UI-2025-001372

• Status of case: Unreported
• Hearing date: 8 Sep 2025
• Promulgation date: 8 Oct 2025
• Publication date: 23 Oct 2025
• Last updated on: 23 Oct 2025

The decision

IN THE UPPER TRIBUNAL
IMMIGRATION AND ASYLUM CHAMBER
Case No: UI-2025-001372

First-tier Tribunal No: EU/52251/2023
LE/03014/2024

THE IMMIGRATION ACTS

Decision & Reasons Issued:

On 8th of October 2025

Before

UPPER TRIBUNAL JUDGE KHAN

Between

ARLIND NABOLLI
(NO ANONYMITY ORDER MADE)
Appellant
and

SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: Mr T Bahja, Counsel instructed by Duncan Lewis Solicitors
For the Respondent: Ms Arifa Ahmed, Senior Home Office Presenting Officer

Heard at Field House on 08 September 2025


DECISION AND REASONS
Introduction
1. This decision should be read in conjunction with the decision issued on 01 August 2025 in which the Upper Tribunal (‘UT’) found that the First-tier Tribunal (‘FtT’) had materially erred in law. The FtT decision dated 21 January 2025 was set aside with preserved findings and the appellant’s appeal was adjourned to be re-heard by the UT.
Factual Background
2. The following is a brief non-contentious summary of the background which sets the context for this appeal.
3. The appellant who is currently aged 29, is a non-EEA national of Albania married to Elena Litsi, an EEA national of Greek descent. Together, they have two children born in the UK, aged 4 years, and 21 months, respectively. The second child is a British born citizen.
4. The appellant entered the UK on 01 May 2018 and was granted a 6-month EEA Family permit to join his EEA partner who was exercising Treaty rights. On 18 December 2018, he was issued with a residence card as a non-EEA national family member of an EEA national valid until 18 December 2023.
5. On 23 November 2020, the appellant was convicted of road traffic offences and on 07 January 2021 he was convicted of offences relating to both Class A and B drugs with intent to supply committed on 21 November 2020. He was sentenced to 33 months imprisonment reduced from 44 months imprisonment on account of his guilty plea.
6. On 08 March 2021, the appellant was served with a Notice of Liability to deportation on the grounds that he was a foreign national who had committed a serious offence. He made representations that he was entitled to resist deportation under regulation 23(6)(b) of the Immigration (European Economic Area) Regulations 2016 (‘the 2016 EEA Regulations’) and/or on human rights grounds.
7. On 24 January 2022, the respondent signed a deportation order against the appellant on the grounds that since he had been convicted and sentenced to imprisonment of at least 12 months he was therefore subject to automatic deportation pursuant to Section 32(5) of the UK Border Act 2007 (‘the 2007 Act’).
8. On 25 January 2022, the respondent refused the appellant’s human rights claim and he was given an in-country appeal. At that time, the respondent appears to have taken the view that the appellant was not entitled to appeal under the 2016 EEA Regulations. The appellant appealed the refusal of the human rights decision to the FtT.
9. On 08 April 2022, the appellant was released from prison. On 18 May 2022, he applied for pre-settled status as a family member of an EEA national. On 06 March 2023, the respondent refused the application for pre-settled status pursuant to the suitability criteria in Paragraph EU15 of Appendix EU of the Immigration Rules. The appellant was given a right of appeal against the decision under the 2016 EEA Regulations.
10. On 20 October 2022, the FtT dismissed the appellant’s appeal on human rights grounds. FtT Judge Brannan observed that the appellant’s leave to remain application under the EU Settlement Scheme (‘EUSS’) was still undecided by the time of the hearing. He offered the respondent time to make her decision before he made his decision but received no response. The FtT Judge concluded that the 2016 EEA Regulations did not apply to the appellant as the respondent had not made a decision under the 2016 EEA Regulations [37]-[38] and therefore proceeded on the deportation grounds that were open to him.
11. On 06 March 2023, the respondent refused the appellant’s EUSS application on the grounds of suitability. This was because he was subject to a deportation order and therefore could not meet the requirements of the EUSS Rules. Importantly, the respondent concluded that the appellant represented a genuine, present, and sufficiently serious threat to the public and that his deportation was justified on grounds of public policy and proportionate in light of the threat he posed.
12. The appellant exercised his right of appeal pursuant to regulation 6(1) of the Immigration (Citizens’ Rights Appeals)(EU Exit) Regulations 2020. The appeal came before the FtT. The agreed issue for determination was stated as follows: ‘Whether to refuse pre-settled status and deport the appellant on public policy grounds is in breach of the appellant’s rights under Article 20(1) of the Withdrawal Agreement?’
13. In a nutshell, the appellant’s argument before the FtT was that his offending was a ‘one- off’ so he did not pose a genuine, present, and sufficiently serious threat to one of the fundamental interests of society such that deportation was necessary or proportionate under EU law.
14. On 21 January 2025, FtT Judge Lawrence dismissed the appellant’s appeal on EU grounds. On 8 May 2025, permission was granted to appeal to the UT. In granting permission, UTJ Perkins stated ‘It is arguable that the judge erred in considering ‘present risk.’
15. On 1 August 2025, the UT found an error of law in the decision of FtT Judge Lawrence and set aside the decision (‘UT error of law decision’).
16. The chronology of this appeal and the detailed outcomes of the previous hearings are set out in the UT error of law decision and need no repetition.
The remaking hearing
17. This matter now comes before the UT on appeal. The respondent determined that the appellant represented a genuine, present and sufficiently serious threat to the public such that his deportation was justified on grounds of public policy and proportionate in light of the threat he posed, and was not in breach of his rights under Article 20(1) of the Withdrawal Agreement (‘WA’).
18. The parties reaffirmed their agreement that the case should be remade in the UT and that the sole issue for determination turned on whether the appellant’s conduct constituted a ‘present threat’ to the public in the context of regulation 27(5)(c) of the 2016 EEA Regulations.
19. The parties agreed that in order to determine that issue the UT would have to consider the appeal in accordance with the principles of law set out in BF (Portugal) v Secretary of State for the Home Department [2009] EWA Civ 923. In this context, it was accepted by the respondent that this was not a case that fell within the Bouchereau exception (R v Bouchereau (case 30-77) [1978] QB 732 (ECJ).
20. A series of bundles were submitted by the appellant containing, inter alia, the core documents in the appeal, including the appellant’s and respondent’s bundles before the FtT as well as up to date evidence including a further witness statement from the appellant and his wife. Also submitted on behalf of the appellant was a skeleton argument.
21. The respondent also submitted a skeleton argument which largely mirrored the arguments made below and those set out in the decision letter.
22. The hearing was attended by representatives for both parties as above. Both representatives made submissions, and the conclusions below reflect those arguments and submissions where necessary.
23. As a preliminary matter, the respondent objected to the appellant’s new evidence included in Part B of the composite bundle at pages 19-68. This was on the basis that the further evidence had not been accompanied with an application pursuant to Rule 15(2A) of the Tribunal Procedure (Upper Tribunal) Rules 2008.
24. Mr Bahja explained that the new evidence had been included in accordance with paragraph 2 of the further directions made by the UT in its error of law decision. This provided that the parties ‘shall file and serve any updating evidence on which they intend to rely no less than 21 days prior to the re-hearing‘. The appellant had fully complied with the direction and no objection regarding admissibility had been taken by the respondent until the hearing, despite having been served with the new evidence in good time.
25. In light of the appellant’s submissions, the respondent proposed admitting the new evidence but leaving the question of weight to the UT to determine following submissions from the parties. This approach was accepted by appellant and the UT as a fair way forward in order to avoid unnecessary argument and delay given the limited time allocated for the remaking.
26. The UT heard oral evidence from the appellant and his wife. An Albanian interpreter was present to assist with the cross-examination of the appellant’s wife. I ensured that they understood each other before the cross-examination commenced which they confirmed to the Tribunal.
27. At the end of the hearing, I reserved my decision and give my reasons below.
Preserved Findings
28. The UT’s error of law decision at [63] expressly preserved the FtT Judge’s evaluation of the seriousness of the offence and the factors taken into consideration. At the hearing, the parties further agreed to preserve the FtT findings at paragraph [12]–[20] and [22]-[31] of the decision.
The Relevant Legal framework
29. The relevant parts of EU15 of Appendix EU (in force at the date of the decision giving rise to the appeal before the judge) say:
“(1) An application made under this Appendix will be refused on grounds of suitability where any of the following apply at the date of decision: (a) The applicant is subject to a deportation order or to a decision to make a deportation order; or …”
30. For the purposes of Appendix EU, ‘deportation order’ is defined in Annex 1 and the relevant parts read:
“as the case may be: ….

