Tribunal decisions

The decision

IN THE UPPER TRIBUNAL
IMMIGRATION AND ASYLUM CHAMBER Case No: UI-2025-001902
First-tier Tribunal No: DA/00331/2020

THE IMMIGRATION ACTS

Decision & Reasons Issued:
On 9 April 2026

Before

UPPER TRIBUNAL JUDGE HOFFMAN
DEPUTY UPPER TRIBUNAL JUDGE LAWRENCE

Between

HL
(ANONYMITY ORDER MADE)
Appellant
and

SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: In person
For the Respondent: Ms J Isherwood, Senior Home Office Presenting Officer

Heard at Field House on 21 August 2025

Order Regarding Anonymity

Pursuant to rule 14 of the Tribunal Procedure (Upper Tribunal) Rules 2008, the appellant is granted anonymity.

No-one shall publish or reveal any information, including the name or address of the appellant, likely to lead members of the public to identify the appellant. Failure to comply with this order could amount to a contempt of court.

DECISION AND REASONS
Introduction
1. The appellant, who is citizen of Algeria, appeals under regulation 36 of the Immigration (Economic Area Regulations) Regulations 2016 (“the EEA Regulations”) and s.82(1)(b) of the Nationality, Immigration and Asylum Act 2002 (“the 2002 Act”) against the respondent’s decision dated 6 October 2020 to refuse his human rights claim and deport him from the United Kingdom.
2. The appellant’s appeal was originally allowed by the First-tier Tribunal on 2 October 2024. However, in a decision promulgated on 3 July 2025, the Upper Tribunal (Judge Hoffman and Deputy Judge Farrelly) set aside the decision of the First-tier Tribunal on the basis that it contained a material error on a point of law. The case was therefore adjourned for a remaking hearing. A copy of the error of law decision is appended to this decision.
Anonymity
3. In the appellant’s absence at the error of law hearing, a precautionary anonymity order was made. This was on the basis that the appellant had previously been sectioned under mental health legislation following a suicide attempt in 2021, and there was no evidence before the Tribunal addressing whether he continued to pose a risk of self‑harm. At the outset of the remaking hearing, we invited submissions from the parties on whether the anonymity order should remain in place. The appellant requested its continuation on the grounds that he suffers from depression and has a history of suicide attempts; Ms Isherwood raised no objection. While we have reminded ourselves of the strong public interest in open justice, particularly in deportation appeals involving foreign offenders, we consider that the protection of the appellant’s mental health outweighs those considerations in the circumstances of this case. The anonymity order is therefore maintained.
Background
4. The appellant was born in Algeria in 1970. At the age of 13, he moved to France, although he did not acquire French nationality. According to the appellant, he married a French national in 1997. He entered the UK in 2001 or 2002. The appellant claimed asylum on 24 February 2002; this was refused on 13 September 2002, and he did not exercise his right of appeal. However, on 20 January 2003 he was issued with an EEA residence document as the spouse of an EEA national, valid until 5 December 2003. On 10 October 2003, his application for indefinite leave to remain (“ILR”) as the non‑EEA spouse of an EEA national was refused on the basis that it had been submitted prematurely. He was subsequently granted a further EEA residence card on 6 September 2005, valid until 1 March 2011.
5. Although the respondent’s immigration history does not refer to it, we note from paragraph [29] of the First‑tier Tribunal’s decision that, during those proceedings, the appellant produced his passport showing that he had been granted ILR on 22 July 2010. The presenting officer subsequently made enquiries and confirmed that the appellant had been granted settled status under the Immigration Rules rather than under the EEA Regulations. Before us, the appellant produced a photograph of the vignette, though not the passport itself. Ms Isherwood was unable to provide any further explanation as to the basis on which ILR had been granted. The appellant stated that it had been granted to him as the spouse of a French national. The precise route by which the appellant acquired his ILR – under paragraph 395C of the Immigration Rules then in force – was only confirmed in post-hearing submissions. We address the significance of this to the appeal below.
6. During his time in the UK, the appellant has received several convictions for different offences:
a. 3 March 2008: Failing to surrender to police custody, which led to £315 fine or seven days custody in lieu.
b. 11 July 2008: Failing to provide a specimen for analysis (driving or attempting to drive) and failing to surrender to custody at an appointment time, which led to a 12 month community order, costs and a disqualification from driving for 18 months.
c. 25 November 2008: Breach of a community order, which led to an order to continue an unpaid work requirement.
d. 8 June 2017: Theft (shoplifting) for which he received a community order, was ordered to pay costs and a victim surcharge, and had to undergo alcohol treatment for six months and rehabilitation activity.
e. 5 October 2017: Failing to comply with the requirements of a community order, which led to an order to continue rehabilitation activity.
f. 30 January 2018: Failing to comply with the requirements of a community order, which led to an order to continue alcohol and drugs treatment.
g. 9 October 2019: Theft (shoplifting) for which he received a conditional discharge of 12 months and had to pay a victim surcharge.
h. 27 May 2020: Breach of a conditional discharge, for which he was imprisoned for one month, and burglary and theft (dwelling) for which is was sentenced to 20 months imprisonment and ordered to pay a victim surcharge.
i. 26 March 2021: Possession of a knife in a public place for which he received a suspended sentence of 20 weeks and a rehabilitation activity requirement.
j. 8 July 2021: Assault by beating of an emergency worker, for which he was given a four week suspended sentence and a rehabilitation activity requirement, and common assault, for which he had to pay compensation of £100.
k. 9 August 2021: Theft (shoplifting) for which he received a suspended sentence of 10 weeks with a rehabilitation requirement.
l. 23 January 2024: Battery, for which he was imprisoned for 16 weeks. A restraining order was also made against him.
m. 31 January 2025: The appellant pleaded guilty to theft (shoplifting) (it is unclear what sentence, if any, he received for this).
n. 26 June 2025: The appellant was due to appear before Croydon Magistrates’ Court for harassment (breach of a restraining order). Due to his failure to attend, the hearing was postponed.
7. As a consequence of the 27 May 2020 conviction for burglary, on 26 June 2020 the respondent served the appellant with a Stage 1 letter explaining that she was minded to deport him to Algeria. The appellant failed to provide any reasons in response as to why he should not be deported. Consequently, on 6 October 2020 the respondent made a Stage 2 decision confirming his deportation. The appellant now appeals that decision.
The hearing
Preliminary issues
The interpreter
8. A North African Arabic interpreter had been booked for the appellant. However, at the start of the hearing we were told that the appellant is most comfortable using French. The interpreter explained that he was also a fluent French speaker and the appellant confirmed that he and the interpreter were able to understand each other in that language. The hearing therefore proceeded with the appellant using French and no problems arose from this.
The appellant’s failure to attend the error of law hearing
9. We raised with the appellant why he had not attended the error of law hearing on 26 June 2025. The appellant said that he was unable to because he had to attend criminal proceedings in Croydon that day. As evidence, he produced a letter addressed to him from his criminal solicitors dated 21 July 2025. While that letter confirmed that the appellant had been due to appear before Croydon Magistrates’ Court on 26 June 2025 it also said that he had failed to attend the hearing. We therefore asked the appellant why he had attended neither hearing. The appellant said that he was worried and had taken an overdose of antidepressant tablets with alcohol that day. We asked if he had any medical evidence of this, but the appellant told us that he had not gone to hospital.
