Tribunal decisions

The decision

IN THE UPPER TRIBUNAL
IMMIGRATION AND ASYLUM CHAMBER
Case No: UI-2025-000095

First-tier Tribunal No: HU/01390/2022

THE IMMIGRATION ACTS

Decision & Reasons Issued:
On 28 May 2025

Before

UPPER TRIBUNAL JUDGE BULPITT
DEPUTY UPPER TRIBUNAL JUDGE GIBBS

Between

SECRETARY OF STATE FOR THE HOME DEPARTMENT

Appellant
and

KRASIMIR DIMITROV MINEV
(NO ANONYMITY ORDER MADE)
Respondent

Representation:
For the Appellant: Mr R Ross, Counsel instructed by the Government Legal Department
For the Respondent: Dr S Chelvan, Counsel instructed by Cross Legal Services

Heard at Field House on 12 May 2025

DECISION AND REASONS
1. This is an appeal brought by the Secretary of State for the Home Department against the decision of First-tier Tribunal Judge O’Garro (the Judge) to allow Mr Minev’s appeals against decisions made by the Secretary of State for the Home Department to refuse his human rights claim and his application for leave to remain under the European Union Settlement Scheme (EUSS). Those decisions were made in the context of a deportation order which the Secretary of State for the Home Department made in respect of Mr Minev on 6 September 2022 while he was serving a sentence of 4 years and 38 weeks imprisonment having committed offences of supplying Class A drugs and possessing offensive weapons.
2. Although it is the Secretary of State for the Home Department who brings this appeal, for clarity, in this decision we will refer to the parties as they were in the First-tier Tribunal, where Mr Minev was the appellant and the Secretary of State for the Home Department was the respondent.
Anonymity
3. Dr Chelvan asked us to make an anonymity direction preventing the reporting of anything which might lead to the identification of the appellant or a member of his family. He argued that the reporting of the appellant’s details would lead to the identification of his child who would suffer adverse consequences as a result. Dr Chelvan submitted that this would be the case even if the details of the child and his mother were anonymised in this decision arguing that in those circumstances there was a risk of “jigsaw identification” leading to the child’s details becoming known. The respondent was neutral on this issue and Mr Ross made no submissions about it.
4. We have had regard to Guidance Note 2022 No 2: Anonymity Orders and Hearings in Private issued by the President of the Upper Tribunal Immigration and Asylum Chamber on 4 February 2022. That Guidance Note begins with a reminder of the general rule that courts conduct their business publicly and the importance of open justice identified in cases such as A v BBC (Scotland) [2014] UKSC 25. The guidance states that the principle of open justice is the starting point when considering an anonymity order and given its importance, that an anonymity order should only be made to the extent the law requires it or it is found necessary to do so. At [25] the guidance says that “The fact that someone has committed a criminal offence will not justify the making of an anonymity order, even if it is known that such a person has children who may be more readily identified if the details of the person are known”. At [33] and [34] the guidance identifies that the names of children, their school, teacher or any social worker or health professional will not normally need to be disclosed and that the name and address of a parent other than the appellant may also need to be withheld to preserve the anonymity of a child.
5. Applying this guidance, and giving appropriate weight to the importance of open justice and its role in maintaining public confidence and ensuring that judges are accountable in performance of their judicial duties, we do not consider an anonymity order to be necessary in this case. In reaching this conclusion we note that there was no anonymity order made in relation to the appellant’s criminal proceedings, meaning his name and the details of his criminal convictions will therefore already be in the public domain. We are satisfied that in all the circumstances it is appropriate to anonymise the appellant’s partner and child who we will refer to as “A” and “B” respectively. We will not include any detail in this decision that might lead to the identification of schools or health professionals, however we consider an order prohibiting the reporting of details which might led to the identification of the appellant would be disproportionate. We therefore decline to issue an anonymity direction.
Background
6. The appellant is 32 years old and a citizen of Bulgaria. He has been living in the United Kingdom since October 2010. The appellant was required to apply for leave to continue residing in the United Kingdom under the EUSS following the United Kingdom‘s departure from the European Union on 31 January 2020 and he submitted such an application on 1 July 2021.
7. The appellant has committed criminal offences during his residence in the United Kingdom. In September 2015 he was fined for possessing cannabis and failing to surrender to custody. On 4 April 2021 he was stopped by police in a car with another male and found to be in possession of cocaine, ecstasy (MDMA) tablets, a large amount of cash, a knuckle duster, and two knives. His home was later searched and cocaine was discovered in his bedroom along with scales and bags. His phone was interrogated and revealed an “extensive history” of involvement in drugs deals. He was remanded in custody and later pleaded guilty to two offences of possessing class A drugs with intent to supply them, one offence of being concerned in supplying class A drugs, one offence of possessing an offensive weapon and two offences of possessing a blade. He was sentenced for those offences on 26 November 2021 at Kingston Crown Court by Mr Recorder Glyn QC (the sentencing Judge). For each of the drugs offences the appellant was given concurrent sentences of 4 years and 38 weeks imprisonment. For the two knife offences the appellant was given 6 month sentences of imprisonment to be served concurrently with the drugs sentence and no separate penalty was imposed for the possession of the knuckle duster.
8. On 29 April 2022 the respondent issued the appellant with notice of her decision to deport him in view of his criminal convictions (although it was not served on him until 4 May 2022). The appellant replied to that notice the same month by raising a human rights claim; that his deportation would be incompatible with the family life he shared with his partner and child, and with the private life he had established in the United Kingdom.
9. On 6 September 2022 the respondent issued a decision refusing the appellant’s human rights claim on the basis that the public interest in deportation outweighed his private and family life in the United Kingdom and made a deportation order against the appellant. The same day the respondent issued a decision refusing the appellant’s application for leave under the EUSS on the basis he did not meet the suitability requirements of the scheme because he was subject to a deportation order. The appellant submitted an appeal to the First-tier Tribunal. On 25 August 2023, while that appeal was still outstanding, the appellant was released from detention and he has remain on immigration bail since.
The appeal to the First-tier Tribunal
10. It is apparent from [9] of the Judge’s decision, that the appeal initially lodged by the appellant in September 2022 was an appeal by virtue of section 82(1)(b) of the Nationality Immigration and Asylum Act 2002 (the 2002 Act) against the refusal of his human rights claim. It is also apparent from [32] and [33] of the Judge’s decision that there was some “concern” in the First-tier Tribunal about whether an appeal was ever lodged against the respondent’s decision to refuse the appellant’s EUSS application, though it is acknowledged that there was a right of appeal against that decision by virtue of Regulation 3 of The Immigration (Citizens Rights Appeals) (EU Exit) Regulations 2020 (the 2020 Regulations). That “concern” does not appear to have been explicitly resolved in the Judge’s decision.
