Tribunal decisions

The decision

IN THE UPPER TRIBUNAL
IMMIGRATION AND ASYLUM CHAMBER Case No: UI-2025-000785
UI-2025-000799
First tier reference: DA/00033/2024
EA/02234/2024

THE IMMIGRATION ACTS

Decision & Reasons Issued:
On 24 July 2026

Before

DEPUTY UPPER TRIBUNAL JUDGE PICKERING

Between

HENDRIX EKWEN
(ANONYMITY NOT ORDERED)
Appellant
and

SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: Mr Metzer KC, of counsel
For the Respondent: Mr McVeety, a Senior Presenting Officer

Heard at Phoenix House (Bradford) on 23 April 2026

DECISION AND REASONS

1. For ease of reference I refer to the parties as they were before the First-tier Tribunal.
2. This is the remaking of the appellant's appeal following the decisions of Upper Tribunal Judge Hanson, who found that the decision of the First-tier Tribunal involved the making of an error of law and set it aside.
3. The First-tier Tribunal did not issue an anonymity order and the Upper Tribunal. I take into account the principle of open justice and see no reason to make an order. Therefore no order is made.
Background
4. The appellant is a citizen of Italy born on 7 April 1992.
5. He arrived in the United Kingdom on 23 September 2009, joining his mother and siblings.
6. On 3 January 2015 he received a conditional discharge for possession of cannabis.
7. On 10 March 2020 he made an application under the European Union Settlement Scheme.
8. On 6 November 2020 he was convicted at Newcastle Crown Court of one count of rape. The offence had occurred in 2017. He was remanded into custody on conviction and on 7 May 2021 was sentenced to eight years' imprisonment.
9. On 7 August 2023 the respondent notified the appellant of her intention to deport him pursuant to the Immigration (European Economic Area) Regulations 2016 ("the 2016 Regulations").
10. On 3 April 2024 a deportation order was signed and on 4 April 2024 the appellant's EUSS application was refused.
Legal Framework
11. The relevant law to be applied is not in dispute between the parties. EU law contains three levels of protection against expulsion for EU citizens such as the appellant. Those levels are identified in the Citizenship Directive and the 2016 Regulations. They are basic grounds, serious grounds and imperative grounds
12. It is Regulation 27 provides for differing levels of protection. Regulation 27(3) applies to a person who has permanent residence in the UK under Regulation 15. It is common ground that appellant has a right of permanent residence. A relevant decision may not be taken in respect of a person with a right of permanent residence except on serious grounds of public policy and public security.
13. Regulation 27(4) provides enhanced protection. It applies to a person who has lived in the UK for a continuous period of at least 10 years before the date of the relevant decision. A relevant decision may not be taken in respect of such a person except on imperative grounds of public security.
14. Regulation 27 (5) provides:
(5) The public policy and public security requirements of the United Kingdom include restricting rights otherwise conferred by these Regulations in order to protect the fundamental interests of society, and where a relevant decision is taken on grounds of public policy or public security it must also be taken in accordance with the following principles—
(a) the decision must comply with the principle of proportionality;
(b) the decision must be based exclusively on the personal conduct of the person concerned;
(c) the personal conduct of the person must represent a genuine, present and sufficiently serious threat affecting one of the fundamental interests of society, taking into account past conduct of the person and that the threat does not need to be imminent;
(d) matters isolated from the particulars of the case or which relate to considerations of general prevention do not justify the decision;
(e) a person’s previous criminal convictions do not in themselves justify the decision;
(f) the decision may be taken on preventative grounds, even in the absence of a previous criminal conviction, provided the grounds are specific to the person.
15. The burden of satisfying the Tribunal that the appellant is, on a balance of probabilities, a person who represents a genuine, present and sufficiently serious threat affecting one of the fundamental interests of society, lies on the respondent.
16. Regulation 27(6) states that before taking a relevant decision on the grounds of public policy and public security in relation to a person (“P”) who is resident in the United Kingdom, the decision maker must take account of considerations such as the age, state of health, family and economic situation of P, P’s length of residence in the United Kingdom, P’s social and cultural integration into the United Kingdom and the extent of P’s links with P’s country of origin.
17. Schedule 1 of the 2016 Regulations provides for consideration of public policy and public security for the fundamental interests of society.
18. I was provided with an extensive bundle of authorities. The following authorities address the impact of imprisonment and the breaking of integrative links Land Baden-Wurtemburg v Tsakouridis (Case C-145/09) [2011] 2 CMLR 11 [33] and Secretary of State for the Home Department v Viscu [2019] EWCA Civ 1052 Hafeez v The Secretary of State for the Home Department [2020] EWCA Civ 406
The Hearing
Preliminary issue
19. Mr Metzer, relying upon and adopting the submissions contained within his skeleton argument, submitted that Upper Tribunal Judge Hanson's Error of Law decisions contained material errors. Those submissions had been developed at length within the skeleton argument and may be summarised as follows: that the Upper Tribunal had improperly shifted the burden of proof to the appellant; wrongly permitted the respondent to withdraw a concession; wrongly upheld the respondent's third ground of appeal; failed to set aside the First-tier Tribunal's decision before remaking it; erred in concluding that the respondent had established imperative grounds; and improperly permitted the respondent to advance new arguments before the Upper Tribunal.