10. Later in the hearing, following the appellant’s indication that he had initiated Family Court proceedings to obtain contact with his youngest child, we adjourned briefly to allow him to obtain evidence of those proceedings from a friend who, he said, had made the application on his behalf. Upon our return, the appellant produced an email which he claimed contained the Family Court reference. The email, however, quoted the appellant’s First‑tier Tribunal appeal reference and had been sent to IAFTA@justice.gov.uk at 16:55 on 20 June 2025. It is unclear to whom this email address belongs or whether it is even a correct address. In any event, the body of the email stated as follows:
“To the Honourable Judge,
I am afraid I am unable to attend the hearing on 26/06/2025. The reason being I have a family hearing on the same date. I have mislaid the evidence for the family hearing but this weekend I look for it and email it to you hopefully on Monday.
Thank you for your kind attention and understanding.
Yours faithfully
[The appellant]”
Therefore, this email did not prove that the appellant had extant Family Court proceedings, but instead related to the error of law hearing before this Tribunal.
11. We have therefore considered whether the error of law decision should be revisited due to possible unfairness to the appellant. We remind ourselves that an error of law decision should only be revisited in very exceptional cases: see AZ (error of law: jurisdiction; PTA practice) Iran [2018] UKUT 00245 (IAC). For the following reasons, we are satisfied that it is unnecessary to revisit the error of law decision.
12. First, before proceeding with the error of law hearing, the Tribunal confirmed that the notice of hearing had been sent to the appellant at his correct address, and attempts were made to telephone him on the day of the hearing, without success. As the appellant accepted before us, he was fully aware of the error of law hearing but chose not to attend it, just as he chose not to attend his criminal hearing scheduled for the same day. No evidence has been provided to substantiate his claim that he attempted suicide on that day.
13. Second, although the appellant has now produced the email sent on 20 June 2025, it was not sent to an Upper Tribunal email address. It is also unclear whether the appellant was seeking an adjournment or merely intended that the hearing proceed in his absence. Furthermore, the explanation given for his inability to attend the hearing was factually incorrect: the appellant did not have a Family Court hearing on 26 June 2025; he was due to appear – though did not attend – at Croydon Magistrates’ Court. The appellant denied any intention to mislead the Tribunal and asserted that his friend, who wrote the email on his behalf, must have been confused. We make no findings on whether the appellant did intend to mislead the Tribunal, but we bear in mind that it was his responsibility to ensure that accurate information was conveyed to it.
14. Third, the appellant raised no complaint before us about the hearing having proceeded in his absence.
15. We are therefore satisfied that the appellant was given proper notice of the error of law hearing; that he did not make any effective or express application to adjourn that hearing; and that it was consequently fair to proceed in his absence. We are also satisfied that the appellant’s attendance would not have made any material difference to the outcome. This is because the First‑tier Tribunal’s decision was set aside for reasons that included its making a finding that was plainly contrary to binding Court of Appeal authority: see [18]–[20] of the error of law decision.
The appellant’s ability to engage with the documentary evidence
16. The appellant informed us that he did not have a copy of the respondent’s hearing bundle because he had given it to a friend who had not returned it. In any event, he said that he cannot read or write. Consequently, when passages within the documentary evidence were referred to during the hearing, we asked Ms Isherwood to read them out to the appellant. The appellant had no objections to that approach.
Approach to the submissions
17. For the purposes of closing submissions, in order to assist the appellant, we considered it preferable not to invite the respondent to present all her submissions in one continuous sequence, followed by the appellant’s reply. Instead, we directed Ms Isherwood to divide her submissions into discrete topics – for example, the appellant’s period of residence under the EU Treaties, the risk he poses to the public, and proportionality – so that the appellant could respond to each issue in turn before she proceeded to the next.
18. In addition, although the appellant did not appear to be intoxicated at any stage and remained coherent throughout, we were mindful of his history of alcohol dependence. We therefore permitted him to take regular breaks during the hearing to ensure that he could maintain concentration and participate effectively.
The evidence
19. We had before us the 115-page consolidated bundle prepared by the respondent for the error of law hearing. This did not, however, contain the appellant’s evidence before the First-tier Tribunal, which it appears he submitted piecemeal. We were able to obtain as much of this as we could find from the First-tier Tribunal’s Teams site. There are too many separate documents to list individually, but they include a skeleton argument prepared by the appellant’s former representative, photocopies of the appellant’s residence permit, a birth certificate for one of his children, GP records, a GP’s letter dated 23 August 2022, a letter from a probation officer dated 21 October 2022 and an email from the appellant’s ex-partner, RB, in support of the appellant.
20. We also had before us two documents obtained by the respondent pursuant to a direction made by the First-tier Tribunal for her to produce evidence from HMRC of the appellant’s earnings. This evidence consists of a witness statement made by an HMRC official dated 8 May 2024 (although, strangely for a witness statement, the official’s name is redacted) and the appellant’s tax calculations for the 2006-07, 2007-08 and 2010-11 tax years.
21. Following the error of law decision, the Tribunal afforded both parties the opportunity to file any further evidence no later than 21 days before the remaking hearing. On 7 August 2025, the respondent filed a skeleton argument together with an up‑to‑date Police National Computer (“PNC”) report relating to the appellant. Taking all the circumstances into account, we are satisfied that the respondent should be granted an extension of time to rely on the PNC report, given the importance of having an accurate and current record of the appellant’s offending history for the purposes of our decision.
22. The appellant did not file any evidence in accordance with the directions. However, he did produce some documents at the hearing, including the letter from his criminal solicitors and his up-to-date GP records. We also granted the appellant permission to rely on those documents.
23. The appellant gave oral evidence before the Tribunal. As he was acting in person and had not made a witness statement, we gave the appellant the opportunity to make an opening statement setting out his case. He was then cross-examined by Ms Isherwood, and the Tribunal also asked some clarificatory questions. The appellant’s evidence is recorded in the record of proceedings and is not rehearsed here accept where it is necessary to do so.
Post-hearing directions
24. As explained above, during the hearing, the appellant produced a photograph of a vignette in his passport that showed he had been granted ILR on 22 July 2010. That grant of ILR is not referred to in the immigration history set out in the PF1 form or in the respondent’s Stage 2 deportation decision dated 2 October 2020.
25. At [29] of the First-tier Tribunal’s decision, the panel records that the presenting officer had made enquiries and informed them that the ILR “status was not granted under the EEA Regulations 2016, but granted under the Immigration Rules.” It is not, however, explained on what basis that ILR was granted. At the hearing before us, Ms Isherwood was unable to shed light on this.
26. Having reflected on the issue after the hearing, we decided that it was important to obtain clarification on the basis and consequences of the grant of ILR. We therefore issued the following directions on 3 September 2025:
