Tribunal decisions

The decision

IN THE UPPER TRIBUNAL
IMMIGRATION AND ASYLUM CHAMBER
Case No: UI-2025-000496

First-tier Tribunal No: HU/00431/2024

THE IMMIGRATION ACTS

Decision & Reasons Issued:
On the 09 April 2025

Before

UPPER TRIBUNAL JUDGE HANSON

Between

JORGE LEANDRO BATALHA CARLOS BRITO
(NO ANONYMITY ORDER MADE)
Appellant
and

SECRETARY OF STATE FOR THE HOME DPEARTMENT
Respondent

Representation:
For the Appellant: Mr Dingley instructed by INJ Law Solicitors.
For the Respondent: Mr McVeety, a Senior Home Office Presenting Officer.

Heard at Phoenix House (Bradford) on 4 April 2025

DECISION AND REASONS

1. The Appellant appeals with permission a decision of a judge of the First-tier Tribunal (‘the Judge’), promulgated on 30 December 2024, in which the Judge dismissed his appeal on human rights grounds, relied upon by the Appellant is an exception to the order for his deportation from the United Kingdom.
2. The Appellant is a citizen of Portugal born on 22 July 1994. On 20 September 2022 the Respondent made a deportation order against him, pursuant to section 32 (5) UK Borders Act 2007, under domestic law.
3. The Judge sets out the background to the appeal in the following terms:

Background

3. The background circumstances can be summarised as follows. The appellant came to the UK as a child. School records establish that he was at primary school in the UK in 2001 when he was around 7 years old. On 9 April 2020 he was granted settled status (indefinite leave to remain) under the EU Settlement Scheme.

4. The appellant has three children. To protect their identities I will refer to them in this determination as C1 (the eldest), C2 and C3 (the youngest).

5. C1 is the daughter of the appellant and his former partner, who I will refer to in this determination as AB. C1 was born in 2013 and is now 11 years old.

6. C2 and C3 are the sons of the appellant and his current partner, who I will refer to as XY. C2 was born in 2015 and is now 9 years old. C3 was born in 2022 and is 2 years old. XY also has an adult daughter LM from a previous relationship. LM has young children of her own.

7. AB, XY and the appellant’s children are all British citizens who have resided for all their lives in the UK. AB and XY have no connection to Portugal.

8. The appellant has the following criminal record:

a) In January 2008 and then again in June 2008 (age 13) the appellant was cautioned for battery.

b) On 24 October 2008 (age 14) he was sentenced by the Youth Court to a referral order for common assault.

c) On 25 January 2009 (age 14) he was sentenced by the Youth Court to a further referral order for battery.

d) On 26 April 2013 (age 18) he was sentenced to 12 months detention in a young offender’s institution for burglary and theft from a dwelling.

e) On 21 July 2017 (age 22) he was sentenced to 3 months imprisonment, suspended for 12 months, for possessing a bladed article in a public place and possessing a class B drug.

f) On 25 November 2021 (age 27) he was sentenced to 54 months (that is 4 years and 6 months) imprisonment for five counts of supplying a class A drug and two counts of being concerned in the supply of a class A drug (all relating to crack cocaine). The offending that led to that sentence took place between 10 May and 15 June 2021.

9. On 19 April 2022 the appellant was served with a notice of a decision to make a deportation order [RB p59-]. That letter notified the appellant that he had a right of appeal against that decision under the Immigration (Citizen’s Rights Appeals) (EU Exit) Regulations 2020 (“the CRA Regulations”). The appellant did not appeal against that decision until 30 May 2024 (a matter I will come back to below). However the appellant did make representations (dated 25 April 2022) setting out reasons why he should not be deported to Portugal. 10.Having considered those representations the respondent issued the decision to deport the appellant and refuse his associated human rights claim on 20 September 2022 [RB p7]. It is that decision which is the subject of this appeal.

