Tribunal decisions

The decision

IN THE UPPER TRIBUNAL
IMMIGRATION AND ASYLUM CHAMBER
Case No: UI-2025-001141

First-tier Tribunal No: HU/61577/2023
LH/06709/2024

THE IMMIGRATION ACTS

Decision & Reasons Issued:

On 6th of June 2025

Before

UPPER TRIBUNAL JUDGE BLUNDELL

Between

SECRETARY OF STATE FOR THE HOME DEPARTMENT
Appellant
and

EVRARD FEUTCHING SEIDOU
Respondent

Representation:
For the Appellant: Mr Nappey, Senior Presenting Officer
For the Respondent: Ms Ferguson, instructed by Freemans Solicitors

Heard at Field House on 7 May 2025

DECISION AND REASONS
1. The Secretary of State appeals with the permission of First-tier Tribunal Judge Wilson against the decision of First-tier Tribunal Judge S Taylor. By his decision of 17 November 2024, Judge Taylor (“the judge”) allowed Mr Seidou’s appeal against the Secretary of State’s refusal of his human rights claim.
2. To avoid confusion, I will refer to the parties as they were before the First-tier Tribunal (“FtT”): Mr Seidou as the appellant and the Secretary of State as the respondent.
Background
3. The appellant is a national of Cameroon who was born on 18 May 1996. He entered the United Kingdom in 2005, as a child. He claimed asylum in 2010. His claim was refused but he was granted discretionary leave to remain as a minor. He sought further leave in 2013. That application was refused but an appeal was allowed on Article 8 ECHR grounds in 2015 and he was granted further discretionary leave the following year. He sought indefinite leave in September 2019 but the application was invalid. On 6 April 2021, he made a further such application.
4. The appellant’s application was refused on 15 September 2023. The respondent refused that application because of the appellant’s criminal convictions in the United Kingdom. She did not consider him to be entitled to limited leave to remain on account of his family life and she did not consider that his removal would be unlawful under section 6 of the Human Rights Act 1998.
The Appeal to the First-tier Tribunal
5. The appellant appealed to the FtT. His appeal was heard by the judge, sitting at Taylor House on 11 November 2024. The appellant was represented by Ms Ferguson of counsel, as he was before me. The respondent was represented by a Presenting Officer (not Mr Nappey).
6. In his reserved decision, the judge set out the background and the evidence adduced by the parties before turning to his analysis from [15]. At the outset, the judge noted that the respondent’s decision was predicated on a conclusion that the appellant was a persistent offender, and that the appellant had eight convictions, seven of which had taken place after 2019.
7. The judge considered it to be “astonishing” that the respondent had not produced a printout from the Police National Computer (“PNC”) and that this omission had not been addressed at the stage that the respondent undertook a review of the decision. He noted that the respondent had been ‘saved to a certain extent’ by the fact that the appellant’s representatives had submitted an OASys report which listed the appellant’s antecedents. In the final sentence of [16], the judge observed that:
Without a PNC, there is no case against the appellant on the grounds of being a persistent offender, and it is indeed most unusual for the respondent to have to rely on the appellant’s solicitors to establish the case.
8. The judge continued on this theme at [17]. He observed that the OASys report did not provide the details of the offences. It did not record an escalating pattern of offences and it recommended that the appellant should receive a community order for the offence in connection with which it was written. The judge recorded that the appellant had told him that none of the offences in the OASys report resulted in a custodial sentence and that “in the absence of evidence from the respondent, I cannot find otherwise.”
9. The judge recorded at [18] that the OASys report was written in May 2023 and that the appellant had volunteered that he had been convicted of two further offences. The judge understood the appellant to have said that he had been sentenced to 32 weeks and 30 weeks imprisonment for those offences, but that he had been released after approximately six weeks. Having recalled that evidence, the judge made this observation at the end of [18]:
These sentences were after the date of decision, they were not relied on by the respondent, who provided no evidence of them.
10. The judge then reviewed the appellant’s antecedents and concluded that he was not a persistent offender for the following reasons, at [19]:
In terms of persistence, the October 2015 offence resulted in a warning, and the November 2015 offence was a driving offence which was followed by a gap of four years. There were four offences in 2019, for which the respondent has not provided evidence of sentencing, one offence is the driving offence of driving without a licence, another offence was failure to comply with a community order, about which there is no information. The narrative suggests that the amount of MDMA involved was small, and the battery offence involved scuffle with security guard which did not amount to actual bodily harm. The offences since 2020 are driving offences, apart from on [sic] drug offence of possession cannabis, for which there is no information. The later two offences have not been relied on. There is not [sic] suggestion of a pattern [sic] offending or an escalation in his behaviour. On the submitted information, which I emphasise did not come from the respondent, I cannot be satisfied that the appellant is a persistent offender.
11. The judge went on to consider the claim for discretionary leave on Article 8 ECHR grounds. He noted that the appellant had initially claimed to have children but that “he admitted in written and oral evidence that he did not have children.” The judge was “less than convinced” by the appellant’s explanation that there had been a misunderstanding. Nor was the judge satisfied that the appellant was in a relationship with his claimed partner. The judge was also dissatisfied about other aspects of the appellant’s evidence. He was concerned about the appellant’s account of his professional life and he did not accept that the appellant had given reliable evidence about having obtained a Master’s degree. Notwithstanding those concerns, the judge allowed the appeal on Article 8 ECHR grounds for the following reasons:
[23] Irrespective of the family life, which I have not found, and the less than credible evidence of his degree, the main reason for the refusal was persistent offending. On the submitted evidence I am not satisfied that the appellant is a persistent offender for the purpose of the relevant legislation. With regard to private life, the appellant is unable to meet the 20 years requirement under paragraph 276ADE, but the application was refused on the basis of suitability so the other factors under the paragraph 276ADE were not formally considered. The respondent stated that the appellant would not face very significant obstacles to integration on return. I find that the respondent has failed to take into account that the appellant was aged nine when he arrived in the UK, he has never lived in Cameroon as an adult or even as a teenager. The respondent suggested that the appellant had settled in the Uk and could settle on return, but this disregards that the appellant was brought to the UK as a child by his step mother/. The appellant entered the UK at the age of nine, and has remained for nineteen years, of which he had leave for approximately ten years.
[24] Given that the persistent offending has not been demonstrated, the age at which the appellant entered the UK and the amount of time he has been in the UK, I consider that the balancing exercise weighs in favour of the appellant being granted further leave.
The Appeal to the Upper Tribunal
12. The respondent sought permission to appeal. There is said to be a single ground of appeal, which is “Failing to give reasons or any adequate reasons for findings on material matters & Making perverse or irrational findings on a matter or matters that were material to the outcome.” It is to be hoped that the drafting of grounds of appeal (on both sides) will be rather more focused in light of what has now been said in Rai and DAM (grounds of appeal – limited grant of permission) [2025] UKUT 150 (IAC).
13. A good deal of the wordcount in the grounds of appeal was occupied with a belated and impermissible attempt to provide full details of the appellant’s antecedents. Aside from that attempt, however, the grounds contain the following points:
(i) The judge failed to provide adequate reasons for concluding, despite the appellant’s offending, that he was not a persistent offender;
(ii) The judge left material matters out of account by ignoring some of the appellant’s offences and/or downplaying the offending because the PNC had not been provided;
(iii) The judge failed to apply the guidance in Chege ("is a persistent offender") [2016] UKUT 187 (IAC); [2016] Imm AR 833; and
(iv) The judge’s conclusion that the appellant is not a persistent offender was irrational.
14. Judge Wilson considered these grounds to be arguable.
15. A rule 24 response which was settled by Ms Ferguson was filed with the Upper Tribunal on 4 April 2025. Mr Nappey did not receive it until the morning of the hearing but he confirmed that it caused him no difficulty.
Submissions