a. Within 21 days of the date on which this order is received, the respondent shall confirm in writing:
i. The basis on which the appellant was granted ILR on 22 July 2010.
ii. Whether the grant of ILR was based on an acceptance by the respondent of the appellant’s length of residence in the UK under the EEA Regulations and, if so, how long the respondent accepted the appellant had been lawfully resident for by 22 July 2010.
iii. Whether the decision to grant the appellant ILR on 22 July 2010 means that his deportation does not fall under the Immigration (European Economic Area) Regulations 2016 but under the domestic regime.
iv. If the appellant’s deportation does not fall under the Immigration (European Economic Area) Regulations 2016, what implications this has for the appeal currently before the Upper Tribunal. In particular, does this mean that the decision will be rescinded and re-made in accordance with domestic legislation.
v. If the respondent’s position is that it is appropriate to deport the appellant under the Immigration (European Economic Area) Regulations 2016, does she now accept that he has been continuously residence in accordance with the EEA Regulations for more than five years.
b. Unless (1) the respondent’s position is that the decision under appeal should be rescinded because deportation action has been commenced under the wrong regime; or (2) the respondent maintains that deportation has been commenced under the correct regime but she accepts that the appellant can demonstrate more than five years’ continuous residence in accordance with the EEA Regulations,
i. within 21 days of the date on which this order is received, the respondent shall exercise her powers under s.40 of the UK Borders Act 2007 to obtain from HM Revenue & Customs and disclose to the appellant and the Upper Tribunal details of the employment and/or self-employment of the appellant’s ex-wife covering the period 2002-03 to 2012-13 inclusive.
c. Following receipt of the respondent’s responses to the directions above, the appellant shall have 7 days to respond should he so choose.
27. Unfortunately, the respondent had to apply for several extensions of time in order to comply with the directions, and she was unable to file a response until 19 February 2026. This consisted of a written response, prepared by Mr Peter Deller, a senior presenting officer, accompanied by a witness statement dated 9 February 2026 made by an HMRC official, Mr Max Donaldson. In summary, the written response confirmed the following:
a. The appellant was granted ILR in 2010 in the context of a
“clearance exercise based on paragraph 395c [sic] of the immigration rules. Although the casework notes acknowledge the existence of a French wife there is no suggestion of recognition of any right to reside under the EU Treaties. Indeed it should be noted that it was nor [sic] permissible to endorse the passport of a person [exercising Treaty rights] with such rights with leave to enter or remain.” (Paragraph 5)
b. The appellant’s evidence that he and his wife divorced in 2012 and that she subsequently returned to France is “largely corroborated” by Mr Donaldson’s statement, which confirms that HMRC holds no record of the appellant’s ex‑wife after 2012 and only very limited financial activity before that date. In particular, HMRC records show that she declared a gross income of £1,170 in the 2004–2005 tax year and nothing in any other year. The respondent therefore submits that, even if the appellant’s ex‑wife had acquired a right of permanent residence under regulation 15 of the EEA Regulations, she would have lost that right after two years’ absence from the UK.
c. Consequently, only if the appellant had himself obtained a right of permanent residence while married to his wife, or through having a retained right of residence, would he be able to avail himself of the protections under regulation 27(5) of the EEA Regulations (paragraph 8). The respondent contends that there is insufficient evidence before the Upper Tribunal to show that the appellant did acquire a permanent right of residence and she notes the preserved findings of the First-tier Tribunal that, at best, the appellant attracted only the minimum level of protection under EU law.
d. As the appellant had ILR under the Immigration Rules, the decision-maker had been “misguided” in considering the appellant’s deportation under the framework of the EEA Regulations (paragraph 9). However, the respondent contends that this does not mean that the decision to deport the appellant is fatally flawed. She submits that “the instrument for deportation remained an order under section 5(1) of the [Immigration] Act 1971 with only the criteria different. It would remain to be decided [on appeal] whether deportation would constitute a disproportionate breach of protected Article 8 rights.”
28. The appellant did not file any response to the respondent’s submissions and evidence. Given the respondent’s delays in complying with directions, and taking into account that the appellant is acting in person, on 5 March 2026, we issued the following directions to him:
“On 19 February 2026, the Secretary of State complied with the Tribunal’s directions and filed the attached statement together with evidence obtained from HMRC concerning your ex‑wife’s economic activity in the UK.
In accordance with paragraph 8(c) of the directions dated 3 September 2025, you were granted 7 days to file a response, should you wish to do so. The Judges note that no response has been received.
Before the Judges proceed to determine your appeal, please confirm within 48 hours:
1. Whether you intend to respond to the Secretary of State’s statement and evidence.
2. Given that it has been more than six months since the remaking hearing, whether you would like a further hearing to update the Tribunal on your circumstances as regards your Article 8 claim?”
29. No response was received from the appellant, and we therefore proceed to determine the appeal.
Issues
30. The parties agreed that the following issues needed to be determined by the Upper Tribunal:
a. What level of protection does the appellant have under the EU Treaty.
b. Whether the appellant meets the requirements for deportation under regulation 27 of the EEA Regulations.
c. Whether the appellant’s removal will breach his right to a family and/or private life under Article 8 of the European Convention on Human Rights (“ECHR”).
Legal framework
31. The EEA Regulations set out the framework for deporting from the UK people with protections under the EU Treaty. Notwithstanding the UK’s exit from the European Union, the EEA Regulations continue apply to cases involving EEA nationals or their family members where the index offence leading to the deportation action was committed prior to 11 pm on 31 December 2020.
32. Under regulation 23(6)(b), the respondent can remove an EEA national or the family member of an EEA national it can be justified on grounds of public policy, public security or public health in accordance with regulation 27.
33. Regulation 27(3) says that a decision to remove someone with a right of permanent residence under regulation 15 can only be taken on serious grounds of public policy and public security. Regulation 15 entitles a person to permanent residence in circumstances including where a non-EEA family member of an EEA national has resided in the UK with the EEA national in accordance with the EEA Regulations for a continuous period of five years or, by the end of a period of five years, was a family member with a retained right of residence.
34. In cases where the respondent is seeking to remove a person on public policy and public security grounds, her decision must be taken in accordance with the requirements of regulation 27(5) and (6):
(5)  The public policy and public security requirements of the UK 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 UK, 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 UK, P's social and cultural integration into the UK and the extent of P's links with P's country of origin.
35. When considering Article 8 claims raised by foreign criminals, s.117A of the 2002 Act requires that I must have regard to the contents of ss.117B and 117C. The latter provision applies specifically to cases involving the deportation of foreign criminals:
Section 117C Article 8: additional considerations in cases involving foreign criminals