11. We asked the parties for clarification of whether there had been an appeal against the refusal of the EUSS application. Neither party was able to identify a written notice of appeal against that decision which complied with rule 19 of The Tribunal Procedure (First-tier Tribunal) (Immigration and Asylum Chamber) Rules 2014. Dr Chelvan however referred to the appeal skeleton argument dated 23 November 2023 which was submitted by the appellant in response to directions that had been issued by the First-tier Tribunal and which clarified at [4] and [5] that the appeal lodged was against both the human rights decision and the decision to refuse the EUSS application. Dr Chelvan submitted that despite there being directions requiring her to do so, the respondent had not replied to that skeleton argument and argued that in those circumstances, where the Judge’s decision includes at [118] specific consideration of the EUSS decision it should be inferred that the First-tier Tribunal accepted that there was a valid appeal against the refusal of the EUSS application. Mr Ross acknowledged that it did appear that the Judge accepted that there were two appeals for consideration.
12. We accept Dr Chelvan’s submissions and conclude that by the time of the hearing before the Judge, the First-tier Tribunal had accepted that the appellant had lodged two appeals, one against the refusal of the human rights claim and one against the refusal of the EUSS application. We note in reaching that conclusion the First-tier Tribunals’ wide ranging case management powers under rule 4 of its Procedure Rules. We are satisfied therefore that the Judge was tasked with determining those two appeals.
The Legal Framework
Human Rights Appeal
13. Section 3(5) of the Immigration Act 1971 provides that a person who is not a British citizen is liable to deportation from the United Kingdom if the Secretary of State deems his deportation is conducive to the public good. Section 32 of the UK Borders Act 2007 defines a ‘foreign criminal’ as someone who is not a British citizen and who has been sentenced to a period of imprisonment of at least 12 months and provides that the deportation of a foreign criminal is conducive to the public good, requiring that the Secretary of State must make a deportation order against a foreign criminal and that he must not revoke it unless an exception under section 33 applies. Exception 1, provided by section 33(2) applies where removal in pursuance of the deportation order would breach the person’s Convention rights.
14. By virtue of section 84(2) of the 2002 Act the permitted ground of appeal against the decision to refuse the appellant’s human rights claim is that the decision is unlawful under section 6 of the Human Rights Act 1998. That section provides that it is unlawful for a public authority to act in a way which is incompatible with a Convention right. The Convention right in question in the appellant’s case is the right under Article 8 of the Convention on Human Rights to respect for private and family life. Article 8(1) of the Convention provides for the right to respect for a person’s private and family life, which Article 8(2) says must not be interfered with by a public authority: “except as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic wellbeing 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.”
15. Where a person has a private and family life in the United Kingdom which engages Article 8(1) then it falls to the respondent to justify the proposed interference under Article 8(2) – the “public interest question.” (see section 117A(3) of the 2002 Act) The assessment for the Tribunal when answering this question is whether, in all the circumstances, the public interest in the deportation of foreign criminals and the maintenance of effective immigration control means that interference with that right is proportionate.
16. Part 5A of the 2002 Act (sections 117A – 117D) provides the Tribunal with a complete code and structure for answering the public interest question. Its purpose is to promote consistency, predictability and transparency in decision making and to reflect the Government’s and Parliament’s view of how as a matter of public policy, the balance between an individual’s right to a private and family life and the state’s right to remove foreign criminals should be struck ( see part 2 of HA (Iraq) v Secretary of State for the Home Department [2022] UKSC 22)
17. Within Part 5A of the 2002 Act, section 117B(1-5) lists considerations which are relevant in all cases, whilst s117C lists the considerations applicable when the appellant’s deportation as a “foreign criminal” is proposed. “Foreign criminals” are defined in s117D and includes a person who is not British and has been sentenced to a term of imprisonment of at least twelve months.
18. Section 117C(1) provides that the deportation of foreign criminals is in the public interest and s117C(2) says that the more serious the offence the greater the public interest. S117C(4) and (5) contain two Exceptions to the public interest in deportation which apply in the case of foreign criminals who have been sentenced to less than four years imprisonment. The Exceptions do not apply to foreign criminals who like the appellant receive sentences in excess of four years imprisonment.
19. Exception 1 (s117C(4)) focuses upon an appellant’s “private life.” It’s requirements are that the person (i) has been lawfully resident in the United Kingdom for more than half their life; (ii) is socially and culturally integrated in the United Kingdom and (iii) there would be very significant obstacles to his integration into the country to which it is proposed to deport him. Exception 2 (s117C(5)) focuses on the effect of the proposed deportation upon those with whom the person enjoys “family life” and applies where a person has a genuine and subsisting parental relationship with a ‘qualifying child’ (defined as a British citizen under the age of 18 or a person under the age of 18 who has lived in the UK for a continuous period of seven years or more) or a genuine and subsisting relationship with a ‘qualifying partner’ (defined as a British citizen or a person who is settled in the United Kingdom) and the effect of deportation on that child or partner would be “unduly harsh”.
20. Section 117C(6) of the 2002 Act provides the context for conducting the overarching proportionality assessment, balancing the appellant’s right to respect for their private and family life against the public interest in deportation, which is required in all cases such as the appellant’s where the Exceptions cannot apply because appellant was sentenced to more than four years imprisonment. All the relevant circumstances of the case must be considered within this proportionality assessment (See [51] of the Supreme Court’s decision in HA (Iraq)). Section 117C(6) provides that the public interest requires deportation unless “there are very compelling circumstances over and above those described in Exceptions 1 and 2”. When deciding whether there are such very compelling circumstances over and above the two Exceptions it is not a legal requirement that a Judge considers first whether the requirements of the Exceptions are met, however it would in principle be conducive to transparent decision making to do so (see Yalcin v Secretary of State for the Home Department [2024] EWCA Civ 74).
EUSS Appeal
21. By virtue of Regulation 8 of the 2020 Regulations, the permitted grounds of appeal against the decision to refuse the appellant’s EUSS application are (1) that the decision breaches a right the appellant has by virtue of the Withdrawal Agreement between the United Kingdom and the EU and (2) that the decision is not in accordance with the EUSS as set out in Appendix EU to the Immigration Rules. The relevant provision of Appendix EU is paragraph EU15(1)(a) which provides that an application will be refused on grounds of suitability where the applicant is subject to a deportation order or a decision to make a deportation order.

