right of appeal on EU grounds pursuant to Regulation 36 of the 2016 Regulations with reference to Regulation 27 of the 2016 Regulations.
(c) There must be serious grounds of public policy and public security to justify his removal under EU law.
(d) The Appellant’s daughter was not a qualifying child for the purposes of Section 117C of the 2002 Act.
(e) The Appellant could not demonstrate he had established a private life pursuant to Section 117C of the 2002 Act.
(f) Were there any very compelling circumstances that would make removal under Article 8 unduly harsh?
9. At [25] to [29] the judge set out the provisions of Regulations 27(1), 27(5), and 27 (6) of the 2016 Regulations. The judge did not refer to Regulation 27(8) which directs a court or tribunal considering whether the requirements of the regulation are met to have regard to the considerations in Schedule 1 of the Regulations.
10. At [30] to [31] the judge summarised the appellant’s offending behaviour. He referred to the sentencing remarks of the judge in respect of his most serious conviction, noting the aggravating and mitigating features of the offence and set out in summary the findings of the OASys probation report which determined the appellant to be at low risk of re-offending in every category.
11. The judge set out the framework for assessing the proportionality of the respondent’s decision to deport the appellant at [33] by citing Tsakouridis C145/09 at [53], a case to which he had been referred:
To assess whether the interference contemplated is proportionate to the legitimate aim pursued, in this case the protection of public security, account must be taken in particular of the nature and seriousness of the offence committed, the duration of residence of the person concerned in the host Member State, the period which has passed since the offence was committed and the conduct of the person concerned during that period, and the solidity of the social, cultural and family ties with the host Member State. In the case of a Union citizen who has lawfully spent most or even all of his childhood and youth in the host Member State, very good reasons would have to be put forward to justify the expulsion measure.
12. At [34] – [35] the judge considered the respondent’s letter and in particular whether the respondent applied the higher test available to persons who qualified for permanent residence. He found that the respondent did not do so.
13. Assessing the appellant’s offending at [38], the judge found, contrary to submissions on behalf of the appellant, that the offence for which the appellant received an immediate custodial sentence was capable of reaching the intensity covered by serious grounds of public policy and was an offence which by its nature is harmful to the community regardless of any identifiable victims [38].
14. The judge then set out the exercise he had to carry out again referencing Tsakourdis at [50-51]:
40. A balance must be struck between the exceptional nature of the threat to public security as a result of the Appellant’s conduct assessed, if necessary, at the time when the expulsion decision is to be made by reference to the possible penalties and the sentences imposed, the degree of involvement in the criminal activity, and, if appropriate, the risk of reoffending and, on the other hand, the risk of compromising his social rehabilitation in this country. The sentence passed must be taken into account as one element in that complex of factors. His sentence cannot on its own lead to an expulsion decision.
41. I must look at all of the above matters and decide whether he currently poses a genuine and present threat. I place weight on the fact he has been before the courts on a number of occasions and his offending behaviour has increased. This must be balanced against the fact that his two most serious offences were committed in 2014 and 2018 respectively. He received a suspended sentence in 2016 for an offence that occurred in 2014 and he received his custodial sentence for an offence that was committed in 2018.
42. Apart from a minor possession of cannabis offence in February 2020 he has not committed any further offences since 2018 which is of course now some six years ago.
15. The judge observed at [43] that the picture of the appellant’s behaviour is “complicated” by his recall to prison following an allegation by his ex-partner. However that allegation was not pursued and the judge records the appellant’s partner’s evidence that it was made at a time when the relationship was toxic and had broken down. The judge noted there had been no further offending since his release in March 2023, the OASys report was positive, whilst there was a risk it was low, and social services removed restrictions on unsupervised contact with his daughter in March 2023.
16. Whilst finding the offence attracting a custodial sentence to be serious, the judge found that having considered the totality of the evidence, the appellant did not represent a genuine and present threat to the fundamental interest of society and was consequently entitled to protection under Regulation 27 (3).
17. The judge did not find that there were very compelling circumstances such that his removal would be contrary to the Human Rights Act 1998.
Grounds of Appeal and Respondent’s Notice
18. There was a single ground of appeal consisting of multiple planks which can be distilled as follows:
a. The judge failed to have regard to Schedule 1 of the 2016 Regulations.
b. The judge failed undertake a risk analysis in full accordance with Regulation 27(5) and in particular 27 (5) (c), in that he failed to take into account that any threat the appellant presented did not have to be an imminent threat
c. The judge failed to provide any/any adequate reasons with respect to matters in dispute.
19. Additionally, reliance was placed on Secretary of State for the Home Department v AA Poland [2024] EWCA Civ 18. The argument as to the relevance of this authority is not entirely clear but it is seemingly to establish the proposition that the judge should have undertaken a balancing exercise between the considerations under the 2016 Regulations and Part5A of the 2002 Act, having found the appellant could not satisfy the very compelling circumstances test.
