UI-2024-005798

• Status of case: Unreported
• Hearing date: 14 Nov 2025
• Promulgation date: 19 Nov 2025
• Publication date: 4 Dec 2025
• Last updated on: 4 Dec 2025

The decision

IN THE UPPER TRIBUNAL
IMMIGRATION AND ASYLUM CHAMBER
Case Nos: UI-2024-005798

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


THE IMMIGRATION ACTS


Decision & Reasons Issued:
On 19th November 2025


Before

UPPER TRIBUNAL JUDGE KEBEDE


Between

SECRETARY OF STATE FOR THE HOME DEPARTMENT
Appellant
and

TOMASZ TADEUSZ GRYC
(no anonymity order made)
Respondent


Representation:
For the Appellant: Mr K Ojo, Senior Home Office Presenting Officer
For the Respondent: Mr R Sharma, instructed by SJK Solicitors

Heard at Field House on 14 November 2025


DECISION AND REASONS

1. This is an appeal by the Secretary of State for the Home Department against the decision of the First-tier Tribunal allowing Mr Gryc’s appeal against the respondent’s decision to refuse his human rights claim further to making of a deportation order against him.

2. For the purposes of this decision, I shall hereinafter refer to the Secretary of State as the respondent and Mr Gryc as the appellant, reflecting their positions as they were in the appeal before the First-tier Tribunal.

3. The appellant is a citizen of Poland born on 26 October 1994. He claims to have entered the UK in around 2014. His exact date of entry is unknown. On 22 December 2020 he was granted settled status under the EUSS. On 06 June 2023 he was convicted for the offence of supplying a controlled drug under the Misuse of Drugs Act 1971, for which he received a sentence of imprisonment of 48 weeks/ 11 months, deferred to 1 August 2023. The offence was committed on 1 February 2022 (see page 165 of the error of law bundle).

4. On 19 September 2023 the respondent made a decision to deport the appellant in accordance with section 5(1) of the Immigration Act 1971, on the basis that his deportation was deemed to be conducive to the public good and that he was liable to deportation under section 3(5)(a) of the Immigration Act 1971. A Stage One Liability for Deportation Decision notification was issued and served on him on 3 October 2023. He lodged an appeal against that decision under regulation 6 of the Immigration (Citizens’ Rights Appeals) (EU Exit) Regulations 2020.

5. On 19 December 2023 a Deportation Order was signed and issued, along with a Deportation Decision which was subsequently served on the appellant the same day. The appellant made written representations in response on 29 December 2023, raising human rights issues which were treated as a human rights claim.

6. In that claim, reliance was placed upon the appellant’s settled status in the UK and the fact that he had been working and exercising his Treaty rights in the UK and that his parents, brother and Polish partner were resident and settled in the UK. It was submitted that the appellant was not a serial offender but that there had been an isolated incident, and he should not be removed from the UK.

7. In a statement produced with the representations, the appellant claimed to have been unaware of the nature of the products he was delivering and had simply trusted the person who had asked him to deliver it. He had lost his job due to Covid and was travelling to Scotland to see a friend and had agreed to take a package for a friend who paid him to do that. He had established a family and private life in the UK. He had his parents, a brother and a niece here. He had been with his partner, Patrycja Katarzyna Kuklinska, (a Polish citizen born on 15 July 1994 with settled status under the EUSS) since August 2020 and they planned to get married. He would not get involved in criminal activities again. The appellant also produced statements from his partner and parents, together with photographs of himself with his family, and his HMRC records.