The Judge’s Decision
22. The Judge set out the parties’ competing cases at [10] – [28] of her decision. The appellant’s case was that he had acquired a permanent right of residence in the United Kingdom under EU law having lived and worked in the country since he was eighteen years old. He has a Bulgarian partner (A) who has also lived in the United Kingdom since 2011 and who has been granted settled status in the United Kingdom. The appellant lived with his partner from 2017 until he went to prison in 2021 and they have a child (B) together who was five years old at the time of the hearing. The appellant’s imprisonment had a detrimental effect on A and B and his deportation to Bulgaria would result in his family being destitute. The appellant argued that he was remorseful for his offending and that he presented a low risk of re-offending in the future. The appellant further argued a “new matter” which was that the deportation order breached rights he had under the Withdrawal Agreement and was therefore unlawful meaning that interference with the appellant’s Convention rights was not in accordance with the law.
23. The respondent’s case was that the appellant did not have a genuine and subsisting relationship with either A or B, that deportation would not be unduly harsh on either of them in any event, that the appellant would not face very significant obstacles to his reintegration in Bulgaria and that in all the circumstances there were no very compelling circumstances that outweighed the public interest in the appellant’s deportation. The respondent consented to the ”new matter” being argued (see [34] of the decision) but argued that the appellant’s rights under the Withdrawal Agreement had not been breached and the deportation order was therefore lawful.
24. At [35] and [36] the Judge records that she heard oral evidence from the appellant, A, the appellant’s mother and the appellant’s brother. At [53] the Judge records that she makes her decision in the light of all the evidence and the submissions that had been made.
25. In her “Considerations and Findings” the Judge deals first between [58] – [65] with the argument that the deportation order breaches rights the appellant has under the Withdrawal Agreement concluding that the appellant had failed to show that the decision to deport breached any rights he had under the Withdrawal Agreement or that the decision was otherwise than in accordance with the Immigration Act 1971. The appellant has not sought to argue that this finding was wrong and we need say no more about it.
26. The Judge then moved on, starting at [66], to consider whether the respondent’s decision to deport the appellant breached his human rights. At [67] – [72] she identifies the public interest in the appellant’s deportation as a result of his criminal offending and records that that the public interest will only be outweighed where there are very compelling circumstances over and above the two Exceptions identified in section 117C of the 2002 Act. With that in mind the Judge then assesses the extent to which the appellant meets the requirements of those Exceptions.
27. In relation to Exception 1, it was conceded at [75] that the appellant had not been lawfully resident in the United Kingdom for more than half his life. The Judge found at [76] – [78] that the evidence of the appellant’s employment record, relationships with family and friends, lengthy period of residence in the United Kingdom and work since his release from prison established that he was socially and culturally integrated in the United Kingdom notwithstanding his offending and period of incarceration. At [79] – [83] the Judge considered whether the appellant would face very significant obstacles to integration in Bulgaria. She noted that the appellant had retained “linguistic ties” to Bulgaria, that he has extended family in Bulgaria including uncles and cousins who would support him, that the appellant was fit and well and could find employment in Bulgaria and that the appellant’s brother who lives in the United Kingdom would continue to support the appellant in Bulgaria. On this basis the Judge concluded that the appellant would not face very significant obstacles to integration in Bulgaria. Having fulfilled only one of its three criteria the Judge therefore concluded that the appellant cannot satisfy the requirements of Exception 1 to the public interest in deportation.
28. The Judge then moved on to consider Exception 2 to the public interest in deportation. Contrary to the respondent’s arguments, the Judge found at [88] that the evidence (including the oral evidence) established that the appellant was in a genuine and subsisting relationship with A and that he was in a genuine and subsisting parental relationship with B. She then moved on to assess whether the effect of the appellant’s deportation would be unduly harsh on either A or B, self-directing at [89] by reference to the Supreme Court decision in HA (Iraq) that “'unduly harsh' does not equate with uncomfortable, inconvenient, undesirable or merely difficult. Rather, it poses a considerably more elevated threshold. 'Harsh' in this context, denotes something severe, or bleak. It is the antithesis of pleasant or comfortable. Furthermore, the addition of the adverb 'unduly' raises an already elevated standard still higher.”
29. At [90] the Judge records that the evidence from the appellant and A about the adverse effect that the appellant’s imprisonment had on the family, and on B in particular, was not challenged and she placed weight on that evidence. At [91] the Judge “take[s] into account” a report from an independent social worker about the appellant’s family and a report from a psychologist about A. The Judge notes at [92] that the psychologist’s diagnosis that A has been suffering with anxiety and depressive disorder and A’s evidence that she has been on medication as a result of that condition for three years was not challenged. On the basis of that evidence, the Judge concludes at [93]- [94] that it would be unduly harsh for A to remain in the United Kingdom without the appellant as she struggled to cope when he went to prison, her poor mental health would be exacerbated by separation and the relationship is one of “significant duration”.
