Tribunal decisions

The decision

IN THE UPPER TRIBUNAL
IMMIGRATION AND ASYLUM CHAMBER

EUSS Case No: UI-2025-000186
(EA/00627/2024)
HU Case No: UI-2025-000185
(HU/00886/2024)

THE IMMIGRATION ACTS

Decision & Reasons Issued:

01st July 2025

Before

UPPER TRIBUNAL JUDGE CANAVAN
DEPUTY UPPER TRIBUNAL JUDGE S. DAVIES

Between

SECRETARY OF STATE FOR THE HOME DEPARTMENT
Appellant
and

AHMED MOHAMED NAGUIB, AHMED ABDELAZIZ SOLTAN
(NO ANONYMITY ORDER MADE)
Respondent

Representation:
For the Appellant: Ms S. Cunha, Senior Home Office Presenting Officer
For the Respondent: Ms S. Jegarajah, instructed by AMZ Law

Heard at Field House on 25 March 2025

DECISION AND REASONS
1. For the sake of continuity, we will refer to the parties as they were before the First-tier Tribunal although technically the Secretary of State is the appellant in the Upper Tribunal.
2. The procedural history of this case is not entirely clear from the incomplete bundles prepared by the respondent (SSHD) for this hearing.
3. The original appellant (Mr Soltan) was convicted for the offence of blackmail on 07 June 2023 for which he was sentenced to 4 years imprisonment. The respondent issued a Stage 1 notice of decision to deport dated 18 September 2023. The appellant was treated as a ‘foreign criminal’ for the purpose of section 32(1) of the UK Borders Act 2007. His deportation was deemed to be conducive to the public good.
4. Normally a decision of this kind would not attract a right of appeal, but because the appellant was granted settled status under the EU Settlement Scheme on 28 March 2022, the decision attracted a right of appeal under regulation 6 of The Immigration (Citizens’ Rights Appeals) (EU Exit) Regulations 2020 (‘the CRA Regulations 2020’). It is not clear whether the appellant exercised the right of appeal or not. It is said that the appellant made further representations to the respondent on 22 October 2023 and 22 November 2023.
5. It is unclear why a further decision was then issued. It is possible that the respondent realised that the conduct relied upon pre-dated the end of the implementation period on 31 December 2020 and that there needed to be compliance with Article 20(1) of the Withdrawal Agreement.
6. On 25 March 2024 the respondent issued a Stage 1 notice of intention to make a deportation order with reference regulation 27 of The Immigration (European Economic Area) Regulations 2016 (as saved) (‘the EEA Regulations 2016’) (removal decision on public policy grounds).
7. On 03 May 2024 a Stage 2 decision was made to make a deportation order with reference to the EEA Regulations 2016 (as saved) and to refuse a human rights claim. The first element of the decision (EEA removal) attracted a right of appeal under section 6 of the CRA Regulations 2020 with reference to regulation 36 of the EEA Regulations 2016. The second element of the decision (human rights claim) attracted a right of appeal under section 82 of the Nationality, Immigration and Asylum Act 2002 (‘NIAA 2002’). This combined decision is the subject of the appeal before the Upper Tribunal.
8. First-tier Tribunal Judge L. K. Gibbs (‘the judge’) allowed the appeal with reference to the EEA Regulations 2016 (as saved) in a decision sent on 20 November 2024. The judge outlined the relevant legal framework contained in regulation 27 of the EEA Regulations 2016 (as saved) [9]. She noted that it was not disputed that the respondent could only remove the appellant on ‘serious grounds of public policy and public security’.
9. The judge went on to consider the seriousness of the offence by reference to the judge’s sentencing remarks [10]. In assessing whether the appellant posed a genuine, present and sufficiently serious threat affecting one of the fundamental interests of society, the judge also considered the respondent’s argument that he remained a danger to society [11]. The OASys assessment showed that he did not have full insight into the offence and continued to blame the victim. The judge noted that the OASys assessment found the risk of reoffending to be ‘low’ albeit the risk of serious harm was assessed as ‘medium’.
10. The judge had regard to the fact that the offence took place in 2019. She found that it was credible that the appellant had time to consider his actions. This was reflected in notes from the prison, which recorded that the appellant felt remorse for the offence and apologised for his actions, while at the same time still seeming to blame the victim for her part in the events. Nevertheless, it was recorded that he ‘deeply regrets his crime… if he had the chance he would apologise to her personally.’ [13]. The judge also took into account other aspects of the prison records, which indicated positive behaviour while in prison [15].
11. In her conclusions, the judge noted that the offence appeared to be out of character. Having heard evidence from the appellant, she was satisfied that he felt genuine remorse for what occurred. She noted that there was an indefinite restraining order made against the appellant in relation to his victim. In any event, the evidence showed that she had now left the UK. The judge placed weight on the risk of reoffending being categorised as ‘low’, his good behaviour in prison, and the fact that he made good use of his time while he was in prison. She also took into account the fact that the appellant continued to have the support of his wife. The judge concluded that the fact that the appellant wanted to rebuild his family life was likely to act as a ‘significant incentive’ in managing his behaviour going forward [18]. For these reasons, she was not satisfied that the appellant presented a ‘genuine, present and sufficiently serious threat’ for the purpose of regulation 27 of the EEA Regulations 2016 [19].