20. Meaning no discourtesy to Mr Metzer, I declined to consider those submissions. As expressed at the hearing, it is not for me, when remaking the appeal pursuant to the Error of Law decisions, to revisit or effectively hear an appeal against the conclusions reached by Upper Tribunal Judge Hanson. If the appellant contends that the Error of Law decisions are themselves flawed, the appropriate course is to challenge that decision before the Court of Appeal. I therefore proceeded on the basis of the findings and directions contained within the Error of Law decision.
Issues to be considered
21. The parties were, of considerable assistance in identifying the findings that had been preserved. In particular, given that Upper Tribunal Judge Hanson did not find an error in relation to Ground 1, it remains a preserved finding that the appellant arrived in the United Kingdom on 23 September 2009. It was also common ground, both before me and throughout the respondent's decision-making process, that the appellant had acquired a permanent right of residence. Those matters were therefore not in dispute before me.
22. The issues requiring determination are:
(a) Does the appellant benefit from imperative grounds protection;
(b) if so, whether the respondent has established imperative grounds of public security (arguments to be advanced in the alternative);
(c) proportionality;
(d) Article 8 ECHR
23. I had before me a consolidated appeal bundle, an authorities bundle and skeleton arguments from both representatives.
24. I heard oral evidence from the appellant and his mother and submissions from the advocates after which I reserved my decision. There had been an application for the appellant’s sister to give oral evidence through a video link however it was helpfully agreed between the advocates that there was no challenge to this evidence. It was therefore confirmed that it was unnecessary for me to determine the application for the oral evidence through video link. I head helpful and focussed submissions from the advocates after which I reserved my decision.
Findings and my analysis
25. I make it clear that I have taken into account all the evidence presented to me even where not expressly referred to. I have also take the opportunity to refresh my memory of the record of proceedings.
26. Before turning to the issues it is convenient to make findings upon four key areas of evidence which overlap substantially with the issue I am required to determine. I hope this brings clarity as to how I ultimately determined the issues.
The offence
27. This was an appalling offence. In 2017 the appellant raped the victim. The appellant and victim did not know one another, but were out with mutual friends on the night in question. Drinking was involved. The appellant and his friend at some point in the evening moved to the victims home. The victim had consensual sexual intercourse with the appellant’s friend. The victim then feel asleep. The victim was awoken, by someone having sexual intercourse with her, whilst lying behind her. She expected it to be the appellant’s friend when in fact it was the appellant. As soon as she realised she demanded the appellant and his friend to get out of her home and reported this to the police.
The appellant's attitude to his offending
28. The appellant has not always accepted responsibility for raping the victim.
29. He maintained his innocence at trial. Following conviction he continued to deny the offence and sought to challenge his conviction. Those matters are the clearest evidence that, at the time of trial and for a significant period afterwards, he did not accept responsibility for what he had done. I found this deeply troubling.
30. I accept, however, that acceptance of responsibility is not necessarily a fixed concept and that it is possible to develop insight over time. In the appellant's case I find that this is what has occurred, albeit it has been a slow and gradual process.
31. Before the First-tier Tribunal the appellant's position was, in my judgment, mixed. There were undoubtedly positive aspects of progression demonstrated in his evidence in acknowledging the offending. He acknowledged the seriousness of rape. He described having “learned his lesson” He demonstrated some understanding of the impact such offending can have upon a victim. He stated that he would never wish such an experience upon his sisters and accepted that rape can cause profound physical and psychological harm. Those matters indicated that there was at least some developing awareness of the seriousness of the offence.
32. However, there remained aspects of his evidence that gave the First-tier Tribunal, and now give me, cause for concern. Most notably, the appellant continued to distance himself from responsibility for his conduct. Whilst acknowledging the conviction, he described his involvement as "inadvertent" and maintained that he had misinterpreted signals from the victim. That language suggested to me that, at that stage, he had not fully accepted responsibility for what had occurred. This is because this was a rape which has a number of aggravating features. The victim was vulnerable. Notably she had consumed alcohol was sleeping at the time of the offence with her back to the appellant. The fact that the appellant still minimised his responsibility and tried to place responsibility of the rape with the victim was deeply concerning. The conclusion I drew, taking this in stages, was that acknowledging a conviction is one thing; accepting personal responsibility for the conduct giving rise to that conviction is quite another and it was the latter that was important in light of the OASys report which was relevant to future risk.