4. The Judge’s findings are set out from [24] of the decision under challenge.
5. An issue arose before the Judge in relation to the applicable regime. The Judge at [25] noted that if the provisions of Regulations 27(4) of the Immigration (EEA) Regulations 2016 applied the appeal would have to be allowed as the decision was not sufficient to satisfy the requirements of imperative grounds of public security.
6. The Secretary of State’s case was, however, that these provisions did not apply as the Appellant’s conduct which gave rise to the decision to deport was his conviction for Class A drug dealing in May/June 2021. The basis of the decision was therefore criminal conduct that post-dated 11 PM 31 December 2020. This position was opposed by Mr Holmes on behalf of the Appellant, on the basis the refusal letter referred at length to the Appellant’s pre-2020 convictions, which had been used to justify his deportation on the basis of being an escalation in his criminal conduct.
7. The Judge finds, however, that the Secretary of State’s position is to be preferred as a fair reading of the decision letter shows the decision to deport was based on his conviction and sentencing in 2021 [28]. The Judge therefore finds the decision to deport is not subject to the 2016 Regulations and went on to consider whether the Appellant could satisfy the very compelling circumstances test set out in section 117C(6) of the Nationality, Immigration and Asylum Act 2002 (‘the 2002 Act’).
8. The Judge sets out factors in favour of deportation between [33 – 35] and factors weighing against deportation between [36 – 43] leading to Judge’s conclusions at [44 – 45] in the following terms:

44. I am required to consider all the factors I have described above in the overall proportionality assessment.

45. I find that Exception 1 set out in section 117C(4) does not apply to the appellant. Although he has been lawfully resident in the UK for most of his life, and is socially and culturally integrated in the UK, for the reasons given above I do not consider that there would be very significant obstacles to his integration into Portugal if he were to be deported there. The first two circumstances nonetheless remain relevant to the overall proportionality assessment.

46. I find that Exception 2 set out in section 117C(5) does apply to the appellant. I find that he does have a genuine and subsisting relationship with a qualifying partner, and genuine and subsisting parental relationships with qualifying children, and that the effect of his deportation on them would be unduly harsh. Because of the seriousness of the appellant’s offence that finding is not sufficient to outweigh the public interest in his deportation, but I carry it forward into the overall proportionality assessment.

47. Parliament has laid down that for an offender who has committed an offence as serious as the appellant’s, very compelling circumstances over and above those described in Exceptions 1 and 2 are required to outweigh the public interest in his deportation. In my judgment the factors put forward by the appellant, even considered cumulatively, are not sufficient to meet that test. They are sufficient to meet Exception 2, and go part-way to meeting Exception 1, but they do not, even considered together, amount to very compelling circumstances over and above those two exceptions. Despite the emotional and practical difficulties that the appellant’s deportation would cause, on the evidence I have seen and heard I am confident that ultimately the appellant will be able to integrate into Portugal, and that his children will be well cared for and supported in the UK. His deportation need not mean a total absence from their lives. The harm that would result to the appellant and to his family does not, in the end, outweigh the strong public interest in his deportation because of his offending.

48. For those reasons I find that the decision to deport the appellant and refuse his human rights claim does not breach article 8 of the Convention, and accordingly this appeal must be dismissed.

9. The Appellant sought permission to appeal, asserting the Judge (i) failed to apply authority by reference to the decision of the Upper Tribunal in Abdullah & Ors (EEA, deportation appeals, procedure) [2024] UKUT 66 (IAC), and, (ii) failed to follow the authority of Castro (Appendix EU, “deportation order”) Portugal [2024] UKUT 393 (IAC).
10. Permission to appeal was granted by another judge of the First-tier Tribunal, the operative part of the grant being in the following terms:

2. The grounds argue that the Judge failed to apply the guidance in Abdullah in declining to join the Appellant's EUSS appeal, it is also argued that the Judge erred in failing to give the Appellant the benefit of the EU rules given that his offending spanned the end of December 2020.

3. The first ground has no merit. At the time of the hearing there was no extant EU appeal and there was nothing for the Judge to wait for or link to. It is arguable that with the Respondent relying on pre-withdrawal agreement conduct the EU rules applied.

4. The grounds disclose arguable errors of law and permission to appeal is granted.

11. Although it appeared the First-tier Tribunal had refused permission in relation to Ground 1, having found it had no merit, there is nothing within the grant of permission to appeal recording any restriction on the Appellant’s rights as such, and so both grounds are at large.
12. The application is opposed by the Secretary of State and the Rule 24 reply dated 5 February 2025, the operative part of which is in the following terms:

2. The respondent opposes the appellant’s appeal. In summary, the respondent will submit inter alia that the judge of the First-tier Tribunal directed himself appropriately.