8. The appellant’s human rights claim was refused by the respondent in a decision dated 26 March 2024. The respondent considered that the exceptions to deportation at paragraphs 13.2.3 and 13.2.4 of the Immigration Rules did not apply and that, in accordance with paragraph 13.1.1 of the Immigration Rules, the public interest required the appellant’s deportation. It was not accepted that he met the private life exception to deportation because he had not been lawfully resident in the UK for most of his life, having only been in the UK lawfully for nine years. As for the family life exception to deportation, it was not accepted that the appellant had a genuine and subsisting relationship with his partner as there was no evidence to demonstrate that the relationship was formed in the UK two or more years prior to his immigration status becoming precarious due to his criminality. Neither was it accepted that it would be unduly harsh for the appellant’s partner to live in Poland with him, or to remain in the UK without him. The respondent did not accept that there were very compelling circumstances which outweighed the public interest in the appellant’s deportation and concluded that it would not be disproportionate to refuse to revoke the deportation made against him.

9. The appellant appealed against that decision. His appeal came before the First-tier Tribunal on 16 October 2024. The judge heard from the appellant, his partner and his parents. The judge did not accept as credible the appellant’s account of having been unaware of the contents of the package which he took to Glasgow and did not accept that his partner and parents were unaware of its contents. The judge accepted, however, that the appellant could not be treated as a foreign criminal under Section 117C/117D of the Nationality, Immigration and Asylum Act 2002, finding that it could not be said that he had been convicted of an offence that had caused serious harm, since the police had intervened during the passage of the parcel, and it did not come into public hands. The judge had some concerns about the evidence of the appellant’s relationship with his partner, but ultimately accepted that they were partners in a genuine and subsisting relationship and that they planned to marry and start a family. He accepted that the effect of the appellant’s deportation on his partner would be unduly harsh. He also took into account the compelling circumstances of the appellant’s parents and brother having EUSS status and the impact on them of his deportation, noting that his only relatives in Poland were his brother and distant relatives such as cousins. The judge allowed the appeal on that basis, in a decision promulgated on 21 October 2024.

10. The Secretary of State sought permission to appeal to the Upper Tribunal on the grounds that the judge had made a material misdirection of law on the application of the Article 8 consideration under S117A -S117D, having found that the appellant did not fall within the definition of a foreign criminal and that he was not bound by section 117C and D, but then failing to apply the Article 8 proportionality assessment under section 117B in determining whether an Article 8 interference was justified. The grounds asserted further that the judge’s finding, that the impact of the appellant’s deportation would be unduly harsh on his partner and that there were compelling family circumstances, was only briefly outlined and lacking any depth of reasoning, and that there was no evidence to show the appellant and his partner could not return to Poland together to make a new life for themselves.

11. Permission was granted in the First-tier Tribunal on the following basis:

“2. The grounds assert in summary that the Judge made a material misdirection of law on the application of the Article 8 consideration under section 117A-117D of the Nationality, Immigration and Asylum Act 2002.

3. It is arguable that the Judge has had regard to section 117C of the 2002 Act rather than section 117B of the 2002 despite his finding 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 this ground which is the only ground asserted.”

12. The appellant produced a rule 24 response, opposing the appeal.

13. The matter came before the Upper Tribunal on 18 February 2025 where it appears that the Deputy Upper Tribunal Judge announced at the hearing that there was an error of law in the First-tier Tribunal’s decision and went on to hear submissions for the re-making of the decision, but then in a determination issued on 13 May 2025 found no material error of law and upheld the judge’s decision. Following an application by the Secretary of State, and directions from the Upper Tribunal, the Deputy Upper Tribunal Judge’s decision was set aside on the grounds of procedural irregularity and unfairness, with directions for a fresh error of law decision to be made by another Upper Tribunal Judge.

14. The matter then came before me. It was agreed by all parties that, although expressed as one ground, the Secretary of State’s original grounds of appeal included two challenges, namely the application of the wrong test in relation to Article 8 and an inadequacy of reasoning.

