Tribunal decisions

The decision

IN THE UPPER TRIBUNAL
IMMIGRATION AND ASYLUM CHAMBER
Case No: UI-2025-000387; UI-2025-000388

First-tier Tribunal No: DA/00079/2024
EA/01154/2024

THE IMMIGRATION ACTS

Decision & Reasons Issued:
On 19 August 2025

Before

UPPER TRIBUNAL JUDGE HANSON
DEPUTY UPPER TRIBUNAL JUDGE BUTLER

Between

SECRETARY OF STATE FOR THE HOME DEPARTMENT
Appellant
and

URSZULA BOZENA KAREME
(NO ANONYMITY APPLICATION MADE)
Respondent

Representation:
For the Appellant: Mr. E. Abedian, Counsel instructed by the Aire Centre
For the Respondent: Mr. Howarth, Counsel, instructed by the Government Legal Department.

Heard at Manchester Civil Justice Centre on 28 July 2025

DECISION AND REASONS
Introduction
1. This is the decision of the Tribunal, to which we have both contributed.
2. This is the Secretary of State’s appeal against the decision of a judge of the First-tier Tribunal (‘the Judge’) promulgated on 11 December 2024, in which he allowed the Respondent’s appeal against deportation (‘the Decision’). Permission was granted on a single issue, namely whether the Judge materially erred in law by failing to consider and apply the principle set out in R v Pierre Bouchereau [1977] EUECJ R-30/77, [1978] 2 WLR 251 when determining whether serious grounds of public policy justified the Respondent’s deportation under the Immigration (European Economic Area) Regulations 2016 (‘the 2016 Regulations’).
3. For the reasons set out below, we have determined that:
a. This appeal was brought in time.
b. The Appellant did not raise Bouchereau in the Tribunal below and it was not a matter in issue between the parties, nor one with which the Judge was required to engage when allowing the appeal.
c. In any event, the facts of this case do not reach the high threshold of Bouchereau and, if required to remake the decision, we would dismiss the Secretary of State’s appeal on this basis even if we were to find an error.
Factual and procedural background
4. The Respondent is a Polish national. She was born on 5 August 1978. Her evidence, which was accepted by the Judge, is not in dispute before us.
5. Between 21 March 2020 and 25 June 2020 she engaged in a conspiracy to supply Class A and B drugs (heroin, cocaine, and cannabis), for which she was convicted on 7 December 2021. On 20 December 2023 she was sentenced to nine years’ imprisonment.
6. On 1 May 20241 the Appellant issued a Stage 1 deportation decision to the Respondent. The Respondent made representations in response, which were refused on 17 July 2024 by the Appellant, who made a deportation order. In the deportation order the Appellant concluded that the Respondent’s deportation was justified under reg. 27(5) of the 2016 Regulations.
7. At the hearing before us, the parties agreed that the Bouchereau principle was raised by the Respondent’s representatives in the First Tier. Their submission in the First Tier was that it was for the Appellant to demonstrate that the exception applies and that the Respondent’s offending was not sufficiently serious as to place her within the Bouchereau exception. It was also accepted that the Appellant had not raised Bouchereau at any stage, either in the deportation decision or in the course of the appeal.
8. The Respondent appealed against the deportation order, giving rise to the present proceedings.
9. In October 2024 the Respondent was granted immigration bail.
10. On 11 December 2024 the Judge issued the Determination, allowing the appeal. The Judge’s analysis was lengthy and, in summary, he found that:
a. He found that the Respondent had lived in the UK for 18 years and four months as at the date of the deportation decision.
b. While the Respondent had forged integrative links in the UK before her offending, they were broken by her offending and imprisonment. She therefore could not rely upon the ‘imperative grounds’ category to resist her deportation.
c. There were not ‘serious’ grounds for the Respondent’s deportation. While her offending was of an extremely serious nature, the Judge accepted that the offending was largely out of character she had taken steps to address her trauma. The OASYs report prepared regarding the Respondent showed her to pose a very low risk of reoffending – either 0.03% or 0.06%.
11. On 27 January 2025 another judge of the First-tier Tribunal granted the Appellant permission to appeal on the sole ground that the Judge failed to consider and apply the Bouchereau exception.
12. At the hearing before us, the Appellant was represented by Mr Howarth and the Respondent by Mr Abedian. We thank them both for their helpful and focused oral and written submissions.
Preliminary issue: timeliness