16. Mr Nappey submitted that the judge should not have treated the appellant’s convictions as contested when they were not. The convictions were set out in the evidence before the FtT. They were to be found in the refusal letter and the review together with the OASys report and the appellant’s oral evidence of the further offences. The appellant had accepted in his witness statement that his criminality was as set out, and the Appeal Skeleton Argument before the FtT did not raise any questions in that regard. The judge had nevertheless gone to great lengths to criticise the respondent for her failure to provide the PNC. Mr Nappey submitted that the judge’s insistence on having the PNC was wrong.
17. I asked Mr Nappey whether he was able to clarify what was meant by the judge at [19] of his decision when he had stated that the respondent had not relied on the appellant’s most recent convictions. Mr Nappey thought that the judge meant that those convictions had not been recorded in the refusal letter or any other document. He submitted that it had been wrong as a matter of law for the judge to discount those offences because they post-dated the respondent’s decision. Mr Nappey also submitted that the judge had failed to apply the guidance in Chege. The judge had in any event erred in his evaluation of whether the offending had escalated, since it was only the later offences which had attracted sentences of immediate custody. Even if the judge had Chege in mind, it was clear that he had not come to rational conclusions on the questions posed by that decision. In considering whether there was a pattern of offending, the judge had also failed to consider what was said in the OASys report on that subject.
18. Ms Ferguson relied on her concise rule 24 response. She initially submitted that it was not even clear that the judge should have considered whether the appellant was a persistent offender, although she then accepted that the provision was relevant. The judge had been critical of the respondent for failing to provide the PNC but it was wrong to suggest that he had ignored or disputed convictions for that reason. The refusal letter and the review were singularly unhelpful in that they failed to set out the appellant’s criminality with any clarity.
19. I asked Ms Ferguson what the judge had meant by stating that the later convictions had not been relied upon by the respondent. She submitted that all of the convictions had been taken into account by the judge. It had been open to him to conclude that there had been no escalation in the offending, and that there was no pattern. When pressed on the judge’s approach to the OASys report, however, Ms Ferguson accepted that the judge had erred in law in failing to consider what was said in that report about the pattern of the appellant’s offending. She submitted that any such error was immaterial, however, because it was quite clear that the appellant was not a person with a particular disregard for the law. Taking into account the appellant’s mental health problems and the reasons he gave for committing the offences, it was rational and proper for the judge to conclude that the appellant was not a persistent offender.
20. I asked Ms Ferguson whether she accepted that the appellant’s convictions and sentences were as set out in the respondent’s grounds of appeal. She had not taken instructions on that question and I permitted her to do so. On resuming, she submitted that there was in fact an error in the grounds, in that the conviction which was said to be in March 2024 was actually in March 2023. The second additional conviction recorded by the judge was correct, however, and the judge had also correctly understood that the appellant had been released after only six weeks.
21. In reply, Mr Nappey submitted that the appellant had evidently committed offences in 2024. The Immigration Rules mandated refusal of leave for a persistent offender. The OASys report referred to an established pattern of offending and that was a matter which the judge should have taken into account. The assessment undertaken by the FtT was not a holistic one and the result was not a foregone conclusion; the appellant was a man with a long history of offending who could quite properly be found to be a persistent offender.
Analysis
22. It is clear that the First-tier Tribunal erred in law in a number of ways. In many respects, it is equally clear to me that these errors were unsurprising because the judge did not receive the assistance from the parties which he was entitled to expect. It was nearly twenty years ago that Lady Hale said that judges in the IAC administer a complex area of the law in challenging circumstances. Those words ring even truer now than they did in 2007 because the Immigration Rules are now so poorly drafted, as was recently made clear by the Court of Appeal in Mustaj v SSHD [2025] EWCA Civ 663.
23. Those providing representation in the IAC should bring binding authority on the provisions of the Immigration Rules to the attention of the judge. The judges of the chamber are specialist judges but they cannot be expected to recall every single decided case on every single provision of the Immigration Rules. Where, as here, the Immigration Rules contain a term of art which has been considered in binding authority, a judge is entitled to have those authorities drawn to his or her attention.