(1) The deportation of foreign criminals is in the public interest.
(2) The more serious the offence committed by a foreign criminal, the greater is the public interest in deportation of the criminal.
(3) In the case of a foreign criminal (“C”) who has not been sentenced to a period of imprisonment of four years or more, the public interest requires C's deportation unless Exception 1 or Exception 2 applies.
(4) Exception 1 applies where—
(a) C has been lawfully resident in the UK for most of C's life,
(b) C is socially and culturally integrated in the UK, and
(c) there would be very significant obstacles to C's integration into the country to which C is proposed to be deported.
(5) Exception 2 applies where C has a genuine and subsisting relationship with a qualifying partner, or a genuine and subsisting parental relationship with a qualifying child, and the effect of C's deportation on the partner or child would be unduly harsh.
(6) In the case of a foreign criminal who has been sentenced to a period of imprisonment of at least four years, the public interest requires deportation unless there are very compelling circumstances, over and above those described in Exceptions 1 and 2.
(7) The considerations in subsections (1) to (6) are to be taken into account where a court or tribunal is considering a decision to deport a foreign criminal only to the extent that the reason for the decision was the offence or offences for which the criminal has been convicted.
36. The burden is on the appellant to prove the facts of his case applying the civil standard of balance of probabilities. The relevant date is the date of the hearing.
Findings – Remaking
What level of protection is the appellant entitled to under the EU Treaty?
37. We are satisfied, in the light of the respondent’s written response dated 19 February 2026, that the appellant has no entitlement to protection under the EU Treaty.
38. This is because the appellant was granted ILR under the Immigration Rules on 22 July 2010. From that point onwards, his residence in the UK was governed by domestic law rather than by EU law. At the time, paragraph 395C of the Rules set out the factors the respondent was required to consider when deciding whether to remove a person unlawfully present in the UK under s.10 of the Immigration and Asylum Act 1999. Those factors included consideration of the individual’s:
a. age;
b. length of residence;
c. strength of connections;
d. personal history, including character, conduct and employment record;
e. domestic circumstances;
f. previous criminal record and the nature of any offence of which the person has been convicted;
g. compassionate circumstances; and
h. any representations received on the person's behalf.
The provision therefore has nothing to do with a person’s entitlements under the EU Treaties.
39. The respondent’s written response does not explain how the appellant came to be considered under the “clearance exercise”, but that is immaterial. What matters is that the appellant was granted ILR under the Immigration Rules. By the time the respondent made the deportation decision, there was therefore no reason for the decision‑maker to proceed under the EEA Regulations, and the failure to recognise the relevance of the grant of ILR has unnecessarily complicated the subsequent appeal process. The appellant is not entitled to the protection of EU law, and his deportation falls to be considered squarely under domestic legislation. We agree with Mr Deller that this error does not invalidate the deportation decision. As he correctly observes, the deportation order would in any event be made under s.5(1) of the 1971 Act, and the respondent addressed the appellant’s human rights in her Stage 2 decision from paragraph 59 onwards.
Whether the appellant’s removal will breach his Article 8 ECHR rights
40. We are satisfied that the appellant meets the definition of a “foreign criminal” under s.32 of the UK Borders Act 2007 Act (“the 2007 Act”): he is not a British citizen; he has been convicted in the UK of an offence; and he was sentenced to a period of imprisonment exceeding 12 months. Under s.32 of the 2007 Act and s.117C(1) of the 2002 Act, Parliament has made it clear that the deportation of a foreign criminal is conducive to the public good and in the public interest. Furthermore, under s.117C(2) of the 2002 Act, the more serious the offence committed, the greater the public interest is in their deportation.
41. As the appellant has been sentenced to a period of imprisonment of under four years, the public interest requires his deportation unless Exception 1 or Exception 2 is met: see s.117C(3).
Exception 1: private life
42. The appellant does not meet Exception 1.
43. The appellant has not been lawfully resident in the UK for most of his life. He arrived in 2001 or 2002 at the age of 31. Even allowing for the fact that he was issued with an EEA residence document on 20 January 2003 and subsequently granted ILR on 22 July 2010, by the date of the hearing this amounted to a period of less than 23 years’ lawful residence.
44. In any event, we find that the appellant is not socially or culturally integrated in the UK. Although he previously worked in a hotel kitchen and ran a patisserie with his ex‑wife between 2003 and 2007, and later made further unsuccessful attempts to re‑establish the business, since 2008 his life has been characterised by alcohol and substance misuse and by persistent offending. The PNC report indicates that such offending has continued. There is little evidence that the appellant has made any positive contribution to British society, and his reliance on an interpreter during the hearing casts doubt on his proficiency in the English language.
45. We further find that there are no very significant obstacles to the appellant re‑establishing his (limited) private life in Algeria. We accept that he left Algeria at the age of 13 and now feels more comfortable speaking French. However, French is widely spoken in Algeria, and there is no reason to believe he would be unable to regain fluency in Arabic. We also consider it likely that he retains some cultural familiarity with the country, where he still has family.
46. The appellant’s family ties in the UK consist only of his youngest child, with whom he currently has no contact, and his daughter H, with whom his contact is occasional. By contrast, his mother and sister (who he said has Down’s syndrome) both reside in Algeria. We find it more likely than not that he could live with them on return. At the date of the hearing, H was visiting Algeria with her mother. We therefore find that the appellant could maintain a relationship with her through such visits and via modern means of communication.
47. The appellant said that he occasionally receives financial and emotional support from his adult children who live in France, and we see no reason why that support cannot continue if he was to be removed to Algeria. Furthermore, the appellant has experience working as a pâtissier, which he could draw upon to secure employment in Algeria. The appellant has expressed a desire to work and a letter from the NHS Southwark Assessment and Liaison Team dated 7 April 2022 refers to him informing the Team that he was “back at work”, that his “mental health has stabilised” and that he no longer suffered from suicidal ideation. Before us, the appellant said that while willing to work, he is unable to do so at the moment due to his immigration status. That is not, however, a barrier he would face in Algeria. We have considered his evidence that he suffers from depression, but the evidence before us shows that, at present, this has stabilised. The appellant also confirmed he had not taken drugs for seven months prior to the hearing. No evidence has been provided to show that he would be unable to access treatment for alcoholism or depression in Algeria.
Exception 2: family life
48. The appellant also does not meet Exception 2.
49. We remind ourselves of the self-direction at [46] in the case of MK (section 55 – Tribunal options) Sierra Leone [2015] UKUT 00223 (IAC):
“By way of self-direction, we are mindful that “unduly harsh” does not equate with uncomfortable, inconvenient, undesirable or merely difficult. Rather, it poses a considerably more elevated threshold. “Harsh” in this context, denotes something severe, or bleak. It is the antithesis of pleasant or comfortable. Furthermore, the addition of the adverb “unduly” raises an already elevated standard still higher.”