(b) an order made under section 5(1) of the Immigration Act 1971 by virtue of section 3(5) or section 3(6) of that Act in respect of:
(i) ….; or
(ii) conduct committed by the person before the specified date, where the Secretary of State has decided that the deportation order is justified on the grounds of public policy, public security or public health in accordance with regulation 27 of the EEA Regulations, irrespective of whether the EEA Regulations apply to the person (except that in regulation 27 for “with a right of permanent residence under regulation 15” and “has a right of permanent residence under regulation 15” read “who, but for the making of the deportation order, meets the requirements of paragraph EU11, EU11A or EU12 of Appendix EU to the Immigration Rules”; and for “an EEA decision” read “a deportation decision”); or
(c) …..”
31. The parts of Regulation 27 of the EEA Regulations relevant to this appeal say:
“(1) In this regulation, a “relevant decision” means an EEA decision taken on the grounds of public policy, public security, or public health.

(2) A relevant decision may not be taken to serve economic ends.
……..

(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.

(6) 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.

(8) A court or tribunal considering whether the requirements of this regulation are met must (in particular) have regard to the considerations contained in Schedule 1 (considerations of public policy, public security, and the fundamental interests of society etc.).
32. Schedule 1 of the EEA Regulations says, in so far as is relevant :
“3. Where an EEA national or the family member of an EEA national has received a custodial sentence, or is a persistent offender, the longer the sentence, or the more numerous the convictions, the greater the likelihood that the individual’s continued presence in the United Kingdom represents a genuine, present and sufficiently serious threat affecting of the fundamental interests of society.

