Tribunal decisions

The decision

IN THE UPPER TRIBUNAL
IMMIGRATION AND ASYLUM CHAMBER
Case No: UI-2024-005798

First-tier Tribunal No: HU/53968/2024
LH/03784/2024

THE IMMIGRATION ACTS

Decision & Reasons Issued:
On 13 May 2025

Before

DEPUTY UPPER TRIBUNAL JUDGE BEN KEITH

Between

SECRETARY OF STATE FOR THE HOME DEPARTMENT
Appellant
And

TOMASZ TADEUSZ GRYC
(NO ANONYMITY ORDER MADE)
Respondent

Representation:
For the Appellant: Mr Wade, Senior Home Office Presenting Officer.
For the Respondent: Mr Sharma, Counsel, instructed by SJK Solicitors.

Heard at Field House on 18 February 2025

DECISION AND REASONS
1. This is an appeal against the decision of First-tier Tribunal Judge Sweet. The appeal hearing took place on 16 October 2024, and the decision was promulgated on 21 October 2024. In that decision, the First-tier Tribunal allowed the appeal of the appellant Mr Gryc.

2. For ease of reference, I will refer to the Secretary of State as “the respondent” (“SSHD”) and to Mr. Gryc as “the appellant” as they were in the First-tier Tribunal.

3. The appellant, Mr. Tomasz Tadeusz Gryc, is a citizen of Poland, born on 26 October 1994. He appealed to the First-tier Tribunal against a deportation decision made by the Secretary of State on 26 March 2024. This decision followed his conviction on 6 June 2023 at Dumfries Sheriff Court, where he received a sentence of 11 months, deferred until 1 August 2023.

4. The appellant argued before the First-tier Tribunal that the deportation order infringed his rights under Article 8 of the European Convention on Human Rights (ECHR).

5. The Secretary of State now appeals on a single ground: that the First-tier Tribunal Judge made a material misdirection in law regarding the application of Article 8 considerations under Section 117 of the Nationality, Immigration and Asylum Act 2002. Specifically, it is argued that the judge incorrectly applied Section 117C instead of Section 117B, thereby applying the wrong legal test and considering irrelevant material.

6. In granting permission Ft-T Judge Robinson said the following:

“It is arguable that the judge has had regard to section 117C of the 2002 Act rather than section 117B of the 2002 Act despite his findings that the appellant was not a foreign criminal under section 117D of the 2002 Act. Whilst he refers in his determination to section 117B of the 2002 Act at paragraph 19 referring to Chege [2016] UKUT 187 he does not proceed to have regard to the public interest conditions set out in that section and considers whether the effect of deportation would be unduly harsh on the Appellant’s partner as per section 117C(5) of the 2002 Act accordingly permission is granted on the ground which is the only ground asserted.”

7. It was common ground before me that, once the First-tier Tribunal Judge found that the appellant was not a “foreign criminal” under Section 117D of the 2002 Act, and that the correct legal framework to apply was Section 117B. The disagreement was whether by referencing section 117C and potentially applying that there was a material error of law.

8. At [18] of the First-tier Tribunal’s decision, the judge makes this finding:

“18. I accept that the appellant cannot be treated as a foreign criminal under section 117C/117D of the 2002 act because it cannot be said that he is being convicted on offence that has caused serious harm. This is because the police intervened during the passage of the parcel, and it did not come into public hands. Furthermore, the meaning of serious harm is clarified in the case of Wilson [2020] UKUT 00350: the appellant's own evidence on the issue of seriousness (which can involve physical, emotional or economic harm) will usually need to be treated with caution; And there must be some evidence that the actual offences cause serious harm.”