30. The Judge then considers the effect of the appellant’s deportation on A in the “go scenario” whereby A returns to Bulgaria with the appellant. At [95] the Judge concludes that the appellant would be able to work in Bulgaria, that both he and A are Bulgarian nationals, and as such they speak the language and understand the culture in Bulgaria. The Judge records that both the appellant and A have extended family in Bulgaria, including A’s parents who have recently returned to Bulgaria from the United Kingdom along with A’s brother and his family in order to look after A’s grandparents. In these circumstances the Judge finds that the appellant and his family will be assisted in securing accommodation and finding work, and concludes that the appellant and A “will be able to carry on their family life in Bulgaria, the country of their birth”. At [96] the Judge recognises A’s anxiety and depression but finds that there is a high probability that as she will be with the appellant her mental health will improve and that she could receive treatment for the condition in Bulgaria in any event. The Judge concludes the paragraph with her finding that “it would not be unduly harsh for the appellant’s partner to go with him to Bulgaria.”
31. At [97] the Judge begins her consideration of whether the effect of the appellant’s deportation would be unduly harsh on B, noting that her assessment of B’s best interests takes place within this context. Just as she did in her consideration of the effect of deportation on A, the Judge started by assessing the “stay scenario” whereby B stays in the United Kingdom without the appellant. At [98] the Judge notes that the best interests of a child involve being brought up by both parents, to have the stability and continuity of social and educational provisions and the benefit of growing up in the cultural norms of the society to which they belong. In this context the Judge notes that B is of Bulgarian nationality and that he is “very young and at his age his main focus will be on his parents”
32. Referring again to the evidence of the independent social worker and the psychologist that the impact of further separation from the appellant on B could be profound and may result in separation anxiety disorder, the Judge found at [102] that the appellant and B share a close bond and that the appellant’s deportation will have a particularly significant impact on B. The Judge then notes the “unchallenged evidence” that A could not cope with B on her own when the appellant was in prison and that B did not cope well with the separation from his father at that time either.
33. Unlike when assessing of the impact of the appellant’s deportation on A, the Judge does not go on to consider the “go scenario” whereby B goes to Bulgaria with the appellant and A. Instead at [104] the Judge concludes on the basis of the findings she has made, that the effect of the appellant’s deportation would be unduly harsh on B and at [105] that the appellant satisfied the requirements of Exception 2.
34. Using the “balance sheet approach”, at [106] – [116] the Judge then evaluates, whether on the basis of the findings of fact she has made, there are very compelling circumstances that outweigh the public interest in the appellant’s deportation. The seriousness of the offences the appellant committed and his failure to satisfy the requirements of Exception 1 are recorded as factors in favour of deportation. Factors against deportation are recorded to include at [110] the fact the appellant satisfied the requirements of Exception 2, the best interests of B, the length of the appellant’s residence and ties to the United Kingdom , the effect of deportation on A (acknowledging that it would not be unduly harsh for her to return to Bulgaria with the appellant) and the appellant’s rehabilitation and low risk of re-offending. Having set out those factors the Judge balances them at [116] concluding:
I find that the factors going against deportation in combination, amount to very compelling circumstances that outweigh the public interest in deportation. In reaching this conclusion I have placed particular weight on the circumstances of the appellant’s son and the detrimental effect that being separated from him has already had on him and the fact that he continues to suffer the emotional consequences of that separation and the fear of being separated again.
35. Accordingly the Judge concluded that the interference with the appellant’s private and family life was disproportionate, allowing the human rights claim and having concluded that on this basis the deportation order must “fall”, the judge found that the refusal of the appellant’s EUSS application must also “fall”. The Judge therefore recorded her decision that “The appeal is allowed”.
The Agreed Error of Law
36. The respondent was granted permission to appeal against the Judge’s decision by another First-tier Tribunal Judge on the ground that “it is arguable (i) the judge failed to have regard to relevant considerations and failed to give adequate reasons in relation to findings on the impact of deportation on the Appellant’s son and (ii) omitted relevant factors from the “very compelling circumstances” consideration.
37. In his concise skeleton argument Mr Ross identified the asserted error of law with clarity. He argues that Exception 2 is only satisfied if the answer to both the “stay scenario” and the “go scenario” is that the effect of deportation would be unduly harsh on the relevant child or partner. Mr Ross argues therefore that the Judge’s failure consider the “go scenario” in respect of B before concluding that the requirements of Exception 2 were met, amounted to an error of law. Mr Ross goes on to assert that this was a material error because it contaminated and rendered deficient the Judge’s assessment of the fundamental issue in the appeal namely, whether there were very compelling circumstances over and above the Exceptions to outweigh deportation such that the Judge’s decision had to be set aside.
38. In his rule 24 response to the appeal to this Tribunal, Dr Chelvan accepts that the Judge failed to address the “go scenario” in relation to B. Dr Chelvan also identifies another error unwittingly made by the Judge which we consider in the following section of this decision. In these circumstances Dr Chelvan agrees that the decision of the Judge must be set aside, though there is disagreement between the parties about what should happen next, which we address later in this decision.
39. We find that the Judge failed to complete the necessary evaluative exercise before concluding that the effect of the appellant’s deportation will be unduly harsh on B. As Lord Hamblen made clear at [17] of his judgment in HA (Iraq) at the Supreme Court, the analysis required by Exception 2 of the 2002 Act must be interpreted in line with the Immigration Rules which distinguish between the “go scenario” and the “stay scenario” and require consideration of both. Lord Hamblen stated that consideration of whether the requirements of Exception 2 are met must therefore involve consideration of both scenarios:
Whilst section 117C(5) poses the single question of whether the effect of deportation on a qualifying child or partner would be “unduly harsh”, as the Court of Appeal held, it should be interpreted in line with paragraph 399 so that both scenarios are addressed. This means that the unduly harsh test is only satisfied if the answer in relation to both scenarios is that the effect would be unduly harsh.
40. The failure to follow this guidance and assess both the “go scenario” and the “stay scenario” in respect of B before determining that the effect of the appellant’s deportation on him would be unduly harsh was therefore an error of law. We are further satisfied that it was a material error of law notwithstanding the fact that the appellant could not benefit from the short cut provided by Exception 2, because of the length of sentence he received and the issue to be resolved was whether there were very compelling circumstances over and above those described in Exceptions 1 and 2. As Mr Ross identified, the Judge explicitly lists at [111] her finding, contaminated by error, that the appellant would have satisfied Exception 2 as being one of the factors in the appellant’s favour when assessing whether there were very compelling circumstances over and above the Exceptions. Likewise the judge listed the best interests of B as another factor in the appellant’s favour in the very compelling circumstances, when the assessment of those best interests was incomplete as the “go scenario” had not been considered.
41. In these circumstances we agree with the parties that the decision of the Judge contains a material error of law such that it must be set aside.
The second error of law
42. On behalf of the appellant, it is asserted that the decision of the Judge contained a further error, for which the Judge was not responsible, but which would also mean that the decision must be set aside. To establish that error the appellant applies in accordance with rule 15(2A) of the Tribunal Procedure (Upper Tribunal) Rules 2008 to adduce further evidence that was not before the Judge. That evidence includes a copy of a British passport held by B which contradicts the Judge’s reference at [87] (based on the skeleton argument that was advanced on behalf of the appellant at the hearing before her) to B not bring British. The further evidence also includes statements from the appellant and the appellant’s solicitor in which they say the appellant did not mention the fact B was British to his legal team prior to the hearing before the Judge. At the hearing before us Dr Chelvan confirmed that the correct position is that B holds both a British and a Bulgarian passport.
43. Mr. Ross noted that it was regrettable that despite lodging his appeal in September 2022 the appellant was only now providing the evidence that B is British. Notwithstanding this delay Mr. Ross stated that he was neutral about the admission of the new evidence.
44. Given that the parties agree that the Judge’s decision involved an error of law and that therefore it must be set aside and remade, we decided to admit the further evidence so that the mistake of fact, unwittingly made by the Judge about B’s nationality, can be rectified before the decision on the appellant’s appeal is reconsidered and remade. This is consistent with the Tribunal’s overriding objective to deal with cases fairly and justly -although we do not see any good reason for the appellant’s failure to tell his legal team or the Judge about B’s nationality prior to or during the hearing.
45. We find therefore that through no fault of her own, the Judge made a mistake of fact when stating that B is not British. The reality is that B has dual British and Bulgarian nationality.
Remaking the Decision
46. In view of the agreement that the Judge’s decision contained an error of law which meant the decision had to be set aside we invited submissions from the parties about what should happen next. In summary, Mr Ross submitted that we should proceed to remake the decision immediately applying the facts found by the Judge which should be preserved. Dr Chelvan submitted that the matter should be remitted to the Judge, with her original findings of fact preserved, so that she could complete the process she started and make a new decision. Alternatively the findings of fact should be preserved and the matter remitted to the First-tier Tribunal for the decision to be remade. As a consequence of these competing submissions we have completed a staged process in our decision making considering:
i. whether the findings of fact made by the Judge should be preserved;
ii. whether to remit to the First-tier Tribunal or alternatively remake the decision ourselves;
iii. if remitting the matter whether to do so to the Judge specifically; or alternatively
iv. if remaking the decision whether to adjourn the hearing
v. and if remaking, whether to allow or dismiss the appellant’s appeal
47. We heard submissions from Mr Ross and Dr Chelvan on each of these issues on a de bene esse basis reserving our decision on each identified stage until now.
Whether to preserve the findings of fact made by the Judge?
48. As Dr Chelvan identified, the respondent was refused permission to challenge the factual findings made by the Judge none of which have been challenged by the appellant. Both parties agree that in those circumstances, with the exception of the finding that B is not British, the findings of fact made by the Judge should be preserved. We see no lawful basis nor indeed reason for disturbing those findings. We have set them out in some detail at [26] – [32] but for clarity they include:
a) The appellant has been lawfully residence in the United Kingdom since 2010
b) The appellant has maintained relationships with friends and family in the United Kingdom, has worked in the past, is working now and that he is socially and culturally integrated in the United Kingdom
c) The appellant has a genuine and subsisting relationship with A with whom he lives. A is Bulgarian but is settled in the United Kingdom having been granted indefinite leave to remain
d) The appellant has a genuine and subsisting parental relationship with B who is five years old and has lived in the United Kingdom all his life.
e) A experienced difficulties when the appellant was in prison which affected her mental health. She has been diagnosed as suffering with anxiety and depressive disorder for which she takes medication
f) A would struggle to parent alone in the future and separation from the appellant would have an unduly harsh impact on her
g) The appellant and A have retained connections to Bulgaria. The appellant has an uncle and cousins living there who would support the appellant and his family if they returned. A’s parents and her brother and his family have recently returned to live in Bulgaria to look after A’s grandparents and they will assist the appellant and his family if they returned. The appellant and his partner will therefore be able to carry on their family life in Bulgaria