3. PTA has only been granted on Ground 2, the respondent will submit that this ground is mere disagreement and discloses no material Error of Law. The grounds effectively remake the arguments made before FTTJ Dunne which were fully considered at [25-32] of their decision. The judge has correctly interpreted Castro as creating a distinction between where the pre transition period conduct is relied upon by the respondent, as it was in the Appellant in Castro’s case where his deportation was predicated on the basis of him being a persistent offender, unlike this appeal where his deportation is only on the basis of the post transition period offence resulting in a sentence in excess of 4 years. This is even further supported by the fact that far from being deported on the basis of being a persistent offender in view of his pre TP conduce A was instead granted EU settled status on 9/4/20.

13. In a letter dated 13 March 2025 the Appellant’s Solicitors filed a response to the Rule 24 notice in the following terms:

1. On the 10/03/2025 the EUSS appeal relating to PTA Ground 1 was reinstated under HMCTS reference: EU/59353/2024. Relevant evidence of this pre-existing EUSS appeal was put before the FTT but unfortunately the HMCTS portal showed no records of an existing EUSS appeal at that time. This was as it appears through no fault of the Appellant and down to an administrative issue with HMCTS. Relevant correspondence with the Immigration Tribunal is included under rule 15(2A) including email dated the 10/03/2025 which confirms the reinstatement of the EUSS appeal.

2. This PTA Ground 1 is maintained.

14. For sake of completeness, the Appellant’s appeal to the First-tier Tribunal was reinstated on 10 March 2025 under reference EU/59353/2024, said to be an appeal against refusal of an application under the EU Settlement Scheme, but after the date of promulgation of the appeal under challenge.

Discussion and analysis

15. The Appellant asserts the Judge should have adjourned these proceedings on the basis the decision of the Upper Tribunal in Abdullah provided authoritative guidance on how an appeal which concerns both pre-and post-Brexit conduct is to be resolved.
16. The case of Abdullah acknowledges the settled position that in respect of conduct carried out prior to 31 December 2020 the EEA regulations only apply directly to an individual, and thus give rise to an appeal under those regulations, if:

(1) The decision was taken under the EEA Regulations prior to 31 December 2020 or in connection with an application pending under the regulations; or,
(2) The individual was an EEA citizen (or a family member of such a person) lawfully resident under the EEA Regs (including those who had acquired permanent residence under reg 3. the EEA Regulations) and either:
(i) The decision was taken by 30 June 2021; or
(ii) Was taken after that date but when a valid application under the EUSS had been made before 30 June 2021 and was still pending (but not if they had been granted leave under the EUSS); or
(3) Is a person who falls within the scope of the CRRE Regulations.

17. It not disputed that the settled position is that in relation to conduct that occurred after 11 PM 31 December 2020 a decision to deport an individual is made under domestic law, even if they are an EU national, i.e. not under the Immigration (EAA) Regulations 2016, and that there is no right of appeal under those regulations.
18. As a point of procedure the tribunal in Abdullah also found that if the deportation decision against an EEA citizen arises in human rights appeal under section 82 of the Nationality, Immigration Asylum Act 2002 the appeal should be stayed pending resolution of any outstanding application under the EUSS’s to allow an appeal against a negative decision to be determined at the same time as a human rights appeal. That is the point relied upon by the Appellant but it was not found by the Judge that there was any outstanding application under the EUSS which was subject to an extant appeal.
19. It is important to note the chronology. The Part 1 deportation decision under domestic law was issued on 17 April 2022 and served on 19 April 2022. The rejection of the Appellant’s application for leave on human rights grounds, relied upon in support of an entitlement to an exception in the UK Borders act 2007 deportation decision, is dated 20 September 2022.
20. It is not disputed that the Appellant has lodged an appeal before the First-tier Tribunal which was submitted on 3 December 2024. The appeal was challenging the refusal of an application under the EU Settlement Scheme as noted above.
21. A letter dated 30 May 2024 from IJN Law accompanied the application for permission to appeal sought an application to extend time to appeal the EUSS decision said to be made on 17 April 2022, as it was acknowledged that the appeal was substantially out of time.
22. On the 17 December 2024 the appeal was struck out as a result of the failure of the Appellant to pay the appeal fee.
23. On 6 March 2025 there is an entry on the First-tier Tribunal System noted headed “payment pending”.
24. On 10 March 2025 the appeal was reinstated.
25. The Judge records at [12] having been advised by the Appellant’s representative on that occasion that he had lodged an appeal under the CRA Regulations against the notice of intention to make a deportation order, the Stage 1 decision. It is clear from the chronology, commented upon below, that no appeal was lodged in time against the Stage 1 notice.
26. The Judge refers to the notice of appeal being lodged 25 months after the service of the Stage 1 decision but notes that a decision was still awaited on the application to extend time for the appeal to be submitted.
27. At [14] the Judge wrote:

14. At present (i.e. on the day of the hearing) there is no valid appeal extant under the CRA Regulations and unless permission is granted to bring that appeal more than two years out of time there will not be. Even if permission were to be granted, and the appellant’s CRA appeal allowed, the result would be that a new deportation decision under the European regime would have to be made in any event. The decision concerned in the present appeal is already more than two years old and it is in the interests of both parties that this appeal is resolved. Adjourning this appeal would bring further delay for no benefit. Such an adjournment would not be in the interests of justice.

28. The Judge was legally correct to note that on the day of the hearing there was no valid appeal extant under the Regulations and therefore no pending appeal of the type considered in Abdullah which required the appeal before the Judge to be adjourned.
29. The appeal before the Judge was not against the Stage 1 decision but against the Stage 2 decision arising from the refusal of the Appellant’s human rights claim. The Judge was fully entitled, in the absence of any finding that the decision to deport was unlawful, to proceed as he did.
30. I find no material error made out in relation to Ground 1, as the conditions necessary to warrant the adjournment application, referred to in Abdullah, were not present in this appeal.
31. I find the Appellant has failed to establish that the Judge materially erred in law by failing to follow a binding authority.
32. In Ground 2 the Appellant asserts the Judge erred in law in failing to follow the authority of Castro (Appendix EU, “deportation order”) Portugal [2024] UKUT 393 (IAC) which established that in cases where a decision letter relied upon conduct both pre-and post-Brexit an EEA national appellant was entitled to have the totality of their conduct assessed under EU law.
33. That legal principle is not disputed. The point of dispute between the parties is the basis on which the deportation order was made. The Appellant seeks to argue that it was made on the basis of not only his post-Brexit conduct but also his pre-Brexit conduct. The Secretary of State’s position is that the post-Brexit conduct was the only conduct considered for the purposes of the deportation decision.
34. The Judge considered these arguments and makes a specific finding that preference is given to the Secretary of State’s argument. I find that finding is in accordance with the facts and is not a finding outside the range of those reasonably open to the Judge on the evidence. The fact the Appellant would prefer his European Law argument to stand, which would make it much more difficult to deport him, does not establish legal error in the Judge finding otherwise.
35. That statement of law is also demonstrated by paragraphs [14] and [15] of the decision to refuse the human rights claim, dated 20 September 2022, where it is written:

14. On 25 November 2021, at the same court, you were sentenced to 54 months imprisonment, concurrent to each count. There is no evidence to establish that you appealed against the conviction or sentence.

15. In light of your recent conviction, on 19 April 2022, you were served with a Notice of decision – ICD.4936A which attracted an in country right of appeal. You did not lodge an appeal against this Decision. In reply, you submitted representations dated 25 April 2022, setting out reasons why you should not be deported to Portugal.
(My emphasis)

36. The Deportation Order was made on the 20 September 2022 by virtue of section 32(5) Uk Borders Act 2007.
37. The Notice of decision to deport, dated 17 April but served on the 19 April 2022, the Part 1 decision, reads:

Part 1 – Deportation decision On 08 November 2021 at Sheffield Crown Court, you were convicted of five counts of Supply a controlled drug of Class A - crack Cocaine and two counts of Being concerned in supplying controlled drug - Class A - Crack, for which you were sentenced to 4 years and 6 months imprisonment. You fall within the definition of “foreign criminal” in section 32(1) because you are not a British or Irish citizen and you were convicted in the UK of an offence for which you received a sentence of at least 12 months’ imprisonment. Under section 32(5) of the UK Borders Act 2007, the Secretary of State must make a deportation order in respect of a foreign criminal, unless one or more of the exceptions set out in section 33 of the same Act applies. You have not shown that any of the exceptions apply to you. The deportation of a foreign criminal is conducive to the public good.

