Tribunal decisions

The decision

IN THE UPPER TRIBUNAL
IMMIGRATION AND ASYLUM CHAMBER
Case No: UI-2025-000137

First-tier Tribunal No: EA/00752/2024
HU/56714/2022

THE IMMIGRATION ACTS

Decision & Reasons Issued:

21st May 2025

Before

DEPUTY UPPER TRIBUNAL JUDGE WILLIAMS

Between

JACEK JASINSKI
(NO ANONYMITY ORDER MADE)
Appellant
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: Mr M Karnik of Counsel, instructed by Turpin Miller
For the Respondent: Mr E Terrell, Senior Home Office Presenting Officer

Heard at Field House on 31 March 2025

DECISION AND REASONS
Introduction
1. The Appellant appeals with the permission of First-tier Tribunal Judge Farmer against the decision of First-tier Tribunal Judge Taylor (“the Judge”).
2. By a decision promulgated on 28th October 2024, the Judge dismissed the Appellant’s appeal against the refusal of his human rights claim following a Deportation Order being made against him pursuant to section 32(5) of the UK Borders Act 2007.

Background
3. The Appellant is a national of Poland who initially arrived in the United Kingdom in May 2006. The Appellant returned to Poland in 2012 to serve a custodial sentence for burglary. Following his release from prison and a period of homelessness, he returned to the United Kingdom in September 2017. On 4th May 2018, a referral was made to the Respondent’s Criminal Casework Directorate, who decided not to pursue deportation action against the Appellant following his convictions in Poland.
4. On 21st June 2021, the Appellant made an application under Appendix EU of the Immigration Rules. On 6th July 2021, he was convicted at Leicester and Rutland Magistrates’ Court of two counts of attempted burglary of a dwelling with intent to steal, three counts of non-dwelling burglary and theft, two counts of making false representation to make gain for self/another, and a count of possession of a controlled drug, i.e. Cannabis.
5. The Appellant was sentenced to 20 months’ imprisonment at Leicester Crown Court on 27th July 2021. On 28th August 2021, the Respondent notified the Appellant of his liability to deportation pursuant to Immigration (European Economic Area) Regulations 2016 (“the EEA Regulations 2016”). In response, the Appellant made representations on 1st October and 20th December 2021, and 13th May 2022. The Appellant’s human rights claim was refused on 13th September 2022, and a Deportation Order made on the same day.
The First-tier Tribunal Hearing
6. The appeal came before the Judge sitting at Nottingham Justice Centre on 14th October 2024. The Appellant was represented by Mr Karnik of Counsel, and the Respondent by a Presenting Officer. The Judge determined two preliminary issues, the first being an application for the Appellant to be treated as vulnerable, which was granted.
7. The second issue was an application made by the Appellant for permission to rely on a decision of the Upper Tribunal which was at the time, unreported. The decision was subsequently reported as Vargova (EU national: post 31 December 2020 offending: deportation) [2024] UKUT 00336. This application was also granted.
8. The Judge heard evidence from the Appellant and his mother and heard submissions from both representatives. In her reserved decision promulgated on 28th October 2024, the Judge dismissed the Appellant’s appeal.
9. The Judge’s decision carefully considered a sequence of questions which had been outlined in a Case Management Hearing. The Judge made the following salient findings:
i. [21] Whilst there was reference to conduct prior to 31st December 2020, none of this conduct was relied on by the Respondent in making the Deportation Order.
ii. [28] The Appellant was not exercising Treaty rights at 31st December 2020, having ceased employment in October 2020. The Appellant was therefore not residing in accordance with Union law and could not come within the scope of Article 10 of the Withdrawal Agreement.
iii. [34] Even if the Appellant came within the scope of Article 10, Vargova made clear that he could not rely on the substantive safeguards provided in Articles 20 and 21. This was because his offending took place after 31st December 2020. The procedural safeguards had been effective.
iv. [37] It was not accepted that the test in s117C of the Nationality, Immigration and Asylum Act 2002 ought to be modified in light of the Withdrawal Agreement.
The Appeal to the Upper Tribunal
10. The Appellant sought permission to appeal on five grounds. Those grounds can be summarised thus:
i. The Judge was wrong to find that the Appellant was required to be exercising Treaty rights ‘immediately’ before 31st December 2020. In the alternative, the Judge was wrong in her finding that the Appellant was not a ‘worker’, as his status as such will have been retained.
ii. The Judge was wrong to find that the Respondent had not relied on pre-transition conduct in making the Deportation Order.
iii. Vargova was wrongly decided, and accordingly the Judge erred in the assessment of proportionality under Article 20(2).
iv. The Judge’s assessment of Article 8 ECHR was flawed as it did not take into assessment any rights afforded to the Appellant by the Withdrawal Agreement.
v. The Judge’s assessment of the Appellant’s circumstances under s117C(6) was inadequately reasoned or irrational.
11. Permission was granted by First-tier Tribunal Judge Farmer on 10th January 2025. Whilst the reasons purported to refuse permission on ground 3, the decision itself did not limit the grant of permission, and following Safi and others (permission to appeal decisions) [2018] UKUT 00388, permission was granted on all five grounds.
12. The hearing before me was conducted via Cloud Video Platform. The Appellant, Mr Karnik and Mr Terrell appeared remotely and I was at Field House. A law student was also observing the hearing remotely. I was provided with a composite bundle of 185 pages, as well as a skeleton argument from each of the advocates and a bundle containing the ‘pleadings before the FtT’. Following the hearing, I invited further written submissions from each of the advocates which I am grateful to have received.