h) B is very young and his main focus will be on his parents.
i) There is a close bond between the appellant and B and the appellant’s imprisonment caused B significant distress and disruption. Separation from the appellant again in the future would therefore have an unduly harsh impact on B with the risk of separation anxiety disorder.
j) The appellant would be able to work and support his family in Bulgaria as he has done in the United Kingdom
49. We add to those preserved facts the now agreed fact that B holds both British and Bulgarian nationality.
Whether to remit to the First-tier Tribunal or remake the decision in the Upper Tribunal
50. In Begum (remaking or remittal) Bangladesh [2023] UKUT 00046 (IAC) a panel consisting of the President and the Vice-President of the Upper Tribunal Immigration and Asylum Chamber considered and gave guidance on the issue we must consider of when a decision should be made in the Upper Tribunal and when it should be remitted to be remade in the First-tier Tribunal. At [11] the panel set out the relevant content of Practice Directions and Practice Statements on the issue:
11. In order to guide the exercise of this discretion there are Practice Directions and Practice Statements. These were fully set out in the recent decision of the Court of Appeal in the case of AEB v Secretary of State for the Home Department [2022] EWCA Civ 1512 at [6] and [7] as follows.
"6. Part 3 of the current Practice Directions deals with the procedure to be followed on an appeal to the UT. Paragraph 3.1 provides:
Where permission to appeal to the Upper Tribunal has been granted, then, unless and to the extent that they are directed otherwise, for the purposes of preparing for a hearing in the Upper Tribunal the parties should assume that:
(a) the Upper Tribunal will decide whether the making of the decision of the First-tier Tribunal involved the making of an error on a point of law, such that the decision should be set aside under section 12(2)(a) of the 2007 Act;
(b) except as specified in Practice Statement 7.2 (disposal of appeals by Upper Tribunal), the Upper Tribunal will proceed to re-make the decision under section 12(2)(b)(ii), if satisfied that the original decision should be set aside; and
(c) in that event, the Upper Tribunal will consider whether to remake the decision by reference to the First-tier Tribunal's findings of fact and any new documentary evidence submitted under UT rule 15(2A) which it is reasonably practicable to adduce for consideration at that hearing.
7. Paragraph 7 of the current Practice Statements provides:
Disposal of appeals in Upper Tribunal
7.1 Where under section 12(1) of the 2007 Act (proceedings on appeal to the Upper Tribunal) the Upper Tribunal finds that the making of the decision concerned involved the making of an error on a point of law, the Upper Tribunal may set aside the decision and, if it does so, must either remit the case to the First-tier Tribunal under section 12(2)(b)(i) or proceed (in accordance with relevant Practice Directions) to re-make the decision under section 12(2)(b)(ii).
7.2 The Upper Tribunal is likely on each such occasion to proceed to re-make the decision, instead of remitting the case to the First-tier Tribunal, unless the Upper Tribunal is satisfied that:-
(a) the effect of the error has been to deprive a party before the First-tier Tribunal of a fair hearing or other opportunity for that party's case to be put to and considered by the First-tier Tribunal; or
(b) the nature or extent of any judicial fact finding which is necessary in order for the decision in the appeal to be re-made is such that, having regard to the overriding objective in rule 2, it is appropriate to remit the case to the First-tier Tribunal.
7.3 Remaking rather than remitting will nevertheless constitute the normal approach to determining appeals where an error of law is found, even if some further fact finding is necessary."
51. By reference to paragraph 7.2 of the Practice Statement set out above, Dr Chelvan argues that the appellant was deprived of a fair hearing by the mistake of fact unwittingly made by the Judge about whether the appellant is British. On this basis he argues that the appeal should be remitted to the First-tier. We do not agree.
52. Whilst the decision in Begum (remaking or remittal) recognises at [17] that a mistake of fact is “a species of unfairness” it went on to confirm at [21] and [24] that paragraph 7.2(a) is a fairly strong general rule but not an absolute rule in the sense that all cases involving some species of unfairness must be remitted to the First-tier Tribunal. As identified at [24] of Begum (remaking or remittal): “it is appropriate to carefully scrutinise the nature of the error of law, the effect of the unfairness on the decision as a while along with its nature and extent as part and parcel of the exercise of discretion”
53. Here, scrutinising the nature and extent of the error and its effect on the decision of the Judge we are satisfied that there are compelling reasons why the errors of law that were made do not lead to the conclusion that the exceptional course identified in paragraph 7.2 of remittal to the First-tier is required.
54. Firstly, in relation to the nature of the error it is relevant that the mistake of fact about B’s nationality was made unwittingly by the Judge as a result of the appellant’s failure to mention to his legal team that B is British until after the hearing. Further, neither the appellant, nor A, the appellant’s mother or the appellant’s brother mentioned that B is British when they gave oral evidence before the Judge. In these circumstances it cannot sensibly be concluded that the appellant was deprived by the mistake of fact of a fair hearing before the First-tier Tribunal. On the contrary the appellant had every opportunity to make clear the correct position concerning B’s nationality to the Judge but did not do so. That the appellant was responsible for the mistake of fact that occurred is unquestionably a relevant factor in determining whether the appellant was deprived of a fair hearing as the Tribunal recognised at [17] of Begum (remaking or remittal).
55. Secondly, in relation to the extent of the error, this is not a case where the error about the nationality of B was dispositive. In fact, the Judge made several findings favourable to the appellant about which no complaint is made, including a finding that the “stay scenario” would be unduly harsh on B, despite being under the mistaken view that B is not British. Those findings have all been preserved. The topic on which the nationality of B will have the biggest impact is the “go scenario” and that issue is still to be considered.