The public interest in your deportation is further strengthened because of your previous convictions. On 24 October 2008 at Sheffield Juvenile Court you were convicted of common assault for which you were given a referral order 4 months and ordered to pay compensation of £25.00.

On 25 February 2009 at Sheffield Juvenile Court you were convicted of battery for which you were given a referral order 6 months, referral discharge and ordered to pay compensation of £50.00.

On 26 April 2013 at Sheffield Crown Court you were convicted of burglary and theft – dwelling for which you were sentenced to young offenders institution 12 months and ordered to pay a victim surcharge of £100.00.

On 21 July 2017 at Derby Crown Court you were convicted of possess controlled drug – class B – cannabis/cannabis resin and possess knife blade/sharp pointed article in a public place for which you were given imprisonment 3 months wholly suspended 12 months, forfeiture and destruction of the drugs, paraphernalia, mobile phones, forfeiture of lock knife and unpaid work requirement 80 hours. On 30 October 2017 at Sheffield Crown Court the sentence was subsequently varied, order to continue, unpaid work requirement 10 hours added and ordered to pay costs of £150.00.

38. There was no appeal against the Part 1 decision the purpose of which was clarified by the Upper Tribunal in Vargova [2024] UKUT 00336(IAC), the relevant section of the headnote of which reads:

5. At the first stage, the Secretary of State issues a deportation decision, in response to which the subject is able to raise objections to the decision to make a deportation order. A Stage 1 decision does not restrict the subject’s right of residence and the safeguards in the Directive have no application or any appeal against the Stage 1 decision. The question to be considered at an appeal against a Stage 1 decision is whether the appeal should be allowed by the tribunal on the basis that there was a breach of domestic law in the process of making the decision to make the order, where the nature of the breach will have been such as to render the decision unlawful i.e. the legal validity of the decision to deport.

6. A person with leave to remain under the European Union Settlement Scheme (EUSS) may have a right of appeal under regulation 6 of the Immigration (Citizens’ Rights Appeals) (EU Exit) Regulations 2020 against a Stage 1 decision. The grounds of appeal against such a decision are found in regulation 8 of those Regulations. If no submissions are made in response to the Stage 1 notice, the only basis of challenge is the lawfulness of the decision on the basis of the information known to the decision maker on the basis of the application of established domestic law principles.

7. At the second stage, when a deportation order is made and notified, a decision is made that does restrict the right of the person referred to in Article 10 and bring into play the provision of Article 21 and the procedural safeguards set out in the Directive.

8. If human rights issues are raised in response to a Stage 1 decision on family or private rights grounds by a ‘relevant person’ who commits a criminal act after the specified date, these must be considered by the Secretary of State. If she maintains it is lawful to deport, a Stage 2 decision will be made rejecting any human rights claim. Any right of appeal against that decision is to be found in domestic law. The proportionality of the decision by reference to all relevant facts, including the EU national’s status and Article 20(2) of the Withdrawal Agreement excluding the application of EU law, can be considered at that point.

39. There was no appeal lodged in time against the Stage 1 decision.
40. As the Secretary of State only relied on post-Brexit conduct, she was entitled to make a decision to deport under domestic law, namely by reference to the UK Borders Act 2007 as referred to in the 19 April and 20 September 2002 decisions.
41. As this is an appeal under domestic law which does not involve any element of EU law, as property found by the Judge, it cannot be said the Judge has failed to follow an authority which relates to completely different factual matrix than that which existed in this appeal.
42. I find the Appellant has not established legal error material to the decision to dismiss the appeal. The Judge’s findings are not rationally objectionable.

Notice of Decision

43. The First-tier Tribunal has not been shown to have materially erred in law.
44. The determination shall stand.

C J Hanson

Judge of the Upper Tribunal
Immigration and Asylum Chamber

4 April 2025