24. The term ‘persistent offender’ has appeared in the Immigration Rules, and then in statute, for some years. The meaning of that term was considered by the Upper Tribunal in Chege in 2016. The decision has a neutral citation. It was also reported in the Immigration Appeal Reports. It is a decision which was made by Andrews J and UTJ Southern (as they were then). Chege was subsequently approved by the Court of Appeal in SC (Zimbabwe) v SSHD [2018] EWCA Civ 929; [2018] 1 WLR 4474. It was also cited with approval in Binbuga v SSHD [2019] EWCA Civ 551; [2019] Imm AR 1026 and R (Mahmood) v UTIAC & SSHD [2020] EWCA Civ 717; [2020] QB 1113.
25. Not one of those decisions was cited by the respondent in her refusal letter of 15 September 2023 or in her review of 11 July 2024. In her review, the respondent submitted that a persistent offender “is a repeat offender who shows a pattern of offending over a period of time”. At best, that was an incomplete summary of the guidance in Chege. I fear that it was rather worse than that, however. It is clear from [54] of Chege that a pattern of offending is not required, and that persistence “may equally be shown by the fact that [the offender] has committed a wide variety of different offences over a period of time.”
26. The judge was therefore provided with an inaccurate account of the law by the Secretary of State, and it was to be hoped that the Appeal Skeleton Argument which was settled on 19 April 2024 drew the judge’s attention to the relevant authorities. It did not. There was no reference to Chege or to any of the other authorities which I have mentioned above. It was submitted at [6] and [7] of that skeleton argument that the appellant had not shown a ‘persistent disregard for the law’, which only served to compound the problem caused by the respondent’s pleadings. The test in the Immigration Rules is not whether an individual shows a persistent disregard for the law; it is whether they are “a persistent offender who shows a particular disregard for the law.”
27. I asked Ms Ferguson whether either of the advocates before the FtT had mentioned Chege or any other decided case on this subject. She did not think that any authority had been cited. I consider that to be wholly unsatisfactory. The judge was left either to undertake his own research or to do the best he could with the unhelpful submissions provided by the parties.
28. The judge made no reference to Chege or any other relevant authorities in his decision. Of course, it was not necessary for the judge to cite any authority. What was necessary was for him to apply the law correctly. If it could be seen from his decision that he had done so without making any express reference to decided cases, then there could be no proper criticism of his decision. It is in any event to be assumed that specialist judges of the FtT(IAC) know the law that they are to apply.
29. I had originally thought that the judge must have been aware of Chege, since he made reference to there being no pattern of offending or an escalation in the appellant’s behaviour, both of which are relevant matters considered in Chege. But the judge’s analysis, and [19] of that analysis in particular, sit uneasily with Chege. As I have already mentioned, the authorities do not require there to have been a pattern of offending or an escalation in the offending. As the Upper Tribunal stated in Chege, a persistent offender is someone who keeps breaking the law, yet there is nothing in the judge’s decision which suggests that he was aware of that guiding principle.
30. I therefore accept that the judge did not apply the law correctly in deciding that the appellant was not a persistent offender. He did not have Chege in mind when he conducted that assessment, and he did not demonstrably apply the principles from that case or any of those which followed. He consequently misdirected himself in law, and failed to provide adequate reasons for his finding that the appellant was not a persistent offender. As I have endeavoured to explain, however, responsibility for those errors does not lie with the judge but with those who failed to give him the assistance he required.
31. I also consider the judge to have fallen into error in his consideration of the appellant’s antecedents.