15. Mr Ojo submitted, with regard to the first challenge, that the judge had failed to refer to, and apply, the test in section 117B and the five stage test in Razgar, R v. Secretary of State for the Home Department [2004] UKHL 27 and had failed to conduct a balance sheet approach as recommended in TZ (Pakistan) and PG (India) v The Secretary of State for the Home Department [2018] EWCA Civ 1109. With regard to the second challenge, the judge had failed to give reasons for his findings, contrary to the guidance in Budhathoki (reasons for decisions) [2014] UKUT 341. Mr Ojo submitted that the judge had failed to consider both the ‘stay’ and ‘go’ scenario when considering the ‘unduly harsh’ question, he had failed to consider the ties which the appellant and his partner had to Poland, he had failed to explain what were the compelling circumstances relating to the appellant’s parents, and he had failed to take the public interest into account. It was therefore impossible for the parties to know why the judge reached the decision that he did.

16. Mr Sharma relied upon the rule 24 response and submitted that there had been no misdirection in law and that the judge’s decision was properly reasoned. He submitted that the judge had made it clear that section 117C and 117D did not apply in the appellant’s case and had, by his reference to Chege, considered section 117B. Mr Sharma submitted that the judge effectively carried out a balancing exercise, and was not obliged to use the structure of a balance sheet approach. The judge was aware of the appellant’s criminality but focussed on mitigating factors at [22] of his decision. It was clear from the decision why the Secretary of State had lost and why the appellant had succeeded in his appeal.

Decision on the Error of Law

17. I have no hesitation in concluding that the judge erred in law in his decision on both grounds of challenge. Having found that the appellant did not meet the definition of a ‘foreign criminal’ in section 117D of the 2002 Act, since the offence for which he had been convicted was not one that caused serious harm (a finding that the Secretary of State has not sought to challenge), and that he was therefore not bound by section 117C or section 117D, the judge nevertheless went on to consider and apply the requirements of section 117C rather than those in section 117B. I do not accept Mr Sharma’s submission that the judge had, by his reference to Chege, impliedly considered section 117B, when it was clear from his reference to the ‘unduly harsh’ test and ‘compelling circumstances’ (albeit that the test should have been ‘very compelling circumstances’) that he was applying the considerations in section 117C and the exceptions to deportation therein. There was no consideration of, or application (impliedly or not) of the five stage test in Razgar.

18. In addition, the judge’s findings and conclusions are devoid of reasoning. Irrespective of the matter of the wrong test being applied, there were simply no reasons given by the judge as to why he considered the appellant’s deportation to be unduly harsh on the appellant’s partner, or why he considered the fact that he was in a genuine and subsisting relationship with her and wanted to start a family with her was sufficient to meet that test. The judge failed to give any consideration to the ‘go’ scenario, namely whether it would be unduly harsh to expect the appellant’s partner to move to Poland with him. Neither were any reasons given as to why the impact of deportation on the appellant’s parents and brother amounted to compelling circumstances. With regard to what would have been the correct test, there were no exceptional circumstances properly identified by the judge which would make the appellant’s removal unduly harsh and thus disproportionate under Article 8. I agree with Mr Ojo that the Secretary of State was left without any proper understanding of why the appellant had succeeded.

19. Accordingly, the judge’s decision has to be set aside, and I therefore set it aside to the extent stated.

Re-making of the Decision

20. Both parties were content for the decision to be re-made without a further hearing, on the evidence already before me. Mr Sharma’s instructions from the appellant were that there was no further evidence to be considered. Both parties made brief submissions on the re-making of the decision.

21. There was no disagreement that there were findings which had not been challenged, namely the finding that the appellant did not meet the definition of a ‘foreign criminal’ and that section 117C and D did not apply, and the finding that he was in a genuine and subsisting relationship with his partner. I have therefore re-made the decision on the basis that those are preserved findings.

22. On the basis that it is accepted that the appellant has a genuine and subsisting relationship with his partner, I accept that Article 8 is engaged on both family and private life grounds. The appellant’s removal from the UK would interfere with his family and private life, should his family members choose to remain in the UK. As for the issue of proportionality, I consider matters both in the appellant’s favour and those against.

23. In the appellant’s favour is the fact that he has both parents and a brother and niece in the UK who are settled here, and that he has been accepted as having a genuine and subsisting relationship with his partner who is also settled here. He has been working in the UK and exercising his treaty rights and he was also settled in the UK, with ILR having been granted under the EUSS in December 2020. He has been residing in the UK lawfully, and has now been here for around 10 years. He has only the one conviction and there is no evidence to suggest that there is a risk of re-offending.