33. The evidence before me now demonstrated a more significant shift in position.
34. In his most recent statement the appellant expressly stated that he now sees matters differently. He stated that what he did was wrong. He took full responsibility for his actions. He acknowledged the damage and harm that he had caused to the victim. He explained that reaching that position had been difficult for him but that he now recognised the necessity of doing so.
35. The appellant was extensively cross-examined by Mr McVeety about the offence and about his change in position. I accept that the appellant found this difficult. There were occasions during his evidence where he referred to the offence as an "event" rather than directly describing it as rape. He spoke about being naïve and misreading the situation. At times his oral evidence lacked the same clarity and precision that appeared in his written statement. I have nevertheless considered his evidence as a whole rather than focusing upon individual answers given in the pressure of cross-examination. In making that observation I make it clear that is no criticism of Mr McVeety’s cross examination. Matters were put quite properly to the appellant.
36. I accept that the appellant was less articulate in giving oral evidence than he had been in his written statement. However, I do not accept that this reflected continued minimisation of his conduct. My assessment was instead that the appellant found it difficult to speak openly about the offence. Indeed, I formed the impression that he was uncomfortable confronting what he had done. This is unsurprising given what I have said. This was an appalling offence.
37. The appellant repeatedly returned to the theme that he has reflected upon his offending and would never place himself in those circumstances again. He explained that he now understands that his actions constituted rape. He accepted that there was no consent. He spoke about the impact upon the victim and accepted that the harm caused was something that could never be undone.
38. I have reflected carefully on whether there is a performative element to what the appellant now says. This was especially at the forefront of my mind given that these are deportation proceedings and that this is what in effect the appellant must say if he wishes to avoid deportation.
39. Having considered the evidence with care, I do not find that there is a performative element. The reason for that conclusion is that the appellant's position has not changed suddenly. If his current account were merely an attempt to present himself in the most favourable light possible in order to avoid deportation, one would have expected him to have adopted such a position much earlier. He did not do so.
40. In the OASys assessment the appellant continued to deny responsibility. There was little evidence of victim empathy and the assessor expressed concern regarding his ability to address the underlying causes of his offending. Again it seems to me at the point of the OASys report had the appellant wished to better his circumstances, for example, reducing a risk assessment, he would have accepted responsibility at this stage.
41. Even before the First-tier Tribunal, although there had been some movement in the appellant’s position and language, he remained equivocal. His use of language such as his involvement being "inadvertent" and his references to misunderstanding signals from the victim demonstrate that he was still distancing himself from responsibility. Again returning to the concept of performative evidence, again it seemed most obvious were it feigned to present in this way to the First-tier Tribunal.
42. What I observed before me was different again. The progression from complete denial, to partial acknowledgement, to full acceptance of responsibility appeared to me to be gradual and incremental. In my judgment that is far more consistent with a process of punishment, reflection and maturation.
43. I formed the view that the appellant felt genuine shame about what he had done. What particularly struck me was his evidence that he did not like being known as that "kind of person". I did not understand that statement as an attempt to minimise the offence. Rather, I understood it as an expression of shame that he had come to be properly described as a rapist.
44. I also considered the appellant's age. Whilst he was not a young offender at the time of the rape, being approximately 24 years old, almost a decade has now elapsed since the offence. The passage of time in no way diminishes the gravity of what occurred or the profound harm caused to the victim. However, it does provide a substantial period during which reflection, maturation and personal development may occur and I accept in the appellant’s case it has.
45. I am also cognisant and there was no challenge to the appellant undertaking courses in prison which the appellant says has assisted him to gain insight. This is precisely the function of such courses and these in my judgment provide a further tenant of evidence as to why there has been the gradual and incremental change in the appellant’s attitude.
46. Distilling my reasons. I ultimately accept that the appellant's change in attitude is genuine. Firstly, I am satisfied that he now understands that what he did was rape. Secondly, I am satisfied that he now has a meaningful understanding of the impact of the offence upon the victim. Thirdly, I accept that the consequences of the conviction itself have become a protective factor. The appellant recognises not only the impact that the offending had on the victim but the broader consequences as well. The offence has had a detrimental impact upon his own life through imprisonment, the impact it may have on the kinds future employment he may be able to obtain (this was highlighted by the author of the OASys report) and the stigma attached to a conviction for rape. On this latter point I accept that the appellant is deeply ashamed of the impact it has had upon his family. He spoke of the high morals and values of his family and acknowledges the pain that his behaviour has caused them. The fact that they have continued to support him is important as I accept that he genuinely is ashamed of the impact he has had upon them.
47. Drawing those matters together, I find that the appellant's acceptance of responsibility is genuine. I find that there has been a material change in his attitude since the preparation of the OASys report. I further find that he now demonstrates a level of insight into both his offending and its consequences that was absent when he maintained his innocence that means he is unlikely to offend again.