50. In the present case, the appellant is not in a relationship with a qualifying partner and we find that he does not have a genuine or subsisting relationship with his youngest child, who was born in September 2022, whom he said that he was not allowed to contact until at least 2026 (likely because the child’s mother, WK, whom he has been convicted of battering, has obtained a restraining order against him). While the appellant claimed that he had initiated Family Court proceedings to gain access to his son, he was unable to provide any documentary evidence of this. In any event, there is insufficient evidence before us to show that his son is a qualifying child, i.e. that he is a British citizen or has been continuously living in the UK for at least seven years: see s.117D(1).
51. We accept, however, that the appellant does have a genuine and subsisting relationship with his 13 year old daughter, H. According to the appellant’s unchallenged evidence, he sees her once a week and he sends her £50 fortnightly out of his Universal Credit payment.
52. We are satisfied that it would be unduly harsh for H to return to Algeria with the appellant given that she resides with her mother and, given his addiction issues, the appellant is in no real state to have sole responsibility for her.
53. However, we do not find that it would be unduly harsh for H to remain in the UK with her mother if the appellant were deported. The appellant has produced an undated text or email message from H’s mother, RB, to an individual named Luke, who we assume is his former legal representative. Given the references therein to the appellant’s now ex-partner, WK, being pregnant at the time, it must pre-date the birth of the appellant’s son in September 2022. It is therefore out of date, which lessens the weight we can attach to it. In that message, RB states that H “doesn’t know what happened to her biological dad[,] we do not talk about prison or detention in my house.” She explains that she raised H alone and that H has only had contact with the appellant for the past couple of years, after the appellant’s mother asked whether he could meet his daughter. At that time, the appellant was with WK, who was pregnant with his youngest child, and it appeared to RB that he had turned his life around. H was pleased to see her father and to know that she would soon have a younger brother. The message ends abruptly at this point and does not describe what impact the appellant’s deportation would have on H. The appellant has provided no further evidence addressing this issue. Furthermore, the appellant told the Tribunal that H spends her summers in Algeria, where her mother has family. We therefore find that he could maintain a relationship with H during such visits. Given the precarious, limited and recent nature of their contact in the UK, and the fact that the appellant contributes only modestly to her maintenance, we do not consider that his deportation would cause significant detriment to their family life or to H’s overall well‑being. When not visiting, H can maintain contact with the appellant through modern methods of communication.
Very compelling circumstances
54. As the appellant has been unable to meet Exceptions 1 or 2, we turn to consider whether there are any very compelling circumstances to his case that nevertheless outweigh the public interest in his deportation. In doing so, we have had regard to the relevant considerations set out at [51] of the judgment of the Supreme Court in HA (Iraq) v Secretary of State for the Home Department [2022] UKSC 22 and to the case of OH (Algeria) v Secretary of State for the Home Department [2019] EWCA Civ 1763 at [63] where Irwin J stated that “[a]s a matter of language and logic” the very compelling circumstances test sets “a very high bar indeed”.
The seriousness of the offence
55. On 27 May 2020, the appellant was convicted of breach of a conditional discharge, for which he received a sentence of one month’s imprisonment, and of burglary and theft (dwelling), for which he was sentenced to 20 months’ imprisonment. In the absence of sentencing remarks, we rely on the account of the index offence set out in the OASys report dated 6 October 2020 [RB/49]. That report records, at section 2.1, that at approximately 1:30 am on 1 November 2019, the appellant smashed the bedroom window of a female victim’s flat and entered the room. The victim fled, leaving her laptop behind; when she returned, she found it had been stolen. Section 2.5 of the report notes that the victim, a lone young woman, was confronted in her bedroom by a man in his forties forcing entry through her window. The incident caused her significant distress, leading to anxiety, therapeutic intervention, loss of appetite, and fear of sleeping in her bedroom. She moved out of her flat and became reluctant to return to the same area of London.
56. Although the index offence did not involve violence or sexual conduct, the circumstances – namely, the appellant breaking into a young woman’s bedroom in the middle of the night and the psychological impact of the offence on the victim – together with the length of the custodial sentence imposed, satisfy us that this was a serious offence.
The time elapsed since the offence was committed
57. The index offence was committed on 1 November 2019, more than five and a half years before the remaking hearing. However, we take into account that, according to the PNC report, the appellant has committed several further offences since that date. These include another burglary (May 2020), possession of a knife in a public place (March 2021), assault by beating an emergency worker (July 2021), theft (August 2021), battery (January 2024), and theft (January 2025). At the date of the hearing, he was also due to appear before Croydon Magistrates’ Court for harassment arising from a breach of a restraining order.
Rehabilitation
58. Although the appellant expressed remorse for his offending, we are not satisfied that he has been rehabilitated. We attach little weight to the letter from the probation officer dated 21 October 2022, which states that the appellant had “shown a good level of motivation to desist from offending behaviour and maintain abstinence from illicit drug and alcohol misuse, which had historically caused many issues to him”. The PNC report shows that the appellant continued to offend after that date, and the appellant confirmed to us that he continues to drink, which both undermine the assessment contained in that letter. Similarly, while the OASys report records at page 33 that the appellant posed a low risk of reoffending – whether violent or non‑violent – that assessment was made in 2020 and has not been borne out by subsequent events. We also take into account the breadth of the appellant’s offending, which ranges from theft and burglary to assault and possession of a weapon. We find that, if permitted to remain in the UK, it is more likely than not that the appellant would continue to commit offences. In particular, we find that he poses an ongoing risk to WK: he has previously been convicted of battery against her and, at the date of the hearing, was due to attend court in relation to a further allegation arising from a breach of the restraining order she had obtained.
The appellant’s family life in the UK
59. As already explained in respect of Exception 2, the appellant does not have any partner in the UK and he only has limited family life with his daughter H, who we have found can be expected to remain in the country without the appellant were he to be removed to Algeria.
The length of the appellant’s stay in the UK
60. The appellant has been present in the UK since at least 2002. We accept that is a significant period of time. Nevertheless, for reasons already given when looking at Exceptions 1 and 2, his ties to the country are slight and, from 2008 onwards, his life has been centred around his struggles with addiction and his criminal offending rather than him making any positive contributions to society. Despite his length of residence, at the hearing before us, he preferred to engage in French rather than English, which further casts doubt on his integrative links to the UK.