4. Little weight is to be attached to the integration of an EEA national or the family member of an EEA national within the United Kingdom if the alleged integrating links were formed at or around the same time as—

(a) the commission of a criminal offence;
(b) an act otherwise affecting the fundamental interests of society;
(c) the EEA national or family member of an EEA national was in custody.

5. The removal from the United Kingdom of an EEA national or the family member of an EEA national who is able to provide substantive evidence of not demonstrating a threat (for example, through demonstrating that the EEA national or the family member of an EEA national has successfully reformed or rehabilitated) is less likely to be proportionate. …”
33. The fundamental interests of society:
(7) For the purposes of these Regulations, the fundamental interests of society in the United Kingdom include—

(a) preventing unlawful immigration and abuse of the immigration laws, and maintaining the integrity and effectiveness of the immigration control system (including under these Regulations) and of the Common Travel Area;
(b) maintaining public order;
(c) preventing social harm;
…
(f) excluding or removing an EEA national or family member of an EEA national with a conviction (including where the conduct of that person is likely to cause, or has in fact caused, public offence) and maintaining public confidence in the ability of the relevant authorities to take such action;
(g) tackling offences likely to cause harm to society where an immediate or direct victim may be difficult to identify but where there is wider societal harm (such as offences related to the misuse of drugs or crime with a cross-border dimension as mentioned in Article 83(1) of the Treaty on the Functioning of the European Union);
(h) combating the effects of persistent offending (particularly in relation to offences, which if taken in isolation, may otherwise be unlikely to meet the requirements of regulation 27);
(i) protecting the rights and freedoms of others, particularly from exploitation and trafficking;
(j) protecting the public; …
Discussion and resolution
34. The appellant’s case can be explained quite simply. He claims that his conduct does not constitute a genuine, present, and sufficiently serious threat affecting the fundamental interests of society within the meaning of regulation 27(5)(c) of the 2016 EEA Regulations. Further or alternatively, he claims that his deportation from the UK would be disproportionate as a matter of EU law given the length of residence, strength of connections he has with the UK and the fact that his offending behaviour was a one-off offence. He states that he has learnt his lesson and that he recognises the impact his offending behaviour has on his victims and has not reoffended since his release from prison in early April 2022.
35. In determining the issue of whether the appellant’s conduct constitutes a genuine, present and sufficiently serious threat affecting the fundamental interests of society, I am mindful of the four stages to be followed by a Tribunal when applying the 2016 EEA Regulations set out by Sullivan LJ in the Court of Appeal in BF (Portugal). The four stages were recently referred to as the ‘established principles’ in SSHD v Okafor [2024] EWCA Civ 23 at [35].
36. The four stages to be followed are:
(i) What was the relevant personal conduct of the individual?
(ii) Whether that conduct represents a genuine, present, and sufficiently serious threat? and if so,
(iii) Whether that threat affects one of the fundamental interests of society? and if so,
(iv) Whether the removal of the individual would be disproportionate in all the circumstances.
Stage 1: What was the relevant personal conduct of the individual?
37. The first stage of the BF (Portugal) test is concerned with the appellant’s personal conduct which led to the respondent concluding that his deportation was justified on public policy grounds. In considering this issue, I am entitled to take account of the appellant’s personal conduct to the date of this hearing.
38. The brief facts which are not disputed are that on 21 November 2020, the appellant was stopped by the police while driving his car, a Vauxhall Meriva Active, in Maidstone. When the car was pulled over and searched the appellant was found with a plastic pot in his lap. The pot contained a number of bags containing a white substance. In his coat pocket, a further plastic container was located containing a number of ‘finger wraps.’ In total, the appellant was found in possession of 10 grams of cocaine and 30 grams of Class B drugs (cannabis), together with some cash and details of two money transfers to two people in Albania (1 @ £132 and 1 @ £610).
39. On 23 November 2020, the appellant was convicted of road traffic offences relating to driving without a valid licence or valid insurance.
40. On 7 January 2021, the appellant was convicted based on a guilty plea in the Crown Court at Maidstone of two counts relating to Class A and B drugs with intent to supply. He was legally represented. The sentencing Judge stated that both offences were serious and mentioned the prosecution’s work on identifying the movements of the appellant’s car in Maidstone which led him to comment ‘that this was not an isolated incident and that you were in the habit of coming to Maidstone to deal in drugs.’
41. The Judge observed that the ‘quantities of drugs are not of the greatest’ and that there were ‘not any real aggravating features,’ but rather a number of mitigating features that he could take into account when looking at what would be the appropriate sentence. These included the appellant’s young age, his previous good character and genuine remorse, together with full co-operation in the investigation with the police. The Judge identified a starting point of 54 months to one of 44 months imprisonment before giving credit of 25% for a guilty plea, reducing the sentence to one of 33 months imprisonment on count 1 and 8 months on count 2 to run concurrently to count 1.
42. In considering the seriousness of the offence, I recall the preserved findings at [12]-[20] in the FtT decision which referenced the decision in Gadinala V SSHD [2024] EWCA Civ 40. That case held at [43(ii) & (iii)] that:
‘if the Tribunal has the judge’s sentencing remarks to hand, the sentence will in general remain the touchstone of seriousness, except where it is clear that factors unrelated to the seriousness of the offence have influenced the sentence arrived at and how they have done so. An example of a factor unrelated to the seriousness of the offence is a guilty plea which has served to reduce the sentence. Assuming the amount of credit for a guilty plea is clear from the sentencing remarks, that plea can and should be taken into account by the immigration tribunal in assessing seriousness.’
43. In applying Gadinala, the FtT Judge clearly had regard to the 25% reduction in imprisonment time on account of credit for the guilty plea, together with the various mitigating factors. They concluded that such factors in the round were unrelated to the seriousness of the offences, and therefore the sentence of imprisonment for 33 months did not fully reflect the level of seriousness [12]. The FtT Judge further observed at [13] that in identifying the starting point the sentencing Judge considered the offences were very serious and that the appellant had played a significant role, noting that the evidence on the movements of the appellant’s vehicle indicated that the incident was not an isolated one, and that he was in the habit of travelling to the location to deal in drugs.
44. The FtT Judge was invited to depart from the sentencing Judge’s description of the offence as not being an isolated offence. That request was refused on the basis that the appellant had not provided any evidence to show it was an isolated incident; and, further, the claim that the appellant had income from employment and therefore did not need to earn money from drug dealing did not necessarily indicate an absence of a desire for more money which could be used to pay for drugs for personal consumption [17].
45. In the UT’s error of law decision at [47] & [63] it was accepted that the approach taken by the FtT Judge to the issue of seriousness of the offence could not be faulted. I agree with those findings.
46. Mr Bahja accepts that this was a serious offence and further that the supply of drugs is a type of offending that falls within the public policy or security grounds and is capable of affecting one of the fundamental interests of society within the meaning of Schedule 1 to the 2016 EEA Regulations. That said, however, Mr Bahja submits that the threshold of conduct which would justify the deportation of the appellant from the UK on grounds of public policy have not been met for the several reasons which are set out in his skeleton argument at [28]-[35] and mentioned below.
47. In brief, the stated reasons in the appellant’s skeleton for why the threshold has not been met are as follows:
(i) the respondent accepts that the Bouchereau exception does not apply;
(ii) the appellant was a person of previous good character (until 21 November 2020);
(iii) before the commission of the offence he was a heavy drug user and was tested positive for cocaine usage on the day that he was arrested. This means that he was not only a perpetrator of crime but is also a victim of drugs;
(iv) in his written statement to the police dated 21 November 2020, the appellant stated that he was working 6 days a week on a building site earning £100 per day which he used to fund his drug addition. Even though this evidence was not before the sentencing judge, it would be unfair to say that the fact of employment was not before the sentencing Judge who could have made enquiries;
(v) contrary to the sentencing Judge’s remarks that the appellant was in the ‘habit of dealing in drugs,’ this was in fact a one-off offence which is supported by the further evidence (in Part B of the composite bundle);
(vi) the appellant pleaded guilty at the earliest opportunity;
(vii) the sentencing Judge noted there were no aggravating factors and it was on that basis that he reduced the starting point sentence of 54 months;
(viii) the appellant has now obtained a driving licence issued on 15 November 2022 which is evidence that he is law abiding and earning his living as a delivery driver.
(ix) the appellant and his wife are both in part-time employment to ensure that their care responsibilities towards their two young children are met;
48. In support of the argument that the appellant’s offending was just a one-off and he was not as the sentencing Judge stated in the ‘habit of dealing in drugs’, Mr Bahja seeks to rely on the further evidence in Part B of the composite bundle admitted by the UT, which was not before the FtT.
49. The documents in Part B of the composite bundle comprises evidence of the criminal file that Mr Bahja says was provided by the appellant’s previous solicitors to his current legal representatives, Duncan Lewis. Mr Bahja also submits that the documentation was on the Crown Court’s Digital Case System and therefore available to the sentencing Judge, although he accepts that he cannot confirm whether the sentencing Judge reviewed the criminal file or not.
50. Specifically, the documents in Part B include the criminal charges, the police report dated 21 November 2020, witness statements of the attending police officers and the appellant’s interview and statement. Significantly, there is also an Excel spreadsheet prepared by Kent Police on the movements of the appellant’s Vauxhall Meriva Active vehicle. This showed that the vehicle had come to Maidstone on 25 of the previous 31 day before the appellant was apprehended; appearing to come in from London between 09.30 and 11.30hrs and leaving via the M25 between 2100 and 2200hrs.
51. The appellant gave a mostly ‘No comment’ interview to police questions including to the question which related to why his vehicle had been in Maidstone on so many occasions.
52. When he did respond to questions, the appellant said he was employed with ‘Smex Construction’ working 6 days a week on building sites located anywhere doing ‘heavy work’. He was paid £100 per day which was paid online to his bank account. He admitted that he was a heavy drug user and funded his addition through his employment income. The drugs found in his vehicle were for his personal use. He had come to Maidstone on 21 November to buy drugs for himself when the police stopped him. He stated categorially in interview ‘I am not a drug dealer.’