13. The Determination was promulgated on 11 December 2024. Normally, pursuant to r. 12(1) of the Tribunal Procedure (Upper Tribunal) Rules 2008, the deadline for permission to appeal would have expired by 5pm on 25 December 2025. However, as that is of course a public holiday (as is 26 December 2025) and as r. 12(3A)(a) does not treat 27 – 31 December as ‘working days’, the next working day (upon which the deadline to appeal fell) was accordingly 1 January 2025. However, that was a public holiday and so the deadline to submit an application for permission to appeal was 2 January 2025, when the application was in fact filed. The application was accordingly in time.
Error of law
Was the Judge required to consider Bouchereau?
14. The first question which arises is whether the Judge was required to address Bouchereau. If it was not a matter in issue before him, or otherwise a matter which he was required to address of his own initiative, the Appellant cannot show a material error of law. The Judge’s decision at §§8-10 reflects the parties’ agreement as to the matters in dispute. At §10(c) one of those issues was “whether the threshold of serious grounds of public policy and public security has been met”. The Judge does not list Bouchereau as one of the issues which the parties agreed he had to address.
15. In VV (Grounds of appeal) Lithuania [2016] UKUT 53 (IAC) this Tribunal gave guidance on the correct formulation of grounds of appeal. Having reviewed the authorities on the point, the Tribunal held at §§23-24 that:
“An allegation that reasons are inadequate cannot normally get off the ground unless the appellant can show firstly that the matter to which the complaint relates was raised in the proceedings before the First Tier Tribunal as a substantial issue between the parties for the judge to determine. If the matter was not a substantial issue, or a “principal important controversial issue”, then generally it cannot fall within the ambit of the duty to give reasons in that case. There is no obligation on a Tribunal to deal with each and every point which has been raised in an appeal process.
But secondly, even if the matter relates to a substantial issue or principal controversial issue, it is essential for an appellant to show either that the judge has simply failed to resolve that dispute, in other words there is a gap in the reasoning on that point, or alternatively, that even though the issue has been dealt with, the reasoning is so unclear that the Tribunal is satisfied that it may well conceal a public law ground of challenge”.
16. We do not find that Bouchereau was a substantial issue, nor came close to being a “principal important controversial issue” between the parties. The Secretary of State accepts that she did not make submissions on the point at any stage. The Respondent’s representatives cannot be accused of having put a point in issue by covering the case comprehensively and going into more detail than strictly required by the Respondent’s position on the case. The Practice Statement No 1 of 2022 emphasises the need for the parties in the First-tier Tribunal to identify the issues in dispute; this has been described by the Tribunal in TC (PS compliance - “issues-based” reasoning) Zimbabwe [2023] UKUT 164 (IAC) as being “consistent with one of the main objectives of reform and a modern application of the overriding objective […] it ensures that there is an efficient and effective hearing, proportionate to the real issues in dispute”.
17. The Appellant’s ambitious submission in her skeleton argument for this Tribunal was that “Bouchereau is not merely an alternative argument but an essential component of the legal test that must be considered in all middle-tier deportation cases involving serious criminality”. It would place first-instance judges in an impossible position if they were required to identify and address all issues which could potentially arise in an appeal despite their not being raised as an agreed issue by the parties. The Appellant was given every opportunity to raise Bouchereau as an issue in the First-tier Tribunal but did not do so. It was not a substantial issue at first instance and the Judge was not required to address it in his decision.
18. We do not consider that Regulation 27 as a whole or Regulation 27(5)(c) in particular necessitates a consideration of Bouchereau in all ‘middle-tier’ cases. Bouchereau is a distinct exception to the normal principles under the 2016 Regulations and Council Directive 2004/38/EC. It is unlikely to be relevant in most deportation cases. The fact that it may apply in some cases is no reason for its mandatory consideration in all cases.