The appellant’s ties to Algeria
61. We place weight on the fact that the appellant has not lived in Algeria since he was 13 years old. However, he can reasonably be accepted to have retained some knowledge of life in that country and we also take into account that he has his mother and a sister living there. He can reasonably be expected to live with them on return, even if it is only until he has re-established himself in his home country, if necessary with financial support of his adult children in France. The appellant is fluent in French, which is widely spoken in Algeria, and he can reasonably be expected to reacquaint himself with Arabic. According to the appellant, H frequently visits Algeria for extended periods of time because her mother has family there.
Are there any very compelling circumstances?
62. Having conducted a holistic assessment of all the evidence, and in the light of our findings above, we are satisfied that there are no very compelling circumstances in the appellant’s case.
63. Our starting point is the strong public interest in the appellant’s deportation, bearing in mind the seriousness of the index offence and his continuing offending behaviour.
64. On the appellant’s side of the scale, we attach weight to the following:
a. He has been present in the UK since at least 2002, almost all, if not all, of that time lawfully
b. He has not lived in Algeria since he was 13 years old. However, his mother and sister reside there and, for the reasons set out earlier in this decision, the appellant can reasonably be expected to re-establish his private life in that country, if necessary with financial assistance from his adult children in France if required.
c. He has a son and daughter in the UK. However, the weight to be attached to this is lessened by the fact that he has no contact with his son and only limited and, in our view, precarious, contact with his daughter, H. Moreover, his relationship with H can be maintained through visits and modern methods of communication.
d. He suffers from drug and alcohol addiction as well as depression, and has attempted suicide in the past. However, at the date of the hearing, the appellant claims to have abstained from drugs for seven months and the most recent medical evidence – the letter from the Southwark Assessment and Liaison Team dated 7 April 2022 and a letter from his GP dated 23 August 2022 – indicates that his mental health had stabilised and that he was no longer experiencing suicidal ideation or thoughts of self-harm. There is, moreover, no evidence to show that the appellant would be unable to access appropriate treatment in Algeria.
65. Considered cumulatively, these factors fall well short of establishing the very compelling circumstances required to outweigh the strong public interest in the appellant’s deportation.
Conclusion on Article 8 ECHR
66. Having weighed the competing considerations, we are satisfied that any interference with the appellant’s family and private life arising from his deportation to Algeria would be proportionate. The strong public interest in his removal, given the seriousness and persistence of his offending, outweighs the limited nature of his ties to the UK.