53. The appellant said that he lived at home in North London with his wife who was pregnant at the time. He said one of the bank transfers (£160) was to his mother but did not explain who Kevin Llanaj in Albania was who received the other bank transfer in the sum of £610. When he was arrested, the appellant stated, ‘My life is going down…because I am waiting for my baby, and now she is alone to pay bills.’ When asked if that was the ‘only reason’ he stated ‘Of course.’
54. Mr Bahja seeks to persuade me that evidence in the criminal file shows that the Judge’s assertion in his sentencing remarks that the appellant was in the ‘habit of dealing drugs’ was incorrect, and that in line with Gadinala at [43(iv)] I should look behind the sentencing Judge’s remarks to properly assess the nature and circumstances of the particular offences.
55. He submits that if the appellant was working 6 days a week earning a £100, he must have been in employment for at least 26 days out of the 31 days and therefore could not have been in the Maidstone area in his car (as suggested by the Kent Police Excel spreadsheet) several times during a day and sometimes for a whole day selling drugs. Mr Bahja submits that clearly someone else was selling drugs in Maidstone on those occasions.
56. Additionally, Mr Bahja referred to the police seizure of the appellant’s mobile phone where the only thing that was found was a post code for an address in Maidstone. The appellant admitted that it was the address where he was delivering drugs to one of his seller’s customers, not for profit or to fund his drug habit but as a favour to his seller. Mr Bahja also relies on the offer made by the appellant to the police to search his home which he says a genuine drug dealer would never do. As it turns out, none of the typical equipment associated with drug dealing (i.e. scales, cutting agents, wraps) were found at his home. All of these aspects, Mr Bahja submits shows that the appellant was not a drug dealer, and the Judge was wrong in his sentencing remarks.
57. In support of his assertion that I should look behind the Judge’s sentencing remarks, Mr Bahja made reference to the decisions in RK (Albania) [2014] UKUT 84, Gadinala and Sanambar v SSHD [2021] UKSC 30. In a nutshell, he submits that Gadinala and RK permit an immigration judge to depart from the sentencing Judge’s assessment of seriousness, or from the factors undermining the criminal conviction in very ‘exceptional circumstances. He further submits that neither Gardinala nor Sanambar imposes a test of very exceptional circumstances for the admission of evidence, not before the Crown Court Judge.
58. In contrast, and noting that the evidence in Part B has been admitted, Ms Ahmed on behalf of the respondent argued (in line with her skeleton at [14]-[15]) that the authorities mentioned by Mr Bahja did not give the appellant the opportunity to re-argue his criminal case in the immigration proceedings or to conduct satellite litigation. She submitted that the evidence did not assist the appellant because he pleaded guilty to each offence, the basis of his plea having been accepted by the Crown Court and therefore his conviction was binding: see Tomlinson, R (On the application of) v Secretary of State for the Home Department [2025] EWCA Civ 253 at [71].
59. In considering the respective submissions, I am also mindful that similar arguments were made by Mr Bahja before the UT during the error of law hearing. At [46] of the UT decision, UTJ Rastogi and DUTJ Chapman accepted that both Gadinala and RK did permit an immigration judge to depart from a sentencing judge’s assessment of seriousness, or from the factors underpinning the criminal conviction, respectively. However, the UT found that it was not normative to do so and as, recognised in RK, something very exceptional was required to justify such a course which had not been demonstrated by the appellant.
60. I accept the reasoning and the decision of the UT at [46]. There is no need to rehearse the legal arguments. That said, it should be recalled that the primary issue before the UT in the error of law hearing related to the admissibility of the evidence in the criminal file, while my task relates to what weight should be attached to it now that it has been admitted.
61. I have carefully considered the arguments and find that no weight should be attached to the evidence in the criminal file in determining the seriousness of the offence. I am therefore not prepared to look behind the sentencing Judge’s remarks.
62. I reach this conclusion for several reasons which follow. In the appellant’s skeleton dated 15 August 2025 it states ’Duncan Lewis obtained a copy of the appellant’s file from the Solicitors who dealt with the criminal matter’. However, there is no witness statement from a caseworker at Duncan Lewis confirming this fact. Mr Bahja further submitted that the criminal file was placed on the Crown Court’s Digital Case System before the sentencing Judge. Again, there is no evidence before me to confirm that fact.
63. However, it is at least tolerably clear that the criminal file documentation was before the Judge and was considered. I say this because the sentencing Judge was aware of the Kent Police Excel spreadsheet as he expressly made reference to the prosecution’s work on the movement of the appellant’s vehicle which led him to the view that the appellant was in the habit of coming to Maidstone to deal in drugs.
64. Further, the appellant was legally represented. It would appear from the sentencing remarks that the Judge was satisfied with his legal representative’s submissions as he remarked ‘Mr Rashid, you couldn’t have said any more’ to which Mr Rashid replied ‘That’s very kind. Thank you.’
65. If the appellant thought that the Judge’s sentence was wrong in some way, it was open to him to file an appeal against sentence and/or conviction, as appropriate. The information in the criminal file which he invites me to accept in order to go behind the sentencing remarks was available to him on the date of sentence. This is not new information that has only come to light subsequently, but information which he says was available to the sentencing Judge, yet no appeal has been filed.