12. In considering his personal circumstances, the judge found that the appellant had been resident in the UK for many years. He was previously employed and contributed to the economy. His Hungarian wife and daughter were settled in the UK. The appellant’s daughter was only 10 years old and was born in the UK. The judge accepted that the child would find it difficult to relocate to Egypt. For these reasons, the judge also found that removal on grounds of public policy would be disproportionate [20].
13. The judge did not make any findings in relation to the appeal brough under section 82 NIAA 2002 against the decision to refuse a human rights claim. We were told that the appellant did not pursue that element of the appeal before the First-tier Tribunal, finding it sufficient to argue the case with reference to regulation 27 of the EEA Regulations 2016 (as saved).
14. The Secretary of State applied for permission to appeal the First-tier Tribunal decision on the following grounds:
(i) The First-tier Tribunal’s finding that the appellant did not represent a ‘genuine, present and sufficiently serious threat affecting one of the fundamental interests of society’ was inconsistent with the evidence set out in the sentencing judge’s remarks, the OASys report and the respondent’s stage 2 decision (03 May 2024). It was ‘submitted that the decision to deport the appellant given the evidence that he remains a threat in the community is proportionate.’
(ii) The First-tier Tribunal failed to have adequate regard to the provisions contained in Schedule 1(7) of the EEA Regulations 2016 (as saved), including the need to prevent social harm and to protect the public. The judge also failed to consider proportionality adequately: MA (Pakistan) [2014] EWCA Civ 163 referred.
15. We have considered the First-tier Tribunal decision, the evidence before the First-tier Tribunal, the grounds of appeal, and the submissions made at the hearing, before coming to a decision in this appeal. It is not necessary to summarise the oral submissions because they are a matter of record, but we will refer to any relevant arguments in our decision.
16. The Supreme Court in HA (Iraq) v SSHD [2022] UKSC 22 reiterated that judicial caution and restraint is required when considering whether to set aside a decision of a specialist tribunal. In particular, judges of the specialist tribunal are best placed to make factual findings. Appellate courts should not rush to find misdirections simply because they might have reached a different conclusion on the facts or expressed themselves differently: see AH (Sudan) v SSHD [2007] UKHL 49 and KM v SSHD [2021] EWCA Civ 693. Where a relevant point is not expressly mentioned by the tribunal, the court should be slow to infer that it has not been taken into account: see MA (Somalia) v SSHD [2020] UKSC 49. When it comes to the reasons given by the tribunal, the court should exercise judicial restraint and should not assume that the tribunal misdirected itself just because not every step in its reasoning is fully set out: see R (Jones) v FTT (SEC) [2013] UKSC 19. We have kept these considerations in mind when coming to our decision.
Decision and reasons
17. The first ground makes general submissions on the evidence but amounts to nothing more than a disagreement with the outcome. It is clear from [11] of the decision that the judge had regard to the sentencing remarks, the content of the OASys assessment, and the prison records. It is clear from the summary of the evidence contained in the decision that she was well aware of the fact that the appellant continued to blame the victim to some extent in the period leading up to his conviction and while he was in prison.
18. Unlike deportation proceedings under domestic law, the legal test of ‘genuine, present and sufficiently serious threat’ is rooted in an assessment of the present and foreseeable risk. Even if the OASys assessment recorded information which indicated that the appellant did not yet take full responsibility for his actions, it was still open to the judge to place weight on the professional assessment of the report writer, who still assessed the appellant to be a ‘low’ risk of reoffending and a ‘medium’ risk of serious harm.
19. Having heard evidence from the appellant the judge was in the best position to evaluate whether his expression of remorse was likely to be genuine or not. It was open to the judge to find that, after a period of reflection, the appellant’s remorse was genuine. We acknowledge that the OASys assessment was dated 06 October 2023. Some of the evidence relating to a lack of insight was more recent. There was no evidence to suggest that the appellant had accepted any responsibility for his actions before he pleaded guilty in 2023. Nevertheless, it was still open to the judge to assess the appellant as a witness at the date of the hearing on 15 October 2024, a year after the OASys assessment.
20. For the first time at the hearing, Ms Cunha sought to make an argument with reference to the Court of Appeal decision in SSHD v AA (Poland) [2024] EWCA Civ 18 (19 January 2024). She argued that the judge erred by taking into account ‘mitigating measures’. She referred to paragraphs 6-7 of the grounds and 15-19 of the decision letter. The oral argument was not particularised in any more detail than that.
21. The grounds of appeal were settled on 28 November 2024, some 11 months after AA (Poland) was decided, but no argument with reference to the case was expressly pleaded. No application was made to amend the grounds either in writing or at the hearing. Paragraphs 6-7 of the grounds made general submissions about the serious nature of the offence, the appellant’s last minute guilty plea, and the lack of insight recorded in the OASys assessment. Paragraphs 15-19 of the decision letter dated 03 May 2024 summarised the areas of concern from the OASys assessment and the judge’s sentencing remarks.