20. The appellant lodged a Rule 24 notice averring firstly that the judge’s findings were properly reasoned and in accordance with the principles in SSHD v TC [2023] UKUT 164 (IAC). That authority calls for reasons to refer only the main issues and evidence in dispute and for the exercise of restraint in examining reasons given by a First-tier tribunal, not assuming that the tribunal misdirected itself if every step of the reasoning is not fully set out. The notice highlights the judge’s consideration of the positive and negative observations of the sentencing judge, the appellant’s stable employment, the OASys report and the passage of time in a holistic assessment before finding that the respondent had not met the burden of demonstrating that the appellant represents a genuine, present and sufficiently serious threat.
21. The cross-appeal under Rule 24(3)(e) averred that in considering the appellant’s claim under s.117C(6)/Article 8 ECHR, the loss of the appellant’s rights under the Withdrawal Agreement was a material matter which should have been taken into account.
The Hearing
22. This was a hybrid hearing with Ms. Kunah attending in person and Mr. Karnick attending remotely. The appellant was also present remotely for part of the hearing, though it appears there was a technical problem which prevented him from remaining for the duration of the hearing.
23. I had before me a composite bundle of 494 pages. Ms. Kunah did not have the composite bundle but confirmed that she had all of the relevant documents and was prepared to proceed.
24. I dealt with the appellant’s Rule 24 notice and the application for an extension of time as a preliminary matter. Mr. Karnick explained the late service was due to financial constraints. No objection was made by Ms. Kunah and I allowed the extension of time in accordance with the overriding objective, there being no prejudice to the respondent.
25. To clarify the ground raised under 24 (3)(e) I asked Mr. Karnick whether it was now averred that that appellant’s child was a qualifying child. He confirmed that it was not as the inclusion of that term had been an error. He also confirmed that if the respondent’s appeal was dismissed the 24 (3)(e) issue in respect of Article 8 fell away.
26. In submissions, Ms. Kunah argued that the judge failed to make findings on disputed matters and/or did not provide adequate reasons for resolution of matters in the appellant’s favour and thus respondent was not able to understand why she lost the case. Particular emphasis was placed on the issue of rehabilitation. Ms. Kunah submitted that the judge did not grapple with this matter which is essential in the context of assessing the appellant’s conduct. Ms. Kunah averred that in stating at [41] the question to be answered is whether the appellant currently posses a genuine and present threat, the judge failed to take into account that the threat does not need to be imminent. Ms. Kunah accepted the judge mentioned the OASys probation report but erred by failing to weigh that in the balance in the context of the criteria set out in Schedule 1 or alternatively to state what weight he attached to it. Ms. Kunah also stressed that the judge failed to assess the nature of the appellant’s offending against the threat to public safety. This failing Ms. Kunah argued arises at least in part from the judge’s failure to engage with Schedule 1, stating that the judge addressed none of the issues he was obliged to consider under that Schedule. Ms. Kunah further submitted that the judge failed to take proper account of the reasons the appellant was recalled to prison and referred to the analysis in the OASYS report. Ms. Kunah did accept however, that the appellant had not been charged with or convicted of any offence related to recall.
27. Mr. Karnick relied on the response set out in the Rule 24 notice. He emphasised, firstly, that it was undisputed that the appellant had the benefit of “serious grounds” protection. Mr Karnick submitted that the judge did more than is required by the authorities in setting out the rationale for his findings. The judge identified the factors taken into account, including the fact that the offence attracting the custodial sentence occurred 6 years prior to the decision. Whilst part of that time was spent in custody, the appellant was at liberty for two years between the offence and sentence. Additionally, the appellant had been released by the parole board after recall a year and a half before the decision with no further offending. The appellant’s relationship with his daughter and the role he plays in her life was another undisputed matter taken into account by the judge. Mr. Karnick pointed to the judge’s analysis of the OASys report which found a low risk of serious harm. Addressing the focus of the respondent’s arguments with respect to the risk of re-offending and the non-imminent threat, Mr. Karnick noted that the respondent does not specify what the non-imminent threat is that the judge should have taken into account (Ms. Kunah in response said it was the risk of committing the same type of offence for which he was imprisoned). Mr. Karnick submitted that as the respondent does not challenge the OASys report, she is effectively asking the judge to engage in speculation. Mr. Karnick argued that the judge properly undertook the balancing exercise, emphasising that the burden was on the respondent to prove that the appellant was a genuine, present and sufficiently serious threat. He weighed in the balance appellant’s offending history, including the complications of recall, noting that the appellant’s ex-partner who had made allegations later withdrawn, gave evidence in support of the appellant as the father of her child. Mr. Karnick observed that AA Poland had not been relied on at First-tier but in any event was not relevant to the instant matter as the principle issue before the court in that case was the question of integration to which Schedule 1 was central.
28. Mr. Karnick briefly addressed me on the cross-appeal in respect of the appellant’s claim under Article 8. As will be seen, further analysis of thereof was not necessary.