66. Mr Bahja now comes to the UT well after the sentencing phase and says that the appellant was not well represented by his previous solicitors. If that is true, then the appellant should have taken his grievance through the appropriate regulatory channels. Again, he did nothing.
67. To permit the appellant to go behind the sentencing remarks in the specific circumstances of his case would be to allow him to re-open and re-litigate his case by launching a collateral attack on the Judge’s sentence in circumstances where he entered a guilty plea. Such a course would not be appropriate for the reasons I have mentioned. The appellant has not articulated the very exceptional reasons to permit such a course, especially when there were other more appropriate avenues to pursue if he felt aggrieved by the sentence. As was stated in R v Harris and Others[2013] EWCA 467 at [4], if the appellant seeks to challenge the prosecution’s account, the onus is on him to do so and to identify the areas of dispute in writing, first with the prosecution and then with the court’. The appellant failed to take either course.
68. I now turn to the oral evidence given by the appellant and his wife.
69. The appellant’s evidence in summary was as follows:
(a) he accepted that he committed the offences shortly after arriving in the UK even though he did not have the permanent right to stay but only limited leave to remain of 5 years with a chance of extension.
(b) it was not for him to say if the sentencing Judge was right or wrong, but he believed his conduct was a stupid mistake.
(c) on the day he was arrested he was not supplying drugs but was making a favour for his seller by dropping off to one of their customers. He received no payment.
(d) he was confused at the time when he pleaded guilt. It was during the Covid-19 lockdown. He confirmed that he did receive legal advice. He was not blaming anyone except himself. He could not turn the clock back. It was a difficult time.
(e) he did not deal in drugs for financial gain. When he spoke to his lawyer about what the sentencing Judge had said, he was advised that if he appealed it could be worse for him as he could receive a higher sentence.
(f) he was not seeking to challenge the sentencing Judge or his previous lawyers but was simply asking the Upper Tribunal to look at everything again. He couldn’t say what documentation was in front of the sentencing Judge.
(g) the offending in his view was a ‘one off.’ It was just a favour for someone.
(h) in saying it was a ‘one-off’ he did not mean that it wasn’t serious, it was serious. It was horrible whether ‘one-off’ or not, both ways, it was wrong.
(i) he took responsibility for the offending and would never get involved again.
(j) he was released from prison in April 2022 on licence until August 2023. He had learnt his lesson and was asking for forgiveness. If he had not been stupid, he would not be here today.
(k) he was a heavy drug user which started about 2 months before he was arrested. he used too much and was ashamed. He ended his drug use on the day he was arrested. He completely stopped and was proud of it.
(l) he has a lot of responsibility now working part-time and sharing childcare with his wife who also works part time. If he started using drugs again his partner would kick him out.
(m) he undertook courses in prison which helped him stay off drugs. He could not explain why he started taking drugs but thought he just got stuck using them.
(n) his wife tried hard to stop him taking drugs and it was like a fight inside him, but no one is able to stop anyone at the end of the day.
(o) if he is deported his two children would not join him. He could not bear to be separated from his partner and his children. His wife did not wish to return to Albania. Her parents had been granted leave to remain in the UK. He only had his mother in Albania and some extended family.
(p) he had not been approached to do any further courses since leaving prison but had improved himself by looking after the children and working part-time.
(q) he accepted there were no letters of support from anyone other than his wife.
(r) he denied he could continue rehabilitation in Albania.
Oral Evidence of Elena Litsi (Mrs Nabolli)
(s) she agreed that the offences were serious, but they were a ‘one-off’ and therefore not too serious .
(t) she tried to stop her husband from using drugs but was not able to do so. But since he came out of prison, he has never used them again. She could not recall when he stated using drugs.
(u) he did not take any specific steps to stop using drugs; it was because of her and their young daughter that he stopped.
(v) she confirmed that her parents were coming to the UK to live and that the appellant’s mother lived in Albania. She confirmed that if he were deported, she and the children would not join him in Albania. She had a good job in the UK, and her daughter had just started reception, and her son was British born.
70. In considering the first stage in BF (Portugal) which concerns the appellant’s personal conduct, I must conduct an overall assessment of the appellant’s offending, its circumstances and subsequent conduct.
71. My starting point is the sentencing Judge’s remarks and the preserved findings from the FtT Judge. I find that the offences were serious as identified by the sentencing Judge and that the 33 months imprisonment imposed did not fully reflect the level of seriousness because of the significant mitigation offered and the absence of any real aggravating factors, coupled with a 25% reduction given in respect of the guilty plea.
72. I also find that the appellant played a significant role in the commission of the drug offences and was in the habit of travelling to the location to deal in drugs, given the prosecution evidence on his vehicle’s movements which has not been challenged by him through any appropriate avenues. He was also convicted of two motoring offences which must also be taken into account. The Judge noted the appellant’s genuine remorse.