32. Firstly, it is not at all clear why the judge stated at [18] and [19] that the offences which post-dated the respondent’s decision were “not relied on by the respondent”. The first reference perhaps suggests that the judge was making nothing more than a point on the chronology; that the offences post-dated the respondent’s decision and had not been mentioned within it. But the antepenultimate sentence of [19] (“The later two offences have not been relied on.”) suggests that the judge excluded those offences from his assessment of whether the appellant was a persistent offender. If that was the judge’s approach, it was clearly in error. It was for him to decide on the facts as they stood at the date of decision whether the appellant was a persistent offender; he was not conducting a judicial review of the respondent’s decision on the evidence which was before her at that time.
33. Secondly, the judge concluded in [19] that there was “no suggestion” of a pattern of offending or an escalation in the appellant’s behaviour. He overlooked material matters in reaching both conclusions.
34. The OASys report which was before him made reference to there being “an established pattern of offending where violence was not usually a feature.” That was an expert assessment undertaken by the Probation Service and the judge was required to engage with it if he was to come to the contrary conclusion.
35. The OASys report was written in May 2023. The appellant told the judge that he had been sentenced to a custodial sentence for the offence considered in that report, and that he had then been sentenced to a further custodial sentence in May 2024: [11] of the FtT’s decision refers. This was the first time that the appellant had been given immediate custodial sentences. Given that the seriousness of the offending is usually to be gauged by the sentence imposed (SSHD v HA (Iraq) [2022] UKSC 22; [2022] 1 WLR 3784 refers), the judge was wrong to state that there had been no escalation in the appellant’s offending. Whilst the underlying offending seemingly remained the same (driving whilst disqualified), the offending was more serious because the appellant chose to disobey the Crown Court’s previous orders, and that was reflected in the sentences imposed.
36. It is for those reasons that I conclude that the judge erred in law. I was not persuaded that the judge fell into error by treating the appellant’s convictions as contested because of the absence of a PNC report. The judge simply did not proceed on that basis. He was critical of the respondent for failing to produce the PNC report, and rightly so, but he did the best he could with the information that he had been given, including the OASys report. He certainly fell into other errors in his assessment of this case, but he did not err by rejecting the respondent’s case out of hand because she had not provided the evidence which the judge would ordinarily have expected.
37. Nor do I accept that the only rational conclusion to which the judge could have come was that the appellant was a persistent offender with a particular disregard for the law. The appellant has certainly committed a good number of offences within a relatively short space of time, and the sentences for those offences have reflected an increase in seriousness. He is most aptly described as a person who keeps on breaking the law but the assessment required by Chege is a more nuanced and holistic one. It would in my judgment be open to a judge who properly directed themself to the law and the facts to conclude that the appellant was or was not a person who fell to be refused leave to remain on that basis.
38. I also make clear that I am unable to accept Ms Ferguson’s rather ambitious submission that the only rational conclusion which the judge could have reached was that the appellant was not a person with a particular disregard for the law because his offences were caused by his mental health problems. Whilst I note that the appellant was seriously attacked in recent years and that he was undergoing therapy in 2023, the evidence simply does not go so far as to support that submission. The appellant might be a person with some mental health problems but there is nothing before me which suggests that he is overwrought by those problems to the extent that his repeat offending does not demonstrate a lack of regard for the law of the United Kingdom.
39. In the circumstances, I conclude that the decision of the First-tier Tribunal was vitiated by errors of law and that it cannot stand. The entire exercise will have to be undertaken afresh, having regard to the legal principles to which I have referred and to the totality of the appellant’s offending. Having regard to the scale of that exercise, and having reminded myself of what was said in AEB, I conclude that the proper forum for reconsideration is the First-tier Tribunal. The appeal will therefore be remitted to be heard afresh by a different judge of the FtT.
Notice of Decision
The decision of the First-tier Tribunal involved the making of errors on points of law and cannot stand. That decision is set aside accordingly. The appeal is remitted to be heard de novo by another judge of that tribunal.

Mark Blundell

Judge of the Upper Tribunal
Immigration and Asylum Chamber

27 May 2025