19. In reaching this conclusion, we have considered with some care the Court of Appeal’s decision in George v SSHD [2024] EWCA Civ 1192. That case concerned a Belgian citizen who had been convicted of manslaughter. Despite having disavowed such an argument before the Upper Tribunal, the Secretary of State sought permission to appeal on the basis that the case fell within the Bouchereau principle. Singh LJ granted the Secretary of State permission on the grounds that, despite this “unimpressive” (§72) procedural history, it was a point of public importance. Elizabeth Laing LJ, giving the lead judgment, concluded at §80 that:
“I do not consider that the UT can be said to have erred in law by failing to consider a point which the Secretary of State had permission to argue in the UT, but which she expressly abandoned in the UT. The UT is not required to consider a point which the Secretary of State has expressly abandoned. The position might be different if the Secretary of State had not expressly abandoned the point (c.f. Shyti v Secretary of State for the Home Department [2023] Imm AR 1563, which concerns points taken in a decision letter and not expressly abandoned before the F-tT). I do not express any view about that. The point of law on which the Secretary of State now relies was not a latent point of law, precisely because it was identified by the Secretary of State and expressly abandoned.”
20. Underhill LJ, concurring as to the result, accepted that the public interest would be served by allowing the point to be taken (§87), albeit at §92 he did not align himself with her reasoning at §80. The Court dismissed the appeal on its merits.
21. We consider that there is no basis – in George or otherwise – for this Tribunal to conclude that judges must necessarily consider Bouchereau when determining a ‘middle-tier’ deportation appeal under the 2016 Regulations. The Court’s reasoning falls far short of establishing such a sweeping proposition. Laing LJ is clear at §75 of George that Bouchereau is not analogous to Robinson No 1 [1998] QB 929, which requires the Tribunal to consider obvious points of Refugee Convention law of its own initiative. It would place an impossible burden on first-instance judges if they had to consider and address Bouchereau in all ‘middle tier’ cases, even where the point was not put in issue by the Appellant. This is particularly clear when we recognise that the Appellant bears the burden of proof in establishing that the exception applies.
22. In reaching this conclusion, we bear in mind the repeated guidance given in cases including Volpi v Volpi [2022] EWCA Civ 462 at §2, Ullah v Secretary of State for the Home Department [2024] EWCA Civ 201 at §26, and Hamilton v Barrow and Others [2024] EWCA Civ 888 at §§30-31, which have emphasised that appeal judges should be cautious about interfering with the decisions of judges below. The Judge’s decision is clear, thorough, and well-reasoned. We consider that he gave adequate reasons to dispose of the matters in issue before him.
23. We therefore conclude that Bouchereau was not a matter in issue before the First-tier Tribunal and that the Judge accordingly made no error in his reasoning as argued by the Appellant.
24. However, in the event that we are wrong on this point and given the suggestion in George that public policy may on occasion warrant consideration of these issues even when not substantively raised, we below address the error of law in the alternative.
Was there a failure to consider and apply Bouchereau amounting to a material error of law?
25. If, contrary to our conclusions above, the Judge was required to consider and apply Bouchereau, we accept that he did not do so expressly. There is no direct reference to Bouchereau in the decision. There is no freestanding consideration of whether the Respondent reaches the high threshold of the Bouchereau exception.
26. Mr Abedian invited us to conclude that the Judge had nevertheless gave sufficient reasons to dispose of this issue in substance albeit without express reference to the principle. He argued that the factors on which the Appellant relies (namely, the seriousness of the Respondent’s offending) were considered by the Judge.
27. In her skeleton argument and oral submissions, albeit not in her grounds of appeal, the Appellant placed great reliance on what she describes as the Respondent’s “cynical exploitation of [a] national emergency” and “fundamental breach of public trust” by impersonating a nurse in order to avoid scrutiny during lockdown. It was argued that these features were so severely aggravating and of such public revulsion that they took the case into the territory of Bouchereau. These features were also relied upon in the deportation decision, which concluded that she “took advantage of the Lockdown in 2020 where many lost their lives due to Covid-19 and you dressed as a key worker when in fact you were going to sell drugs”.