Notice of Decision
The appeal under the EEA Regulations is dismissed.
The appeal on human rights grounds is dismissed.

M R Hoffman

Judge of the Upper Tribunal
Immigration and Asylum Chamber

1st April 2026

Annex: The error of law decision

IN THE UPPER TRIBUNAL
IMMIGRATION AND ASYLUM CHAMBER Case No: UI-2025-001902
First-tier Tribunal No: DA/00331/2020

THE IMMIGRATION ACTS

Decision & Reasons Issued:

…………………………………

Before

UPPER TRIBUNAL JUDGE HOFFMAN
DEPUTY UPPER TRIBUNAL JUDGE FARRELLY

Between

SECRETARY OF STATE FOR THE HOME DEPARTMENT
Appellant
and

HL
(ANONYMITY ORDER MADE)
Respondent

Representation:
For the Appellant: Ms J Isherwood, Senior Home Office Presenting Officer
For the Respondent: No appearance

Heard at Field House on 26 June 2025

Order Regarding Anonymity

Pursuant to rule 14 of the Tribunal Procedure (Upper Tribunal) Rules 2008, the respondent is granted anonymity.

No-one shall publish or reveal any information, including the name or address of the respondent, likely to lead members of the public to identify the respondent. Failure to comply with this order could amount to a contempt of court.