The OASys Report
48. I attach considerable weight to the OASys report.
49. The report identifies a high risk of serious harm to adult females and a high risk of contact sexual reoffending. I can see why this conclusion was reached given the concerns regarding sexual entitlement, lack of victim empathy and the appellant's refusal at that time to accept responsibility.
50. Had those matters remained the appellant's current position I would have regarded them as powerful evidence in support of the respondent's case.
51. However, the assessment was undertaken at a time when the appellant continued entirely to deny responsibility. The concerns expressed are therefore founded on a factual matrix which I have found has materially changed.
52. The report's criticism that the appellant lacked insight and had failed to address his offending behaviour was entirely justified at the time it was written.
53. Nevertheless, the Tribunal must assess present and future risk at the date of hearing. I cannot therefore proceed upon the basis that the OASys assessment now fully captures the appellant's current presentation. I make it clear that this is not a criticism of the OASys report nor am I finding that its conclusions were wrong when made. Rather, I find that the central concerns identified by the assessor, namely the appellant's refusal to accept responsibility for the offence, his lack of victim empathy and the consequential inability to address his offending behaviour, have materially changed since the assessment was undertaken. It is that change in circumstances, rather than any deficiency in the report itself, which explains why I am required to evaluate the appellant's present risk as distinct from the position that existed when the assessment was completed.
54. I note also that the Risk of Serious Recidivism assessment was low. Whilst the OASys Sexual Reoffending Predicator (OSP) assessment was high, that assessment does not capture the evolution in the appellant's understanding and acceptance of responsibility that I have found has occurred.
55. I also note that the appellant has maintained good behaviour in custody and has not received adjudications. Whilst this is the minimum that can be expected it is ultimately a positive rather than detrimental factor.
56. Having considered the OASys report and attributing it considerable weight I have considered it in the round with rest of the evidence, including my findings as to the appellant’s attitude to his offending.
The appellant’s mother’s evidence
57. The appellant’s mother’s was briefly cross examined however I have considered her evidence holistically. I accept that she was “heartbroken” by the appellant’s offending and accept that it was incongruous with the religious and moral values with which she had raised him. Whilst I was mindful that she as his mother, would understandably want to be supportive of him, I accept her evidence that she has seen a significant change and maturity of him through his term of imprisonment.
58. Turning to the issues
(a)Does the appellant benefit from imperative grounds protection?
59. As stated the earlier there is no dispute that the appellant had acquired permanent residence. There is also the preserved finding that the appellant entered in September 2009. The deportation order was signed on 3 April 2024. The relevant ten-year period therefore runs back to 3 April 2014.
60. The central issue is whether the appellant remained sufficiently integrated within the United Kingdom to attract the enhanced protection afforded by regulation 27(4).
61. I derive considerable assistance from the decision of the Court of Appeal in Hafeez. The appellant must demonstrate both the requisite period of residence and sufficient integration within the host state. This is why the parties agree, as set out in the authorities that the Tribunal must consider whether the appellant's integrative links have been broken.
62. The respondent relies upon the appellant's criminal conviction for possession of a Class B drug for which he was conditionally discharged, 5 domestic abuse incidents between 2012-2014, the rape conviction and imprisonment as demonstrating either a lack of integration or the severance of previous integration.
63. Taking each of these in order.
64. The respondent relied upon the 2015 cannabis matter and the 5 domestic abuse incidents 2012-2014 referred to within the OASys report. Addressing the latter first. I was not provided with a PNC or any further details for either matter such as evidence from the police. The appellant was not cross-examined about the 2012-2014 allegations. I note what is recorded in the OASys but no action seems to have been taken. Given that so little evidential detail was provided I have attached little weight to this. For clarity, in applying Schedule 1 (4) the 2012-2014 references in the OASys report do not cause me to attach little weight to integration between 2012-2014 having regard to Schedule 1 (4)(b) because it had not been sufficiently evidenced that there was an act otherwise affected the fundamental interests of society.
65. There was an underlying submission of something more insidious of whether the 2012-2014 domestic abuse incidents, when aligned with the rape revealed an attitude towards women that was not aligned with societal values. For clarity I bring forward my observations/findings about the 2012-2014 point articulated at paragraph 65 of my determination. Even irrespective of the little weight that I have attached to this I do heed this submission because of what is recorded more generally in the OASys report independent of the 2012-2014 domestic incidents.
66. The author of the OASys report had expressed concerns that the appellant needed to undertake work about his attitudes to women/relationships and sexual entitlement. This was because at the time of the OASys report the appellant did not recognise the victim as a victim.