73. Further, I find that prior to his offending in November 2020, the appellant was of good character and since release from prison in April 2022 has not been involved in any offending, including since the expiry of his licence in August 2023. He consciously completed various courses in prison as part of his Basic Sentence Plan connected to his offending and was awarded a Behaviour Change Service Certificate on 26 May 2021. He lives with his wife and two young children a has obtained employment working part-time while sharing the childcare arrangements with his wife who also works part-time. Significantly, there has been no continuation nor escalation in his offending. His lifestyle appears to be stable and firmly focused on his family life.
74. I now turn to the second and third stages of BF (Portugal) which can be taken together.
Whether the appellant’s conduct represents a genuine, present, and sufficiently serious threat?
75. In considering whether the appellant’s conduct represents a genuine, present and sufficiently serious threat to one the fundamental interests of society, it should be recalled that the key concern of the error of law hearing was whether as part of that broader question, the FtT Judge had sufficiently considered whether the appellant posed a ‘present’ threat. In this context, the Mr Bahja accepts that this was a serious offence and further that the supply of drugs was a type of offending that falls within the public policy or security grounds and is capable of affecting one of the fundamental interests of society within the meaning of Schedule 1 to the 2016 EEA Regulations. I agree with the points made by Mr Bahja.
76. As noted in the UT’s error of law decision at [56] it is clear from regulation 27(5)(c) that the threat has to be present. That does not mean to say that it has to be imminent (regulation 27(5)(c).
77. At [59] of the UT’s error of law decision, the Tribunal found that the FtT Judge had failed to engage with whether or not the appellant posed a present risk to one of the fundamental interests of society and that failure amounted to an error of law. The FtT Judge was not only obliged to do so by the second stage of the BF (Portugal) process but under the 2016 EEA Regulations themselves.
78. Accordingly, the primary focus of the remaking within the broader question of the second stage of BF (Portugal) is whether the appellant’s conduct poses a present and sufficiently serious threat.
79. At the core of that thorny issue is whether the respondent has established that the appellant has a ‘propensity to act in the same way in the future’ although that need not be so in every case: see The Secretary of State for the Home Department v Robinson [2018] EWCA Civ 85 at [71].
80. The respondent’s position on the issue of ‘genuine, present and sufficiently serious threat’ is viewed through the prism of her arguments set out at paragraph 24 of her skeleton. In summary, she maintains that within a short time of arriving in the UK in 2018, the appellant committed crimes, which behaviour shows a blatant disregard for the laws of the UK. In her view, the appellant’s offending is more serious than a foreign national offender who has been in the UK since a young age and later committed an offence, spoiling their good character.
81. The respondent accepts that the appellant not committing any further offences does assist him but submits that the reason he has not re-offended is because his parole licence did not expire until August 2023 and he has had the threat of deportation hanging over him. In this context, the respondent argues that despite the OASys report saying he is at a low risk of re-offending, she considers that he has the propensity to re-offend once he is ‘off the hook.’ In support of this assertion, the respondent points to the fact that his wife could not stop him from offending very shortly after arriving in the UK.
82. The respondent also argues that the biggest indicator that the threat is ‘present’ is the appellant’s evidence throughout the proceedings that the offence was a ‘one-off.’ She submits that this evidence contradicts and undermines his supposed acceptance that the offence was serious and further indicates that he does not take his offending seriously. In this respect, the respondent relies on the decision of MA (Pakistan) v SSHD [2014 EWCA Civ 163 at [18-20] where it was accepted that weight can be placed on the fact that the appellant was still in denial about his conviction, and that although he had kept out of trouble he had done so at a time when he knew he would be under extreme scrutiny.
83. I accept that the key issue question that goes to the issue of whether the appellant poses a present threat is whether he has the ‘propensity to act in the same way in the future.’ The evidence shows that prior to 21 November 2020, the appellant was a person of good character. At the sentencing, the Judge noted the appellant had expressed genuine remorse. Since his arrest he has not re-offended. Indeed, there has been no continuation or escalation of his offending even after release on licence from prison in early April 2022 or following the expiry of the licence in August 2023. On any view he has not re-offended for a significant period of years. In the circumstances, it is fair to say that he has no history of re-offending to date.
84. I now turn to the OASys report (the ‘report’) which is dated 19 May 2021. It was already 3 years and 8 months old by the date of the FtT hearing on 12 November 2024 and by that time the appellant’s period on release on licence had already expired on 22 August 2023. The report is instructive on several levels, firstly, in identifying the possible underlying reasons for the appellant’s offending and, secondly, on the likely risk of him reoffending in the future.
85. Turning to the underlying factors related to his offending, the report helpfully includes a self assessment questionnaire. In the questionnaire, the appellant identified the following factors as a problem linked to his offending: (i) mixing with bad company, (ii) going to places which cause me trouble, (iii) repeating the same mistakes, and (iv) making good decisions. When the questionnaire asked if he was likely to offend in the future, he stated ‘Definitely not.’ This was followed by ‘Why do you think this? And he stated ‘Never - because it is an offence.’