Discussion
Did the judge err in failing to refer to Schedule 1 of the 2016 Regulations?
29. Regulation 27 (8) of the 2016 Regulations provides as follows:
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).
30. As this provision is mandatory, the judge really ought to have referred to it and/or Schedule 1. However, contrary to the submissions of Ms. Kunah, the judge did in fact explicitly refer to matters within Schedule 1.7. As I set out at [16], the judge acknowledged at [38] that the offence for which the appellant received a custodial sentence was one which harms the community despite there being no named victims. This echoes the language of Schedule 1.7 which states that the fundamental interests of society includes
(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.
31. Given that the judge set out the broad framework under Regulation 27 at [25] –[29] and the specific language in the judgment mirroring that in the Schedule, it is clear to me that the judge had due regard to the considerations in Schedule 1 of the 2016 Regulations regardless of his regrettable omission in failing to specifically refer to Regulation 27 (8) and Schedule 1.
Did the judge err in failing to make an assessment of future risk
32. As I set out earlier, the judge considered at [30] and [31] the sentencing judge’s remarks and the OASys probation report. That report specifically considers the current and future risk of reoffending both of which were found to be low. It also assessed the risk of serious recidivism and the risk of serious harm to the public to be low. The risk analysis took account of the fact that the custodial offence represented an escalation in offending. It also considered the circumstances of the appellant’s recall and release. At the time of the report, the appellant was still incarcerated and therefore an improved financial position was not a factor taken into account in determining the risks to be low.
33. The OASys report is a professional assessment of the appellant’s risk profile the conclusions of which were unchallenged. I find, therefore, that not only did the judge not err in making his own findings in respect of future risk, it would have been irrational if the judge had formed his own view as to some non-imminent threat that the appellant presented.
Did the judge fail to provide any/any adequate reasons for his findings
34. At [40] – [45] the judge the judge identifies the nature of the balancing exercise he has to undertake, he sets out the positive and negative factors he has taken into account in the course of that exercise and addresses the arguments on behalf of the respondent. As he must do, the judge states that in coming to his decision he has taken account of the totality of the evidence.
35. It is entirely clear to me from the way the decision is set out in those paragraphs that the judge found that the positive factors (ie the passage of time since the commission of the most serious offence, absence of offending since his release, the positive OASys report confirming his low risk of reoffending and harm, social services lifting restrictions on his contact with his daughter) outweighed the negative factors (ie the seriousness of the custodial offence including the threat to public security and social harm thereof and the escalation in offending) consequently finding that the respondent failed to establish to the requisite standard that the appellant represented a genuine, present and sufficiently serious threat to the fundamental interests of society. For the avoidance of doubt I find that, contrary to the submissions of Ms. Kunah, it is clear at [40] – [41] that the judge assessed the serious nature of the appellant’s offence against the threat to public safety.
36. I find that the decision is properly reasoned, clearly and logically set out and thus consistent with The Practice Direction from the Senior President of Tribunals: Reasons for Decisions, 4 June 2024. I find, therefore no error of law with respect to the adequacy of reasons on disputed issues.
Does AA Poland call for a balancing of the 2016 Regulations and Part5A 2002 Act in coming to an “overall decision” as to the lawfulness of the appellant’s deportation.
37. As to the reliance on AA Poland, the approach to cases involving the 2016 Regulations and Part 5A of the 2002 Act is made clear at [71] – [72]:
71. In my judgement, the correct approach is as indicated in Badewa . The application of the 2016 Regulations is a legally distinct exercise from the assessment of a human rights claim. Where both arise, they should be addressed separately and in turn. The 2016 Regulations should be addressed first, including the assessment required by Regulation 27(5)(a) of whether deportation would comply with the EU principle of proportionality. The provisions of Part 5A of the 2002 Act have no part to play at that stage.
72. The public interest question will not necessarily arise. Although deportation will commonly interfere with Article 8 rights that will not invariably be the case. If it is, the second question arises: whether deportation would be in accordance with the law. That will not be so if deportation would be contrary to the 2016 Regulations. In such a case the human rights analysis need go no further….
38. As AA Poland explicitly states that these are distinct exercises, the apparent suggestion in the respondent’s grounds that there should be a “balancing” of the tests in the 2016 Regulations and Part5A of the 2002 Act is a misreading of that authority.
39. For the above reasons, I find that the judge was entitled to find that the appellant does not present a genuine and present threat to a fundamental interest of society and is entitled to protection under Regulation 27 (3) of the 2016 Regulations and dismiss the respondent’s appeal.
40. As I have dismissed the respondent’s appeal, I do not need to determine the appellant’s cross-appeal in respect of Section 117C (6)/Article 8 ECHR.
Notice of Decision
41. The decision did not involve the making of an error of law and stands.

Martha Walsh

Deputy Judge of the Upper Tribunal
Immigration and Asylum Chamber

22 May 2025