9. At [19], the judge cites the case of Chege [2016] UKUT 00187 (IAC) where at [74] the Upper Tribunal said:

“74. We would add that even if, contrary to our conclusions, the First-tier Tribunal made an error of law in reaching the conclusion that Mr Chege was a "persistent offender" and thus that he was a "foreign criminal" to which s.117C of the 2002 Act applied, Mr Chege would have been no better off under s.117B. His track record of minor criminal offences would not cease to be a relevant consideration in the balancing exercise merely because he did not fall to be treated as a "foreign criminal," with all that that entailed. His removal would plainly not be a disproportionate interference with his Art 8 rights, for all the same reasons as were given by the First-tier Tribunal Judge.”

10. The Judge concludes at [21] and [22] as follows:
“21. Taking all the evidence into account, despite the ambivalent evidence as to her accommodation, I am prepared to accept that the appellant has a genuine and subsisting relationship with Patrycja, who has EUSS settled status, they plan to get married and start a family, and the effect of his deportation on her would be unduly harsh she has been in the UK since 2020, having previously lived in Germany during 2018-2020, though she retains contact with her parents in Poland.
22. I also take into account the compelling circumstances of the appellant's parents and one of his brothers, with whom he has a close relationship, having EUSS status and impact of his deportation on them. His only relatives in Poland or his brother and his distant relatives such as cotton's. “
11. The SSHD argued in writing and orally that Judge Sweet should have considered the considerations in section 117B in their entirety in spite of the finding at [19] and that further he should have had consideration of the 5 stage test in Razgar v SSHD [2004] UKHL 27. The SSHD also pleaded that Judge Sweet:

“… failed to have regard to the two stage test and specifically whether the appeal would succeed outside the rules and whether there are exceptional circumstances in this case which would result in unjustifiably harsh consequences for the appellant, his partner and family, such that removal will be disproportionate per R (Agyarko) v SSHD [2017] UKSC 11.”

12. The submission by the SSHD was that in applying what seems to be section 117C as opposed what was argued is a broader section 117B test the Judge fell into error as a result of treating the test under Section 117C as equivalent to that under Section 117B.

13. For Mr Gryc, is was argued in writing and before me that there was no material error of law. That the judge was fully aware of the technical differences between section 117C and 117B but as he explained at [19] of the judgment that made no material difference. In any event the judge did clearly apply the correct test finding that the impact of deportation would be unduly harsh at [21] and that there were sufficient compelling circumstances at [22].

14. In my judgment the Judge analysed the law correctly – it might have helped to set out section 117B but it would have made no difference to the outcome of the case. The test in Razgar is as follows:

“(1)  Will the proposed removal be an interference by a public authority with the exercise of the applicant's right to respect for his private or (as the case may be) family life?

(2)  If so, will such interference have consequences of such gravity as potentially to engage the operation of article 8?

(3)  If so, is such interference in accordance with the law?

(4)  If so, is such interference necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others?

(5)  If so, is such interference proportionate to the legitimate public end sought to be achieved?”

15. The SSHD did not explain which part of the Razgar test might have been ignored by the judge or what specific finding (other than the conclusion) meant that the criteria in Agyarko was not met. It is right to note that they were not specifically cited but the judge but no errors were identified by the SSHD as a result of the judge not specifically citing these cases. For the avoidance of doubt I find that no error was made by the Judge in this respect.

16. I agree with counsel for Mr Gryc that if 117C had been applied that the finding at [21] would have been determinative and would therefore not have required further finding at [22] of compelling circumstances. In my judgment the Judge applied section 117B and came to the finding using the correct test. There is therefore no material error of law.

17. In the alternative that section 117C was the operative test applied, then it would not change my decision. The case of Chege as cited by the Judge shows that there is no material advantage to being considered under section 117C as opposed to 117B. The SSHD was not able to point to any errors of law in this respect other than a general submission that section 117B is broader.

18. Therefore, I find that there was no material error of law.

Notice of Decision

1. The Appeal by the Secretary of State is dismissed.

Ben Keith

Judge of the Upper Tribunal
Immigration and Asylum Chamber

9 May 2025