67. The author of the OASys report observed positive features such as the appellant’s attitude to the female author of the pre sentence report (PSR) and the female interpreter. The appellant was also able to demonstrate his ability to articulate in a language values that recognised equality. What I derive from this is not that the OASys report author had concerns to about the appellant’s attitude to women general level, but there were specific concerns surrounding women/relationships and sexual entitlement given his failure to acknowledge the offending. Further the author of the OASys report notes that the appellant had a good understanding of consent and the law in relation to sex. His sexual interests were described as “appropriate” and gave no cause for concern in respect of the potential harm to others such as the abuse and control of women.
68. For completeness I recognise that challenge articulated by the OASys report author, as it has been by analogy at times a difficulty for me in assessing the evidence to recognise the prosocial person mentioned in the letters of support and statements presented to me, with the appellant’s behaviour in connection with the conviction. Whilst I do not minimise the concerns expressed I bring forward my observations made in my preceding section about the appellant’s attitude to his offending.
69. Put another way I accept that the offence itself demonstrated attitudes of sexual entitlement at the time it was committed. The appellant engaged in sexual intercourse with a vulnerable woman who was asleep and incapable of consenting. The offence therefore plainly evidenced a serious failure to respect the dignity and safety of the victim. The issue for me, however, is not simply whether those attitudes existed in 2017; plainly they did. I cannot conclude anything else. Otherwise the offending would not have happened. The relevant question is whether those attitudes persist today. It is in answering that question that I have had regard to the appellant's subsequent development in insight, acceptance of responsibility and understanding of the impact of his offending.
70. Similarly, whilst I do not minimise the cannabis offence, it sits at the lower end of the criminal spectrum and carries limited weight within the overall assessment.
71. That said, when considering integration, the rape conviction is altogether different. This was an appalling offence. The sentence imposed was substantial reflecting the gravity of it. The offending had unsurprisingly a profound effect on the victim as recorded in the OASys report. Such conduct plainly represents a rejection of fundamental societal values. I therefore begin from the premise that a custodial sentence of this length imposed for offending of this gravity weighs heavily against a finding of continuing integration.
72. However, neither the offence nor the sentence is determinative.
73. I have considered Schedule 1 of the Regulations. In accordance with paragraph 4 I attach little weight to integrating links formed around the time of the offence and little weight to any integration said to arise merely from the appellant's presence within custody.
74. The more compelling evidence arises from the appellant's life in the United Kingdom before imprisonment.
75. He engaged significantly with education. He attended Newcastle College. He obtained qualifications including a Foundation Degree in Sports Coaching together with vocational qualifications. Sustained educational engagement is, in my judgment, an important indicator of integration. It reflects participation within wider society and interaction with institutions, peers and tutors over a number of years.
76. He also established a considerable employment history. He worked in a variety of occupations. None is individually determinative, but collectively they demonstrate meaningful participation in the economic life of the United Kingdom. Many of these positions involved customer-facing roles requiring engagement with members of the public.
77. There is also evidence of broader community participation through football, coaching and grassroots sporting activity. There are supporting references speaking to these activities. Whilst I did not hear oral evidence from their authors, there was no meaningful challenge to that evidence.
78. I accept that the appellant comes from a close-knit family and that his family relationships are genuine and enduring. I remind myself, however, of paragraph 2 of Schedule 1. Family relationships alone do not establish integration. Nevertheless, they remain relevant when viewed alongside the appellant's education, employment, friendships and community activities. Those links survived imprisonment.
79. The most weighty factor pulling away from integration is that a lengthy custodial sentence for a serious rape. I accept that can itself indicate a severance of integrative links. I have had in mind what is said in the authorities including Viscu and Schedule 1 of the 2016 Regulations.
80. The appellant's family relationships remained intact throughout his imprisonment. This attracts little weight but it is illustrative of the relationships. I have taken into account the appellant's development in insight and acceptance of responsibility. The prolonged denial of responsibility weighed heavily against him. However, for the reasons already set out, I have found that there has now been a genuine change in attitude. That finding points away from a conclusion that the appellant remains fundamentally disconnected from the values of the host society.
81. Having considered the evidence carefully, however, I am not satisfied that such severance occurred on the facts of this particular case.
82. Drawing these matters together, I accept that prior to the actual rape the appellant had evidenced meaningful links to the UK outside his immediate family. I accept at the time of the rape this attenuated he weight to be attached to the integrative links but they were not broken. The rape conviction, custodial sentence and prolonged denial of responsibility significantly undermined the appellant's integrative links. However, they did not extinguish them because of the weight I have attached to the links forged prior. The links were not broken because the appellant's education, employment, community involvement, friendships and family relationships had been established over many years before the offending and continued despite imprisonment
83. Standing back and considering the evidence in the round, I have adopted a holistic approach in line with AA (Poland) [2024] EWCA Civ 18 §13. The appellant’s residence since 2009, his education, employment history, social and community engagement, enduring friendships and continuing family support, I am satisfied that the appellant remained sufficiently integrated within the United Kingdom to benefit from the enhanced protection afforded by regulation 27(4).