28. We accept that the Judge did give considerable weight to the seriousness of the Respondent’s offending. Amongst other findings, he characterised it as follows:
a. “Drugs offences of considerable seriousness”
b. “Not only the supply of class A drugs, but within the context of serious organised crime groups deploying specialised criminal equipment such as encrypted phones”.
c. She “played an organisation [sic] role in this enterprise and fully appreciated the scale of the operation she was involved in.”
d. “The offending described in conduct of a nature that inherently involves a clear and obvious rejection of societal norms in the UK.”
29. However, the Judge did not consider the additional features upon which the Appellant relies, namely the abuse of public trust and the exploitation of the Covid-19 pandemic which formed part of the Respondent’s offending. While it is unclear whether they featured in the Appellant’s submissions below, they were noted in the sentencing remarks and the deportation decision. If, contrary to our primary finding above, the Judge was required to consider and determine Bouchereau for himself, these were features which should have been considered and reasons were required for the Judge reaching his conclusion notwithstanding these factors.
30. Therefore, in the event that we are wrong in our primary finding and if the Judge was in fact required to consider Bouchereau for himself, we consider that there was an error of law in failing to have regard to these features of the Respondent’s offending.
31. If we had found an error, Mr Abedian invited us to retain the appeal in the Upper Tribunal and remake the decision ourselves. In oral submissions, Mr Howarth adopted what he referred to as a ‘pragmatic approach’, accepting that the remaining issue would be a straightforward point of law and could appropriately be dealt with by the Upper Tribunal as no further fact-finding is required. We agree with those submissions.
32. If required to do so, we would have remade the decision by upholding the outcome reached in the First-tier Tribunal. While very serious, the Respondent’s offending is not of the exceptional type identified in Bouchereau.
33. The law. The Bouchereau case establishes an exception to the usual approach in deportation cases under the 2016 Regulations, whereby – in sufficiently serious circumstances – deportation can be justified on public policy grounds solely on the basis of past conduct. This is an exception to the norm, whereby usually previous criminal convictions of themselves are not taken to constitute grounds for taking deportation action.
34. Conversely in Bouchereau the CJEU held that, while usually a criminal conviction could only be taken into account “in so far as the circumstances which gave rise to the conviction are evidence of personal conduct constituting a present threat to the requirements of public policy […] it is possible that past conduct alone may constitute such a threat to the requirements of public policy” (§§27-28). Given the fact that the Respondent was convicted of a drugs offence, it is relevant to note that Mr Bouchereau was convicted twice for possessing illegal drugs. However, the CJEU’s ruling did not conclude that Mr Bouchereau did or would inevitably fall within such an exception. The CJEU’s decision is given at a high level and does not consider the facts of Mr Bouchereau’s individual case.
35. In R v SSHD, Ex p Marchon [1993] 2 CMLR 132 the Court of Appeal applied Bouchereau to the case of a doctor who had been convicted of conspiracy to import 4.5kg of heroin and was sentenced to 14 years’ imprisonment which was reduced to 11 on appeal. The Court of Appeal described the offence as “especially horrifying” and “repugnant to the public” because it had been committed by a doctor.
36. In Straszewski v SSHD [2016] 1 WLR 1173 Moore-Bick J explained that the Bouchereau exception was limited to “all but the most exceptional cases […] the most heinous of crimes” (§17). In that case, where Mr Straszewski had both attacked a man with broken glass causing serious injuries and then, whilst on bail, burgled a flat and punched and kicked the women who lived there. Notwithstanding the horrific nature of those offences, the Secretary of State’s appeal (and her arguments about the application of the Bouchereau exception) were rejected.
37. In Robinson (Jamaica) v SSHD [2018] 4 WLR 81 Singh LJ, giving the lead judgment, explained that “deep public revulsion” was a helpful guide to the kind of “extreme case in which past conduct alone may suffice as constituting a present threat to the requirements of public policy” (§71). He explained that an extreme case might be evidenced by past conduct “which has caused deep public revulsion”, cases with “extreme facts”, and gave examples of “grave offences of sexual abuse or violence against young children” (§§84-86).