The Appellant’s Submissions
13. In relation to Ground Two, Mr Karnik submitted the Judge has misunderstood the law about the Appellant’s rights under the Withdrawal Agreement. He referred to this as the ‘Scope Question’. In her skeleton argument, the Respondent placed reliance on Ali, R (On the Application Of) v Secretary of State for the Home Department [2023] EWHC 1615 (Admin). Ali was considering an entirely different factual scenario, and in any event, the principles in Ali assist the Appellant as they advocate against a narrow interpretation, and for one which secures the effectiveness of rights.
14. The Judge incorrectly focused on whether the Appellant was exercising Treaty rights ‘immediately’ before transition and should instead have asked whether or not he was a ‘worker’, the evidence showing that he was. The Appellant had worked until 5th October 2020 and retained his status as a worker under Regulation 6 of the EEA Regulations 2016. The Appellant was further permitted a right of residence which did not require economic activity.
15. The Judge was incorrect to incorporate the term ‘immediately’ into her decision as it does not appear in Article 10(1). Those drafting the Withdrawal Agreement had opted to use the word ‘immediately’ in other places but not here. Its inclusion would not make sense if a person had to have been exercising Treaty rights on the 31st December 2020 itself. There were a number of people afforded Withdrawal Agreement rights prior to the 31st December 2020.
16. In relation to Ground Two, the Respondent had clearly relied upon conduct prior to the 31st December 2020 in reaching her decision, as it was referred to in the decision letter. In these circumstances, the decision fell within Article 21, and the conduct had to be considered in relation to the Withdrawal Agreement.
17. As far as Ground Three was concerned, the Judge had taken the wrong approach in relation to safeguards. Article 21 of the Withdrawal Agreement sets out the safeguards a person is entitled to are those in Article 15 of the Directive. Vargova was wrongly decided. The Respondent was only entitled to expel a person on the grounds of abuse or fraud, and in this case neither of those two factors was present and the approach of the Respondent was unlawful. It followed that the Judge’s decision was also erroneous in this respect.
18. Ground Four entailed a submission to the effect that the status of an individual under the Withdrawal Agreement was wholly new, and something which had not previously existed in the United Kingdom. A person with rights under the Withdrawal Agreement has more rights that a person with Indefinite Leave to Remain or even a British Citizen, e.g. those individuals have to satisfy the requirements of the Immigration Rules in bringing family members to the United Kingdom whereas those requirements do not apply to those afforded status under the Withdrawal Agreement. There is therefore a different approach when evaluating the proportionality of any decision and the Judge failed to recognise this.
19. Ground Five was essentially a reasons challenge, with reliance placed on the grounds seeking permission. The Judge had failed to adequately reason her findings that the Appellant could live in Poland when his last residence there was a period of street homelessness, and the Judge had further failed to give reasons for her finding that the Appellant would be supported by his mother when her circumstances (i.e. she is a pensioner) were considered.
The Respondent’s Submissions
20. Mr Terrell responded to each of the submissions in turn. As far as Ground One was concerned, the provisions of the Withdrawal Agreement were never intended to confer rights on people who were not in the United Kingdom lawfully. If it was correct that all which was required was residence, a person could enter the United Kingdom unlawfully and yet be deemed within the scope of the Withdrawal Agreement. It was necessary for a person to be exercising Treaty rights on 31st December 2020. The reality was there were always ‘hard edges’ within European Union law. A person who had resided in the United Kingdom for four years and 10 months would not be entitled to permanent residence, for example.
21. The Appellant in any event was not a worker. The evidence before the Judge showed the Appellant’s employment ended in October 2020 and he did not re-enter the labour market until February 2021. There was no evidence the Appellant was a jobseeker or that he came within any of the other categories of Regulation 6 of the EEA Regulations 2016.
22. Ground Two was opposed on two bases; if I were to find against the Appellant on Ground One, the Appellant would not be within the scope of the Withdrawal Agreement and the protections afforded by it would therefore not apply. That point notwithstanding, the Judge’s treatment of the Appellant’s offending pre-31st December 2020 was only for to consider the risk of reoffending. It did not feature in her analysis of the public interest at §§47-51. The totality of the Appellant’s offending needed to be considered in the proportionality exercise conducted under Article 8 ECHR.
23. Ground Three was opposed on the basis that Vargova remains good law, and as such the Judge did not err in her application thereof. If the Appellant’s argument were correct, the Respondent would be in difficulty deporting anybody in line with Article 22. The response to Ground Four was that if the Appellant did have rights under the Withdrawal Agreement, his status has in any event been precarious. The Appellant would only enjoy a right under the Withdrawal Agreement if he applied for it. Ground Five was submitted to be little more than disagreement in circumstances where the Judge had provided reasons which were open to her on the evidence.