56. Thirdly, whilst we have regard to the risk that remaking in the Upper Tribunal will deprive the appellant of the two-stage decision making process, and confining any appeal from the Upper Tribunal to a second appeals test, we note that in reality on all issues other than the “go scenario” as it applies to B, a two stage appeal process has been available to the appellant who does not seek to challenge any of the Judge’s numerous findings of fact.
57. In our view therefore the general position, made clear in both the Practice Direction and the Practice Statement of the decision being remade in the Upper Tribunal is the correct route to be followed.
Whether to adjourn remaking
58. In view of that conclusion we move on to the question of whether to adjourn for the purpose of hearing further evidence before remaking the decision. Mr Ross argued that we should remake the decision without a further adjournment, pointing out that that is the default position as identified in the Practice Direction and the specific directions that were issued to the parties in this case. Dr Chelvan argued in trenchant terms that it would be unfair and unlawful to proceed to remake the decision without adjourning to allow the appellant to adduce further updating evidence about his circumstances and those of his family.
59. We start our consideration with the fact that paragraph 3.1 of the Practice Direction at [50] above instructs parties that they “should assume” that the Upper Tribunal will proceed to re-make the decision if satisfied that the original decision should be set aside; and “in that event the Upper Tribunal will consider whether to re make the decision by reference to the first tier tribunal’s findings of fact and any new documentary evidence submitted under UT rule 15(2A) which it is reasonably practicable to adduce for consideration at that hearing” Consistent with that paragraph of the Practice Direction, the Tribunal issued directions to the parties on 14 January 2025 stating at (v) that:
“there is a presumption that, in the event of the tribunal deciding that the decision of the FtT is to be set aside as erroneous in law, the remaking decision will take place at the same hearing. The parties are expected, therefore, to have complied with rule 15(2A) (by providing any evidence which was not before the FtT) in advance of the ’error of law’ hearing.”
60. In the light of this it is significant that whilst the appellant did provide evidence in compliance with rule 15(2A), that evidence only related to the fact that B is British and no updating evidence was provided about the appellant’s family circumstances. It was clearly “reasonably practicable” for the appellant to provide documentary evidence of his current family circumstances with his rule 15(2A) application, if only in the form of additional paragraphs to the witness statement he made and submitted with the application.
61. When we asked him why documentary evidence had not been provided Dr Chelvan said it was a funding issue and argued that it was unreasonable to expect a privately funded appellant to prepare for a decision to be remade before knowing whether an error of law had been found. We do not accept this explanation. First, it runs contrary to, and is incompatible with, the Tribunal’s Practice Direction. Second, it is hard to understand how funding issues can explain a failure to include updating information in the statement of the appellant which was submitted with the rule 15(2A) application. Third, if there were funding difficulties that prevented the appellant from serving additional documentary evidence there was ample opportunity for that to be brought to the Tribunal’s attention between the directions being issued in January 2025 and the hearing in May 2025, yet there was no mention of further evidence prior to Dr Chelvan making his submissions. Fourth, the error of law in this case was agreed by both parties, who also agreed in advance of the hearing that the error was such that the decision would need to be remade. There could therefore have been no doubt that the Tribunal would be considering whether and when to remake the decision at this hearing.
62. Dr Chelvan argued that notwithstanding any procedural failings by the appellant it would be fair to adjourn the hearing before remaking to allow the appellant to obtain an updated social worker report and updated psychologist report. Dr Chelvan additionally stated that he had received instructions during the course of making his submissions that there had been a change in the relationship between the appellant and A and suggested that further evidence of that change should be obtained, though he did not specify the nature of the change. Additionally Dr. Chelvan indicated that he wanted to research the issue of the effect of B’s dual nationality.
63. Having considered this with care, we find that the vague and very late suggestion that there has been a change in the appellant’s circumstances and the belated suggestion (without any indication of how it would be funded) that the appellant would want to obtain further social worker and psychologist reports before a decision in respect of his appeal is remade, do not justify deviating from the process set out in the Practice Direction and specified in the specific directions issued in this case. Specifically, we consider that an adjournment of the remaking of the decision concerning the appellant’s appeal would not be consistent with the Tribunal’s overriding objective of dealing with cases fairly and justly. In reaching this conclusion we have regard to the significant public interest in dealing with appeals efficiently and avoiding delay, especially when the appeal concerns a foreign criminal in the context of a deportation order. As Mr Ross pointed out, further delay is not neutral but has the effect of frustrating the respondent’s expressed intention to deport the appellant. We also have regard in these circumstances to the more general public interest in insisting on procedural rigour in immigration appeals and on the Practice Direction and specific directions being followed. Finally we have regard to the fact that there is already a mechanism provided within the Immigration Rules for changes in circumstances to be considered by way of further representations (see paragraph 353 of the Rules).
64. For all these reasons we proceed to remake the decision concerning the appellant’s appeal by reference to the Judge’s findings of fact and the agreed fact that the appellant has dual British and Bulgarian nationality.
Remaking the decision