38. Analysis. We have not been invited to and see no need to disturb the findings made by the Judge below. We have cited above some of his findings about the seriousness of the Respondent’s offending and we endorse those conclusions. To the Judge’s findings must be added the serious and aggravating role of the Respondent dressing as a nurse – a key worker – during the pandemic in order to evade arrest. Mr Howarth reminded the Tribunal of the sense of national pride and support for key workers at the time and the particular status accorded to nurses, for whom the public clapped nightly, and many of whom tragically died in seeking to fight the pandemic. Furthermore, the pandemic involved widespread loss of life and we accept the submission that the Respondent may have been yet more likely to avoid scrutiny as anyone minded to question her as to her whereabouts may have been prevented from doing so by fear of transmission of the virus. We accept that this was a cynical and wholly unacceptable exploitation of the public’s goodwill at a time when the overriding national interest was in a community-minded effort to protect the vulnerable and save lives. We also accept that the use of ‘Enchrochat’ phones was an aggravating feature, as described by the sentencing judge.
39. While giving full weight to the points made by Mr Howarth about the seriously aggravating features of the Respondent’s offending, we do not accept that these are sufficient to bring the case within the Bouchereau exception.
40. This case does not involve violence of any kind. It does not involve sexual offending. It does not involve children. It does not involve exploitation. It does not involve abuse. It does not involve terrorism. These offences will generally be of the type which cause such widespread, serious, and lasting harm that they attract the heaviest criminal sanctions. Bouchereau is an exception to the usual principles of EU free movement law based on public policy and, as such, must be construed restrictively: see, for example Van Duyn v Home Office (Case C-41/71) [1975] Ch 358 and Bonsignore v Oberstadtdirektor der Stadt Köln (Case C-67/74) [1975] ECR 297, cited in Staszewski at §13.
41. We appreciate that Ex p Marchon arguably comes close to the facts of the present case. However, it is important to note that Moore-Bick LJ commented in Staszewski at §19 that “I can see some force in Mr Drabble’s submission that the decision in Ex p Marchon can no longer be regarded as representing Community law.” We agree with that analysis and furthermore consider that the clear thrust of subsequent caselaw on Bouchereau has been an emphasis on the high and exceptional standard which it sets. We consider that Marchon is inconsistent with current law and prefer the more recent guidance of the Court of Appeal as accurately stating the current legal position. In any event, we consider that Marchon should not be extended to a less serious case, involving someone who received a lesser sentence and who did not hold a position of public trust (albeit we accept and place weight on the fact that she impersonated such a person at a time of national emergency).
42. We acknowledge that the Respondent’s offending arose in the almost unprecedented context of an international pandemic and the wholly unprecedented context of a national lockdown. This feature and the fact of the Respondent’s impersonation of a key worker at such a time are highly unusual (and seriously aggravating) features. It is important, however, not to conflate exceptionality of occurrence with exceptionality of gravity. Even taking the Respondent’s offending at its highest, we do not consider, in the alternative, that it is at a level such as that identified by the recent decisions considering Bouchereau.
Conclusion
43. For the reasons given above, our findings are:
a. This appeal is in time.
b. There was no error of law in the Judge’s decision as he was not required to give reasons for concluding that the Bouchereau exception did not apply.
c. In the alternative, the Judge did err in failing to consider material parts of the Respondent’s offending as part of the Bouchereau analysis. However, we would remake the decision allowing the Respondent’s underlying appeal as her offending is not of such a level as to fall within the Bouchereau exception.
44. In those circumstances, we dismiss the Appellant’s appeal.

Notice of Decision
The appeal is dismissed.

M. Butler

Deputy Judge of the Upper Tribunal
Immigration and Asylum Chamber

29 July 2025