84. The respondent must therefore establish imperative grounds of public security.
(b) Imperative grounds of public security
85. Having found that the appellant benefits from the enhanced protection afforded by regulation 27(4), the respondent must establish that his deportation is justified on imperative grounds of public security. As acknowledged earlier in my determination I know that there was disagreement on the part of the Mr Metzer about whether the respondent should have been allowed to withdraw her concession on this point but as expressed that I was not the correct venue for this argument to be ventilated. This is why I have gone on to address this issue.
86. Whilst not defined within the 2016 Regulations, imperative grounds are recognized high threshold. LG and CC (EEA Regs: residence; imprisonment; removal) Italy [2009] UKAIT 00024 in drawing a comparison between imperative and serious grounds, says of the former:
110. Secondly, we cannot accept the elevation of offences to "imperative grounds" purely on the basis of a custodial sentence of five years or more being imposed. As was said by Carnwath LJ in LG (see paragraph 32(3)), there is no indication why the severity of the offence in itself is enough to make removal "imperative" in the interests of public security. Such an offence may be the starting point for consideration, but there must be something more, in scale or kind, to justify the conclusion that the individual poses "a particularly serious risk to the safety of the public or a section of the public". Terrorism offences or threats to national security are obvious examples, but not exclusive. Serial or targeted criminality of a sufficiently serious kind may also meet the test. However, there needs to be some threat to the public or a definable section of the public sufficiently serious to make expulsion "imperative" and not merely desirable as a matter of policy, in order to ensure the necessary differentiation from the second level.
87. Tsakouridis states:
40     It follows from the wording and scheme of Article 28 of Directive 2004/38, as explained in paragraphs 24 to 28 above, that by subjecting all expulsion measures in the cases referred to in Article 28(3) of that directive to the existence of 'imperative grounds' of public security, a concept which is considerably stricter than that of 'serious grounds' within the meaning of Article 28(2), the European Union legislature clearly intended to limit measures based on Article 28(3) to 'exceptional circumstances', as set out in recital 24 in the preamble to that directive.
41     The concept of 'imperative grounds of public security' presupposes not only the existence of a threat to public security, but also that such a threat is of a particularly high degree of seriousness, as is reflected by the use of the words 'imperative reasons'
88. Tsakouridis acknowledges that public security covers both a Member State's internal and its external security. However, the conduct of the person concerned must represent a genuine and present threat to a fundamental interest of society or of the Member State concerned, previous criminal convictions cannot in themselves constitute grounds for taking public policy or public security measures.
89. What I derive from the distinction between imperative grounds is that it is a more stringent test and requires more than the establishment of serious grounds of public policy or public security. The assessment is a forward-looking one concerned with present and future risk rather than punishment for past conduct. Whilst the gravity of offending is plainly relevant, the authorities make clear that seriousness alone cannot establish imperative grounds. The length of the sentence is not determinative.
90. I therefore begin with the index offence.
91. The appellant's conviction for rape is an exceptionally serious matter. I have no hesitation in describing the offending as appalling. The victim was vulnerable by reason of intoxication and because she was asleep. The offending represented a grave violation of the victim. The impact upon the victim was profound. The sentence of eight years' imprisonment imposed by the Crown Court reflects the seriousness with which the criminal courts viewed the offending.
92. The offence plainly engages a number of the fundamental interests of society identified within Schedule 1 of the 2016 Regulations, including the protection of the public and the protection of the rights and freedoms of others.
93. I therefore attach very substantial weight to the seriousness of the offending.
94. The respondent also relies heavily upon the OASys assessment. I accept that this is professional evidence which attracts considerable weight. The report identified a number of highly concerning features. The appellant was assessed as presenting a high risk of serious harm to the public, particularly adult females. The assessment recorded a high risk of contact sexual reoffending. It identified concerns regarding sexual entitlement, victim empathy and the appellant's refusal to accept responsibility for the offence. The author expressed concern that meaningful progress in reducing risk was unlikely whilst the appellant continued to deny responsibility and failed to address the underlying causes of his behaviour. I regard those concerns quite properly expressed on the information available to the assessor at that time.
95. The respondent also places reliance upon the five reported domestic abuse incidents between 2012 and 2014. Whilst I accept that these matters form part of the appellant's background, the evidential detail as set out previously within my determination extremely limited. The appellant was not cross-examined in any detail regarding those incidents and no substantive evidence was adduced concerning the circumstances surrounding them. Accordingly, I approach those matters with caution and as set out attach only limited weight to them.
96. I have nevertheless considered whether, taken together with the rape conviction, they indicate an underlying attitude towards women inconsistent with the values of a democratic society. That is a matter that plainly concerns me. Violence against women and girls and conduct founded upon sexual entitlement are entirely inconsistent with the fundamental interests of society.