24. However, the appellant has been convicted of a criminal offence, albeit an offence which was not found to have caused serious harm (on the previous unchallenged findings), but nevertheless an offence which is serious, considering the harm caused by drugs. The appellant’s claim, that he was not aware that he was carrying drugs and that it was an innocent mistake, was not accepted by the First-tier Tribunal Judge, and that finding has not been challenged. There is no evidence other than the appellant’s own word and that of his partner and parents that he would not re-offend. His partner and parents, in their statements, state that they will ensure that he does not re-offend, but they were unable to prevent him offending previously, and the First-tier Tribunal Judge, in his decision, did not find their evidence to be reliable, to the extent that he did not accept that they were unaware of the contents of the package the appellant was taking to Scotland. I can place little weight upon the self-serving assertions made by the appellant and his family members that he would not re-offend. There is, furthermore, very limited evidence about the appellant’s relationship with his parents and his brother and as to how often they see each other and the role they play in each other’s lives. Although the appellant was accepted by the judge as being in a genuine and subsisting relationship with his partner, the judge nevertheless had concerns about the relationship. I do not have the benefit of any further evidence about the relationship, either oral or documentary. Whilst plans to marry were previously mentioned, there is no evidence of those plans materialising or when it is expected that they would. There are no children involved in the relationship.

25. In addition, no reasons have been provided as to why the appellant’s partner would not be able to return to Poland with the appellant, nor why there are any obstacles to their family life continuing there. The appellant’s partner is a Polish national herself and has only been living in the UK since 2020. There is no evidence of strong ties to the UK for either of them, other than the fact of the appellant’s parents and brother being here, and there is no evidence of any obstacles to integration into life in Poland for either of them. The evidence available to me is, as already stated, limited. It dates back to 2023 and is not very recent. It is a matter of choice for the appellant’s partner whether she returns to Poland with him, but in either event, even if she does not, there is no reason why she cannot visit him frequently. The appellant has been working in the UK and has provided no reasons why he would be unable to find work in Poland. The same can be said for his partner. The First-tier Tribunal Judge referred at [22] to the appellant having a brother and extended family in Poland and, in her statement, his partner referred to her own parents and step-brother remaining in Poland. The appellant would therefore have family support on return. However even if he did not, there is no reason why he could not re-establish himself in Poland. He lived there for the majority of his life, he speaks the language and is familiar with the culture. He would be able to integrate into society without problems.

26. As for the public interest considerations in section 117B, the maintenance of an effective immigration control is in the public interest. The appellant has committed a criminal offence, irrespective of the fact that he is not considered as a ‘foreign criminal’ for the purposes of section 117D. I do not know if he speaks English, but even assuming that he does, that is only a neutral factor. The same can be said of the fact that he has been working and is financially independent. Although his immigration status has been lawful and not precarious, he is now the subject of a deportation order and the respondent considers his deportation to be conducive to the public good, albeit that he is not subject to the requirements of section 117D.

27. Taking all of those matters into account, it seems to me that the balance falls squarely in favour of the public interest. The appellant has produced no further evidence since his appeal in the First-tier Tribunal a year ago and, on the basis of that limited evidence, I cannot conclude that there is anything compelling or exceptional about his circumstances such as to render his removal from the UK unduly harsh or disproportionate. I do not accept that his removal from the UK would be in breach of Article 8 and I therefore dismiss the appeal.

Notice of Decision

28. The Secretary of State’s appeal is accordingly allowed. The decision of the First-tier Tribunal Judge is set aside and the decision re-made by dismissing the appellant’s appeal against the refusal of his human rights claim.


Signed: S Kebede
Upper Tribunal Judge Kebede

Judge of the Upper Tribunal
Immigration and Asylum Chamber

17 November 2025