22. The argument put forward at the hearing was generalised. Beyond asserting that the judge erred in taking into account ‘mitigating measures’, the respondent has failed to particularise how or why AA (Poland) was relevant to the general concerns set out in the grounds and decision letter.
23. The passages of AA (Poland) that were relied upon ([55]-[59]) related to the Court of Appeal’s assessment of the decision on the facts of that particular case. If by ‘mitigating measures’ Ms Cunha was referring to the discussion in AA (Poland) of the principles outlined in Restivo (EEA – prisoner transfer) [2016] UKUT 449 (IAC) that is found elsewhere in the decision.
24. At [18] the Court of Appeal summarised the Upper Tribunal’s decision in Restivo. In that case, the Upper Tribunal found that the First-tier Tribunal erred in finding that the fact that the appellant would remain in prison for another 37 years for an offence of murder had wrongly conflated the assessment of risk with the question of management of the risk. At [55] the Court of Appeal in AA (Poland) said:
’55. … Measures such as imprisonment, licence conditions on release, SHPOs, and notification requirements are all put in place because a person poses a threat to one of the fundamental interests of society. The existence of such measures is relevant because they involve a recognition of that threat and the need to prevent, manage, or mitigate it. But the preventative or mitigating effects that such measures may have are not themselves material to the question of what level of threat exists.’
25. If this is the principle relied on by the respondent, which is not clear, it bears little resemblance to the arguments put forward in the decision letter or the grounds, which refer to (i) the serious nature of the offence; (ii) evidence of lack of insight; and (iii) the late guilty plea. These issues do not relate to measures that might be put in place to mitigate the risk of reoffending of the kind outlined in AA (Poland).
26. Despite the standard directions made by the Upper Tribunal, the way in which the documentary evidence was prepared by the respondent for the hearing did not aid in understanding what evidence was before the First-tier Tribunal. A number of loose documents were provided at the start of the hearing. We have not been referred to any documents relating to licence conditions or any other ‘mitigating measures’ of risk that might have been put in place when the appellant was released from prison. The only reference to a ‘mitigating measure’ of the kind outlined by the Court of Appeal is the judge’s mention of a restraining order being in place in relation to the victim of the offence, who in any event, had now left the country [18]. However, this is not a matter that was identified in the grounds or in submissions at the hearing.
27. For these reasons, we conclude that the argument relating to AA (Poland) was late, vague, and unparticularised. Even if we were to divine the intended meaning of the respondent’s submission, the only ‘mitigating measure’ of the kind outlined by the Court of Appeal is the judge’s brief reference to the restraining order. This matter is not referred to in the grounds or the part of the decision letter relied on. As originally pleaded, the grounds focused on the appellant’s lack of insight and remorse.
28. As such, the argument that the respondent sought to put forward at the hearing did not form part of the original grounds and permission was required. No application was made to amend the grounds. In any event, it is not arguable that the judge’s single reference to the restraining order undermined what was otherwise a holistic assessment of risk taking into account a number of other factors that were open to her to consider. This is especially so in a case where there was an elevated threshold to justify removal of ‘serious grounds of public policy and public security’.
29. At the hearing, no meaningful oral argument was made in relation to the second ground of appeal headed ‘proportionality’. The second ground is confused and unclear. If the judge’s findings relating to the assessment of risk are sustainable, any subsequent error in relation to the proportionality assessment would make no material difference to the outcome.
30. In any event, no explanation is given as to why reference to the broad principles outlined in Schedule 1 of the EEA Regulations 2016 would have made any material difference to the outcome of the appeal given that the Schedule does not dictate any particular outcome. It is not clear what argument is being made with reference to MA (Pakistan), which on its face is a decision relating to deportation decision taken under domestic law. The proportionality assessment in that case was made in the context of a human rights claim under Article 8 of the European Convention, which takes into account broader public interest considerations, and was not a decision made in the context of an EU law proportionality assessment. Nor does the second ground explain how or why the First-tier Tribunal is said to have erred. For these reasons, the second ground fails to disclose an error of law in the First-tier Tribunal decision.
31. For the reasons given above, we conclude that the First-tier Tribunal decision did not involve the making of an error on a point of law.

Notice of Decision
The First-tier Tribunal decision did not involve the making of an error on a point of law
The decision stands

M. Canavan
Judge of the Upper Tribunal
Immigration and Asylum Chamber

26 June 2025