65. The issue the judge erroneously failed to deal with was the question whether the “go scenario” in respect of B, whereby B goes to Bulgaria with the appellant and A, would be unduly harsh on B. In our view the findings of fact the Judge did make and which we have preserved allow for only one conclusion to that question; the effect of the appellant’s deportation would not be unduly harsh on B if he goes to Bulgaria with the appellant.
66. B is five years old and as the Judge found ,at his young age B’s main focus will be on his parents. That is illustrated by the Judge’s conclusion, relying on the evidence of the independent social worker that separation from the appellant would have an unduly harsh impact on B. In the real world situation of the “go scenario” B would continue to be with his two primary carers with whom he has formed his closest attachments. On the preserved findings of the Judge, the appellant and A would be able to continue their family life together in Bulgaria where the appellant would be able to work and support his family. B would be going to Bulgaria therefore as part of a family unit with his closest relationships maintained. Whilst leaving the United Kingdom would mean leaving his paternal grandparents and uncle, going to Bulgaria will simultaneously mean being reunited with his maternal grandparents and uncle. B’s wider relationships will therefore be affected but not necessarily adversely.
67. It is significant that B is a Bulgarian citizen as well as a British citizen and so he would be able to enjoy all the benefits and privileges of citizenship in that country were he to go there. It is also significant that Bulgaria is a country in the European Union and as such has many cultural similarities to the United Kingdom where B has spent his first five years. In the future, B would retain the ability to return to the United Kingdom as a British citizen should he wish to, whilst as a Bulgarian citizen he would have the right of free movement across the European Union.
68. In all the circumstances therefore the go scenario would not be unduly harsh on B. We do however acknowledge that it may be contrary to his best interests, because it will involve him moving away from the only home he has known. In our view however this is marginal because of the support that the family will get in Bulgaria and the opportunity moving to Bulgaria provides for B to re-establish ties with members of his mother’s family.
69. In view of those findings, it follows that we find the appellant does not meet the requirements of Exception 2 to deportation contained in section 117C of the 2002 Act. With that in mind we undertake the overarching proportionality exercise required to determine the appellant’s appeal, considering whether there are very compelling circumstances over and above the Exceptions that outweigh the public interest in the appellant’s deportation.
Factors in favour of deportation
70. Applying section 117C(1) and (2) it is apparent that there is a very strong public interest in the appellant’s deportation as a foreign offender who has committed a serious criminal offence. The sentencing Judge remarked on the appellant’s “more extensive history” of the commercial supply of class A drugs, the high purity cocaine and high volume of MDMA tablets which were found at his home address along with the paraphernalia associated with trading those drugs. The sentencing Judge categorised the appellant’s role in the supply of drugs as significant and in those circumstances taking account of the weapons the appellant had in possession, the Judge assessed the seriousness of his offending as warranting a sentence of five years and six months imprisonment before reducing that sentence to reflect his guilty plea. On any view therefore this was very serious offending resulting in substantial public interest in deportation.
Factors against Deportation
71. Whilst he has not been in the country for more than half his life, the appellant has been living in the United Kingdom for more than a decade and during that time has established a private life of depth, having been working and paying taxes for most of that time. His stay in the United Kingdom has been lawful and with the intention of permanence, indeed he had acquired a right of permanent residence. He is, socially and culturally integrated in the United Kingdom and so deportation will therefore involve an interference with the appellant’s private life.
72. The appellant has demonstrated genuine remorse for his offending and engaged in programmes to address his offending behaviour. He has also gained skills that will enable him to find employment in the future and he is currently working, thereby reducing the risk of re-offending. He has not committed further offences during the relatively short period of time following his release and is assessed as a low risk of causing serious harm and low risk of recidivism.
73. Deportation will involve an interference with the appellant’s family life even though that family life could continue in Bulgaria. The “go scenario” whilst not being unduly harsh on either A or B will involve disruption for them at a time when A is suffering from anxiety and depression. B will be moving to a country with which he will be familiar but where he has not lived before.
Conclusion
74. Weighing the competing factors it is clear in our view that the public interest in deportation outweighs the appellant’s private and family life interests. The public interest is substantial because of the seriousness of the offences the appellant committed. While deportation would involve the appellant, A and B leaving the United Kingdom which is where B was born and always lived, family life will be able to continue in Bulgaria where the family will have the support of extended family and where they will be well-placed to reintegrate. B will continue to enjoy the relationship he has with his primary carers who, given his age remain his main focus. In all the circumstances there are not the very compelling circumstances over and above the two statutory exceptions to deportation that would be required to outweigh the considerable public interest in deportation.
75. In these circumstances, where we are dismissing the appellant’s human rights appeal, the respondent’s decision refusing the appellant’s EUSS application on the grounds of suitability is correct. The suitability requirements of the EUSS provide that an application will be refused where the applicant is subject to a deportation order. The appellant is subject to a deportation order. Therefore the decision to refuse his application was consistent with the EUSS.
Notice of Decision
The decision of the First-tier Judge contained an error of law and is set aside.
We remake the decision and dismiss the appellant’s human rights appeal.
We remake the decision and dismiss the appellant's EUSS appeal.

Luke Bulpitt

Judge of the Upper Tribunal
Immigration and Asylum Chamber

27 May 2025