86. The report confirms that the appellant received the ‘Basic Sentence Plan’ in prison which included a number of courses. The preserved facts of the FtT decision at [19] confirms that there is evidence that the appellant successfully completed work in prison on Victim Empathy and Remorse (in-cell pack) , Behaviour Change Service, and various other courses. He was also awarded a Behaviour Change Service Certificate on 26 May 2021.
87. Looking at the underlying factors identified as a problem linked to his offending, it would seem that the successful completion of the courses has helped to address his negative behaviours. This has not been challenged by the respondent. In his evidence to the Tribunal, the appellant accepted that his prior offending was serious and that it was wrong which ever way it was viewed, clearly showing insight and maturity. He also denied that he was challenging the conviction.
88. The appellant stated that he had not been approached to complete any further rehabilitation courses but felt he had personally improved his life since leaving prison and had taken on a lot of responsibility. This included obtaining a driving licence so that he could drive lawfully, finding a part-time job in the delivery industry to earn an income to support his family, and supporting his wife who also worked part-time to jointly manage their childcare obligations. He had stayed off drugs since his arrest and was proud of that fact. His wife confirmed this to be the case too. He was adamant that he had made a stupid mistake by involving himself with drugs but that was all behind him. He could not imagine living without his wife and children in his life.
89. I consider that the appellant was sincere when he gave his evidence and was able to demonstrate concrete ways about how he had improved his life since leaving prison which would help him to avoid re-offending.
90. The respondent has submitted that the appellant’s reference to his offending being a ‘one-off’ is indicative of his denial of responsibility which undermines his acceptance that his offence was serious. She maintains this is the biggest indicator that he poses a present threat. Additionally, she dismisses the absence of any re-offending on the basis that he is under the threat of deportation and suggests that once he is ‘off the hook’ he will return to his former ways.
91. I accept that the respondent’s concerns carry some weight, but I do not consider that because he has characterised his offending as a ‘one-off’ that it shows the appellant is in denial or fails to take responsibility for his actions. It is not so black and white.
92. Factually, the appellant’s offending was a ‘one-off.’ There has been no escalation or continuation of his offending. Even though it is true that he has had the threat of deportation hanging over him, that does not in my view fully explain why he has not re-offended.
93. In my view, it is the removal or diminution of the underlying reasons related to the original offending (as set out in the OASys report) through the rehabilitative courses in prison coupled with the specific lifestyle changes, which have acted as protective factors that have significantly reduced the risk of reoffending.
94. Those protective factors include his active role as father to his two young children. Neither of whom were born when he committed the offences on 21 November 2020. His part-time employment and shared commitment with his wife to looking after their children as a family unit are all protective factors which were absent in November 2020.
95. The OASys report assessed the appellant as posing a low risk of harm to the public and a low risk of general re-offending, applying the OGRS3 actuarial tool of 15% re-offending over a two-year period. The preserved facts at [19] & [20] of the FtT decision reflects that the FtT Judge did not consider himself bound by the OASys Assessment report and took the view that a low risk to the public did not mean no-risk to the public, mindful that a 15% re-offending period was not a matter that could be treated as insignificant.
96. The FtT decision is dated November 2024. The OASys report is dated 19 May 2021. The report was already significantly out of date when it was considered by the FtT Judge. The two-year period when the risk of re-offending was arguably at its highest has long expired without any incident. It must logically follow that any continuing risk of re-offending has diminished further by now.
97. Pulling all the threads together, I consider for the foregoing reasons, there is insufficient evidence to conclude that the appellant’s conduct shows a propensity to re-offend, and therefore his conduct at this time does not constitute a genuine, present, and sufficiently serious threat affecting one of the fundamental interests of society.
98. Accordingly, the appellant’s appeal is allowed.

Notice of Decision
The appeal is allowed.
K.A.Khan

Judge of the Upper Tribunal
Immigration and Asylum Chamber


30 September 2025

NOTIFICATION OF APPEAL RIGHTS
1. A person seeking permission to appeal against this decision must make a written application to the Upper Tribunal. Any such application must be received by the Upper Tribunal within the appropriate period after this decision was sent to the person making the application. The appropriate period varies, as follows, according to the location of the individual and the way in which the Upper Tribunal’s decision was sent.
2. Where the person who appealed to the First-tier Tribunal is in the United Kingdom at the time that the application for permission to appeal is made, and is not in detention under the Immigration Acts, the appropriate period is 12 working days (10 working days, if the notice of decision is sent electronically).
3. Where the person making the application is in detention under the Immigration Acts, the appropriate period is 7 working days (5 working days, if the notice of decision is sent electronically).
4. Where the person who appealed to the First-tier Tribunal is outside the United Kingdom at the time that the application for permission to appeal is made, the appropriate period is 38 days (10 working days, if the notice of decision is sent electronically).
5. A “working day” means any day except a Saturday or a Sunday, Christmas Day, Good Friday or a bank holiday.
6. The date when the decision is “sent’ is that appearing on the covering letter or covering email