Analysis and Findings
24. In his skeleton argument, Mr Terrell helpfully set out the relevant provisions applicable to this appeal. I will not replicate those provisions here except where necessary. The parties agreed that to a large extent, Grounds Two to Four were parasitic upon whether or not the Judge erred in her assessment of whether or not the Appellant was a worker and thus within the scope of the Withdrawal Agreement. If the Appellant could not benefit from the provisions of the Withdrawal Agreement, any error on the part of the Judge pertaining to Grounds Two to Four could not be said to be material.
Ground One
25. The first question to determine is whether the Judge was incorrect in her finding that the Appellant was not a worker. It is common ground between the parties that the Appellant was employed until 5th October 2020. This date is taken from the Appellant’s employment history as provided by HM Revenue and Customs [p.38]. The next period of employment started on 5th March 2021. The Appellant’s oral evidence was that he did not receive any income in the intervening period. For an individual who had stopped employment, there were conditions which, if fulfilled, would enable them to retain their status as a worker.
26. Those conditions, outlined in Article 7 of Directive 2004/38/EC are as follows:
a. He is temporarily unable to work as the result of an illness or accident;
b. He is in duly recorded involuntary unemployment after having been employed for more than one year and has registered as a jobseeker with the relevant employment office;
c. He is in duly recorded involuntary unemployment after completing a fixed-term employment contract of less than a year or after having become involuntarily unemployed during the first twelve months and has registered as a jobseeker with the relevant employment office. In this case, the status of worker shall be retained for no less than six months
d. He embarks on vocational training. Unless he is involuntarily unemployed, the retention of the status of worker shall require the training to be related to the previous employment.
27. There was no evidence before the Judge that the Appellant satisfied any of these conditions having left employment in October 2020. She explicitly referred to the lack of evidence that the Appellant ‘was seeking employment’ [25]. This finding was not challenged before me. It was not asserted that the Appellant had registered with the Department for Work and Pensions for example, or that his cessation of employment in October 2020 was the result of illness or an accident. The Judge was therefore correct in her finding that the Appellant was not a worker, and had not retained his status as a worker at 31st December 2020.
28. Mr Karnik submitted that the Appellant was in any event, irrespective of his economic activity, was entitled to an unconditional right to reside for three months, pursuant to Article 6 of the TFEU. That unconditional right of residence, according Regulation 13(1) of the EEA Regulations 2016, commenced at the date of the Appellant’s admission to the United Kingdom, and so had passed by the time his employment ended.
29. The next question then, is whether the Judge was incorrect to conclude the Appellant was required to be exercising Treaty rights immediately before 31st December 2020. Article 10 states the Withdrawal Agreement applies to ‘Union citizens who exercised their right to reside in the UK in accordance with Union law before the end of the transition period and continue to reside there thereafter’. The Judge noted her disagreement [29] with the submission made that there is no requirement for a person to be exercising Treaty rights or otherwise residing in the United Kingdom lawfully immediately before 31st December 2020.
30. The wording of Article 10 does not import this requirement, as observed by Mr Karnik before me. There are a number of factors which do however, indicate that the Judge was right to find there was a requirement for the Appellant to have been exercising Treaty rights ‘immediately’ before 31st December 2020. First, following the submission made by Mr Karnik that any lawful residence prior to the 31st December 2020 would suffice to bring a person within the scope of the Withdrawal Agreement, there would in reality be no difference between a person who had not exercised Treaty rights for years before transition, and someone who was doing so on 31st December 2020. I accept the submission made by Mr Terrell that there are ‘hard edges’ in European Union law, and that whilst there has been a degree of flexibility, exceptions are clearly defined. In the absence of a definition of how long before the end of the transition period a person was required to be lawfully resident, I find that ‘immediately’ before that is the appropriate requirement.
31. Further, Mr Terrell submits there are references within the Withdrawal Agreement itself and also within the guidance note on its interpretation, which indicate the position is to be considered on 31st December 2020. First, the Withdrawal Agreement itself at Article 6.1 clarifies that ‘all references in this Agreement to Union law shall be understood as references to Union law, including as amended or replaced, as applicable on the last day of the transition period’. Second, the guidance note1 at 1.1.3.2 states, when referring to the definition of ‘before the end of the transition period and continue to reside there thereafter’, states:
These notions, that should be read together, incorporate a time stamp that requires that residence in accordance with Union law qualifies for the purposes of Part Two of the Agreement only when such residence is ‘continuous’ at the end of the transition period (31 December 2020).
32. It is clear that the references to ‘before’ the end of the transition period refer to the position as at the 31st December 2020. This issue is also confirmed in the decision of Abdullah & Ors (EEA; deportation appeals; procedure) [2024] UKUT 00066 (IAC), where the Tribunal stated at [68]:
… But, we do not accept that this interpretation or the Secretary of State’s practice and guidance means that those who do not come within the scope of article 10 are, if they make an application, brought within scope of the WA. To do so would be to ignore the purpose of the procedure as set out in article 1(a) which is to verify an entitlement to the residence rights set out in Title II which, as we have seen, is limited to those who had residence rights immediately before 31 December 2020.
33. Pulling these threads together, I do not find the Appellant has shown that the Judge erred in her finding that the Appellant was not a worker. As a result, grounds two to four are academic. As I do not find the Appellant was within the scope of the Withdrawal Agreement, these other submissions fall away as agreed by the representatives.
Ground Two
34. I will address the second ground in brief. It is submitted that the Judge erred in her finding that the only conduct relied on by the Respondent in pursuing deportation took place following 31st December 2020. There is no merit in this ground. The Respondent’s decision makes clear that although the Appellant’s convictions in Poland were known to her, on 23rd May 2018 a decision was taken not to pursue deportation on the grounds of these convictions.
35. Whilst there are references to other convictions, these are mentioned in the context of the Appellant’s risk of reoffending. Nowhere in the decision of the Respondent, or in the decision of the Judge, are any convictions prior to 31st December 2020 relied on as the reason for the deportation action. The OASys report before the Judge gives the dates of the Appellant’s offending as between 15th January 2021 and 19th January 2021 [p.60].
36. The Judge clearly understood the distinction the Respondent drew between the offending which gave rise to the deportation decision (all of which took place in 2021), and the pre-2021 convictions which were simply referred to in the context of the Appellant’s human rights claim, and not in the context of the decision to deport. This is referred to clearly at [20] of the decision. I therefore find there is no error in this respect.
Grounds Three and Four
37. Ground Three advanced by the Appellant is that Vargova was incorrectly decided. Following the hearing but before the promulgation of this decision, on 15th April 2025, Lewis LJ granted permission to appeal to the Court of Appeal to the Appellant in Vargova. I have given thought as to whether, as a result of the grant of permission, this appeal ought to be stayed. I see no merit in doing so because of my finding that the Appellant does not come within the scope of the Withdrawal Agreement. Ground Four, pertaining to the proportionality assessment the Judge ought to have conducted is immaterial having found the Appellant does not come within the scope of the Withdrawal Agreement.
Ground Five
38. The final ground of challenge is that the Judge failed to adequately reason her finding that there would not be very compelling circumstances sufficient to outweigh the public interest in the Appellant’s deportation. The Judge starts her assessment by acknowledging that the offences the Appellant committed were ‘less serious’ [51]. The Judge does however consider the public interest is not ‘diluted’ by evidence of rehabilitation. This finding was entirely open to the Judge in circumstances where the Appellant had reoffended since the index offence, and where his previous offending was motivated by addiction whereas he was subsequently offending despite being in recovery and taking methadone.
39. As far as his deportation to Poland was concerned, the Judge at [52] found the Appellant had not made any ‘serious attempts’ to find a home or employment in Poland. She found there would be recovery treatment in Poland, whilst accepting that there would be initial difficulty engaging. She further found there was no documentary evidence supporting the assertions of his family that they could not provide financial support to him upon return and found that emotional support would continue via visits and electronic communication. The Judge also considered the Appellant was ‘highly motivated’ to find employment, and did not see any reason this would not be the case upon return to Poland.
40. Whilst the Judge was clearly aware the Appellant had previously been street homeless in Poland, the Appellant was clearly struggling with alcohol misuse at the time, as disclosed to the author of the OASys report [p.101]. As this is no longer an issue, it was open to the Judge to find that the Appellant could now obtain employment in Poland, especially in the absence of any evidence from him that would not be the case. I therefore do not find this ground is made out.
Notice of Decision
The appeal to the Upper Tribunal is dismissed. The decision of First-tier Tribunal Judge Taylor, dismissing the appeal shall stand.

CJ Williams

Deputy Judge of the Upper Tribunal
Immigration and Asylum Chamber

19th May 2025