97. I accept that the offence itself demonstrated attitudes of sexual entitlement at the time it was committed. The appellant treated the victim's autonomy and capacity to consent with a profound lack of respect. The issue before me, however, is not whether such attitudes existed at the time of the offending. That is self-evident from the conviction. Rather, the question I must answer is whether those attitudes continue to exist and whether they establish a present threat of the degree required by the imperative grounds threshold.
98. It is also notable that in his earlier evidence before the First-tier Tribunal the appellant described his involvement in the rape as "inadvertent" and suggested that he had misinterpreted signals from the victim. Those comments are deeply troubling. Had that remained the appellant's position, I would have had little difficulty concluding that serious concerns persisted regarding his attitudes towards women, his level of insight and the extent to which he accepted responsibility for the offending.
99. The difficulty for the respondent is that I have found that the appellant's position has materially changed since the OASys assessment and since his evidence before the First-tier Tribunal. In reaching that conclusion I am not finding that the OASys assessment was incorrect when made. On the contrary, I consider that the concerns identified by the assessor were entirely justified on the information then available. The difficulty for the respondent is that the assessment proceeded on the basis that the appellant denied responsibility for the offence, lacked victim empathy and displayed limited insight. For the reasons already given, I have found as a fact that those matters have materially evolved since that assessment was completed.
100. For the reasons set out earlier in this decision, I accept that the appellant now takes full responsibility for what he did. I accept that he now understands that what occurred was rape. I recognize that it may read as astonishing that he did not recognise that at the time of the offending in 2017 or indeed at trial. However I accept that he now appreciates the impact of his offending upon the victim. I further accept that this change has not occurred suddenly or opportunistically but has developed gradually over time through a process of reflection and maturation.
101. I have considered carefully whether the appellant's change in position should be viewed as a cynical attempt to improve his prospects in these proceedings. Having considered the evidence as a whole, I do not accept that proposition.
102. Indeed, had the appellant's objective simply been to place himself in the most favourable position possible, it is difficult to understand why he would have persisted for so long in denying responsibility. What persuades me that the change is genuine is the incremental nature of that change. In the OASys report there was complete denial. Before the First-tier Tribunal there was a partial shift but continued equivocation. Before me there was, for the first time, an unequivocal acceptance of responsibility.
103. I recognise that the appellant was not always articulate in cross-examination. There were occasions where he struggled to express himself and where he reverted to language that was less direct than that contained in his written statement. However, I do not consider that those difficulties undermined the core of his evidence. My overall assessment was that he found it difficult to discuss the offence because of what he had come to understand about it, rather than because he was seeking to avoid responsibility for it.
104. I have also considered the evidence concerning the appellant's behaviour whilst in custody.The appellant has incurred no adjudications. He has been assessed as compliant and has engaged appropriately with the prison regime. I accept that compliance with prison rules is no more than should ordinarily be expected, but equally it is relevant that there is no evidence of behavioural deterioration, violence, disciplinary problems or escalating risk whilst in custody.
105. I further note that the Risk of Serious Recidivism assessment was assessed as low. I recognise that the OSP assessment remained high and I do not minimise that fact. However, the Tribunal's task is not to determine whether some risk remains. The task is to determine whether the respondent has established a present threat of such gravity that deportation becomes imperative.
106. I remind myself throughout that imperative grounds protection sets an exceptionally high bar which in my judgment has not been met.
107. Dealing with the two discreet submission made by the respondent. Firstly that there is a threat posed to public security in that there is a propensity to act the same way in the future. Secondly that even if there is insufficient evidence of ongoing risk or a propensity to reoffend again this was a grave instance of sexual abuse and is sufficient to meet the elevated threshold of imperative grounds.
108. The written submissions highlighted paragraphs George which is in fact an analysis of what is said Tsakouridis and I v Oberbürgermeisterin der Stadt Remscheid. Whilst particular sections of §44 was highlighted to me I have considered it as a whole.
44.     The Court referred to the 'particularly high degree of seriousness' of the relevant threat, by reference to paragraph 41 of Tsakouridis (paragraph 20). The law of the European Union did not impose on member states a 'uniform scale of values' in making the relevant assessment (paragraph 21). Article 28(3) of Directive 2 provided that imperative grounds of public security are to be 'defined by member states', subject to the supervision of European institutions (paragraph 23). The Court then listed the factors which must be taken into account by member states in paragraphs 25-27. One of those is that the sexual exploitation of children is one of the offences referred to in article 83(1) of the Treaty on the Functioning of the European Union ('the TFEU') as 'one of the areas of particularly serious crime with a cross-border element in which the European legislature may intervene' (paragraph 25). It followed from the listed factors that member states might regard such offences as 'constituting a particularly serious threat to one of the fundamental interests of society, which might pose a direct threat to the calm and physical security of the population' and thus meet the criterion of 'imperative grounds of public security'. Even if the referring court were to find, by reference to 'particular values of the legal order' of the member state, that, the offences met that test, that would not necessarily be enough (paragraph 29). In general, a propensity to act in the same way in the future would be necessary (paragraph 30).
109. The offence was extremely serious. The historical risk assessments are concerning. The OASys report identifies features that any reasonable Tribunal would regard as troubling. However, imperative grounds require more than concern. They require a threat of a particularly high degree of seriousness.
110. Distilling my findings and for clarity, for the reasons already given whilst this was an appalling offence I have found that that the appellant would not offend again. This is because of the insight gained by the appellant that did not exist at the time of the OASys report for the reasons already given. The author of the OASys report recognised that there was no evidence of a pattern of offending behaviour and that there was no real evidence of historial or ongoing criminality. The appellant understood the concept of consent. They observed that the appellant was prosocial in his conduct. Understood and had appropriate understanding of equity and It was the lack of acceptance of responsibility by the appellant that caused the concern for the author and I can understand why given how the appellant presented to the author of the OASys report.
111. Standing back and considering the evidence in the round, I am not persuaded that it has been demonstrated appellant presently represents the exceptionally serious threat.
112. Central to that conclusion is my finding that there has been a material change in the appellant's insight, acceptance of responsibility and understanding of the harm caused by his offending since the preparation of the OASys report. Whilst the report remains important evidence, I am not satisfied that it fully reflects the appellant's current presentation.
113. Taking account of the seriousness of the offence, the professional assessments, the low assessment of serious recidivism, the absence of disciplinary concerns in custody, the appellant's developing insight, his acceptance of responsibility and the support available to him upon release, I am not satisfied that the respondent has established imperative grounds of public security.
114. Accordingly, the respondent has not justified the appellant's deportation under regulation 27(4) of the 2016 Regulations.
The alternative arguments.
115. Even if I am wrong that the appellant benefits from imperative grounds protection, I would nevertheless allow the appeal because the respondent has failed to establish that the appellant's personal conduct represents a genuine, present and sufficiently serious threat affecting one of the fundamental interests of society.
116. I have no difficulty in accepting that the appellant's offending engaged fundamental interests of society. The offence was a serious sexual offence committed against a vulnerable victim. The offending plainly engaged the public interest in protecting the public, preventing social harm and protecting the rights and freedoms of others.
117. However, Regulation 27 requires more than the appellant committing serious criminal offending in the past. When I say this I make clear that I in no way minimise that offending. The respondent must establish that the appellant's personal conduct presently represents a genuine, present and sufficiently serious threat affecting one of those fundamental interests.
118. The seriousness of the offence forms an important part of that assessment, but it is not determinative. The assessment is a forward-looking one directed towards present and future risk.
119. I have therefore considered whether the respondent has established that the attitudes and behaviours which led to the commission of the offence continue to persist.
120. For the reasons already set out, I have found that there has been a material change in the appellant's presentation since the preparation of the OASys report. I accept that he now acknowledges that what occurred was rape. I accept that he understands the impact of his conduct upon the victim. I accept that he takes responsibility for his actions and that this development has been gradual rather than opportunistic.
121. I have also taken into account his behaviour whilst in custody, the absence of adjudications, the low assessment of serious recidivism and my finding that the principal concerns identified by the author of the OASys report particularly the appellant's refusal to accept responsibility and lack of victim empathy. As I have already found those views on the part of the appellant have materially changed.
122. Standing back and considering the evidence in the round, I accept that the appellant's past conduct did affect fundamental interests of society. However, I am not satisfied that the respondent has established that his personal conduct presently represents a genuine, present and sufficiently serious threat affecting those interests.
123. Accordingly, even if I am wrong in finding that the appellant benefits from imperative grounds protection, I would nevertheless allow the appeal because the respondent has not established that the respondent has established that there genuine, present and sufficiently serious threat
(c) proportionality;
124. In light of my finding that the respondent has failed to establish imperative grounds of public security, the appeal falls to be allowed. Strictly speaking, it is therefore unnecessary for me to conduct a separate proportionality assessment as these factors are determinative of the proportionality assessment. Had it been necessary to undertake a separate proportionality assessment, in light of my findings, I would have found deportation disproportionate having regard to the appellant's lengthy residence, extensive integration, social and cultural ties to the United Kingdom, family support and limited ties to Italy.
(d)Article 8
125. In light of my findings and conclusions under the 2016 Regulations, it is not necessary for me to determine the appeal under Article 8 however my findings under the 2016 Regulations are dispositive of this issue.
Notice of Decision
The appellant’s appeal is allowed under the Immigration (European Economic Area) Regulations 2016.
The appellant’s appeal is allowed on human rights grounds.

RA Pickering
Deputy Judge of the Upper Tribunal
Immigration and Asylum Chamber
23 July 2026