DECISION AND REASONS
1. The Secretary of State appeals with permission against the decision of a panel of the First-tier Tribunal (“the panel”) promulgated on 2 October 2024 allowing HL’s appeal against her decisions dated 26 June 2020 and 6 October 2020 to deport him from the UK in accordance with the Immigration (European Economic Area) Regulations 2016 (“the EEA Regulations”).
2. For continuity, we will continue to refer to the parties as they were before the First-tier Tribunal, although it is the Secretary of State who is the appellant in the appeal before the Upper Tribunal. Therefore, HL will be referred to as the appellant and the Secretary of State as the respondent.
Anonymity
3. In the absence of the HL, we have decided to make a precautionary anonymity order. In doing so, we have taken into account the strong public interest in open justice. However, in this case, we note that HL has previously been sectioned on mental health grounds following a suicide attempt in 2021 and we therefore find that the public interest in open justice is outweighed by his interests given that, based on the material before, we cannot be sure whether he continues to pose a risk of harm to himself.
Background
4. The appellant is a citizen of Algeria born in 1970. Aged 13, he moved with his family to France. He arrived in the UK in or around February 2002 and made an unsuccessful asylum claim. On 20 January 2003, he was granted a residence document as the spouse of an EEA national valid until 5 December 2003. On 8 June 2004, his application for settlement under the EEA Regulations was refused. However, on 1 March 2006, the appellant was granted another residence card as the spouse of an EEA national which was valid until 1 March 2011.
5. Since 2008, the appellant has committed several offences in the UK. Following a conviction of burglary, theft and breach of a conditional discharge on 4 February 2020 he was sentenced to 20 months’ imprisonment (“the index offence”). This led to the respondent issuing a Stage 1 notice informing the appellant that he was liable to deportation as a foreign national offender. The appellant did not take up the opportunity to respond to that notice by giving reasons why he should not be deported. Consequently, on 6 October 2020, the respondent issued a Stage 2 decision confirming that he would be deported from the UK.
The appeal to the First-tier Tribunal
6. The appellant appealed the Stage 1 and Stage 2 decisions to the First-tier Tribunal. For various reasons that are not relevant to this decision, the hearing did not take place until 4 September 2024. The appellant appeared in person. On 2 October 2024, the panel promulgated its decision allowing the appellant’s appeal.
7. In summary, the panel found that the appellant was only entitled to the lowest level of protection from deportation under EU law. While the panel acknowledged that the appellant had committed further offences since the index offence had taken place, they did not accept that he posed a present, sufficiently serious threat to society and, consequently, he did not meet the threshold for deportation under the EEA Regulations. In the light of that finding, it was unnecessary for the panel to go on and consider the proportionality of the respondent’s decision. However, they nevertheless gave reasons why, taking into account the circumstances of the appellant’s case, his deportation to Algeria would be disproportionate under EU law. They also allowed his appeal on human rights grounds.
The appeal to the Upper Tribunal
8. The respondent was granted permission to appeal by First-tier Tribunal Judge Parkes on 16 October 2024.
9. The respondent’s single ground of appeal is that the panel had made a material misdirection of law, or had otherwise provided inadequate reasoning, when finding at [51] that the appellant is not a present risk to the fundamental interests of society, including for the following reasons:
a. That finding is undermined by the offences the appellant had committed following the index offence.
b. The finding that the appellant did not pose a present threat was at odds with the panel’s finding at [52] that he poses a sufficiently serious threat and has displayed a propensity for violence.
c. The restraining order put in place in January 2024 to protect the appellant’s ex-partner from him shows that he continues to pose a threat towards her.
10. The respondent also raises another point under this ground, although, in actuality, it concerns a distinct matter: that the panel failed to carry out an analysis under Article 8 ECHR in accordance with the statutory framework set out under s.117C of the Nationality, Immigration and Asylum Act 2002, or may have conflated this with the separate consideration under regulation 27(6) of the EEA Regulations.
The hearing
11. The hearing was listed before us for 10 am. However, there was no sign of the appellant. We therefore pushed the case back to the end of the list while the clerk tried to contact the appellant. The clerk tried two phone numbers for the appellant: the one that was on the Tribunal’s records and one that Ms Isherwood, representing the respondent, provided from the Home Office’s records. Neither number appeared to be active. We therefore satisfied ourselves that the notice of hearing had been correctly served on the appellant. It had been emailed to the appellant using two addresses on 29 May 2025 and posted to him at his residential address in London. (Ms Isherwood told us that the Home Office records erroneously still gave the appellant’s address as HMP Wormwood Scrubs so we were unable to confirm that the address the Tribunal had was the same one the respondent had for him.) There had been no application for an adjournment. By 11 am, the appellant still had not arrived. In the circumstances, we decided that it would be in the interests of justice to proceed with the hearing.
12. We therefore heard submissions from Ms Isherwood only. These are recorded in the record of proceedings.
Findings – Error of Law
The appeal under the EEA Regulations
13. For the following reasons, we are satisfied that the panel made a material error of law in finding that the appellant does not pose a present threat to the fundamental interests of society.
14. The provision of the EEA Regulations relevant to the deportation of EEA nationals, non-EEA family members of EEA nationals and those with a retained right of residence is regulation 27. Paragraph (5) of regulation 27 sets out the principles that must be applied when seeking to deport a person. Of relevance to the present appeal is subparagraph (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”.
15. In considering whether the appellant posed a genuine, present and sufficiently serious threat, at [42], the panel accepted as credible the appellant’s claim that he had stopped using drugs two years prior to the hearing and that he now only drank alcohol occasionally. They found this evidence to be consistent with a letter from his probation officer dated 21 October 2022 that said that he had “shown a good level of motivation to desist from offending behaviour and maintain abstinence from illicit drug and alcohol misuse, which had historically caused many issues to him.” However, as the panel acknowledged at [45], the PNC report disclosed by the respondent showed that the appellant had in fact committed several further offences since the index offence, namely: possession of a bladed article in public in March 2021; assault by beating of an emergency officer in July 2021; shoplifting in August 2021; and battery in January 2024. He was also cautioned in October 2023 for battery.
16. At [46], the panel found that the 2021 offences were committed at a time when the appellant “was still dealing with his addiction and was not in a stable situation”, noting that he had been sectioned for six months from August 2021 following a suicide attempt. At [47], they found that “the offences committed in 2021 were committed in the context of the Appellant’s unstable mental health.” We have doubts as to whether it was open to the panel to find that there was a causative link between the appellant’s 2021 offending and his mental health in circumstances where they acknowledge that there was no expert medical evidence before them. However, this is not a point pursued by the respondent in her grounds of appeal.
17. Instead, the respondent focusses on the panel’s treatment of the January 2024 conviction for battery. At [48], the panel found that the battery was committed against the appellant’s ex-partner, which resulted in a 16-week prison sentence and a protection and restraining order being made against him for three years. (The battery offence that led to the caution in October 2023 was also committed against the ex-partner.) At [50], the panel found that “these offences took place against a particular victim and a restraining order was put in place, which has not been breached by the Appellant”. They went to find, “There is no evidence that the Appellant intends to breach the restraining order and therefore we do not find that at this stage the Appellant is a present threat to his ex-partner”; and, at [51], that the appellant is not a present threat to the fundamental interests of society.
18. We are satisfied that, at [50], the panel took into account an irrelevant consideration in finding that the appellant had only committed battery against a “particular victim.” We do not accept that it is relevant whether a present risk is directed at a single person or the general public. Moreover, we are satisfied that it was not open to the panel to find that the appellant did not pose a present risk to his victim because she was protected by a restraining order and there was “no evidence that the Appellant intend[ed] to breach” it. As the Court of Appeal (per Warby LJ with whom Baker and Elisabeth Laing LJJ agreed) held in AA (Poland) [2024] EWCA Civ 18 at [55]:
“…In my view, Restivo was rightly decided on this point and the reasoning applies to the present case. Measures such as imprisonment, licence conditions on release, SHPOs, and notification requirements are all put in place because a person poses a threat to one of the fundamental interests of society. The existence of such measures is relevant because they involve a recognition of that threat and the need to prevent, manage, or mitigate it. But the preventative or mitigating effects that such measures may have are not themselves material to the question of what level of threat exists…”
19. That is exactly the trap that the panel fell into in this case. They erred by treating the restraining order preventing the appellant from contacting his ex-partner as a measure that mitigated the present threat he posed rather than being a measure that recognised that he did pose a present threat to her.
20. At [52], the panel accepted that the nature of the appellant’s post-index offending did pose a sufficiently serious threat, but they did not accept that it was a present one. We have some sympathy with the respondent’s submission that it is difficult to see how the appellant can pose a sufficiently serious risk, but not a present one, but we are in any event satisfied from reading [52] that but for their error in finding that the risk was not present, the panel would otherwise have concluded that the condition set out in regulation 27(5)(c) of the EEA Regulations had been met.
21. The respondent has not challenged any of the findings made at [53] to [57] which set out the factors that the panel found weighed in the appellant’s favour when considering the proportionality of the respondent’s decision, including that he had been in the process of re-establishing contact with his daughter; he had not lived in Algeria since he was 13; and he had lived in the UK since 2002. However, we are satisfied that the errors made by the panel in assessing whether the appellant poses a genuine, present and sufficiently serious threat necessarily means that the proportionately assessment could not have been carried out correctly because the appellant’s circumstances were not properly weighed against the public interest factors.
22. The error of law is therefore a material one.
The human rights appeal
23. At no point in the panel’s decision do they refer to, or make any findings in respect of, Article 8 ECHR. It is simply stated under the “Notice of Decision” heading that, as well as being allowed on EU law grounds, the appeal had also been allowed on human rights grounds. It may be that no findings were made in relation to Article 8 because the panel believed that in the light of their findings that the appellant did not meet the threshold for deportation under the EEA Regulations, any interference caused to his family or private life in the UK resulting from his deportation would not be in accordance with the law. However, it was incumbent on the panel to give reasons for their human rights decision. This might not have amounted to a material error of law had the panel given sustainable reasons for finding that the appellant did not meet the threshold for deportation under the EEA Regulations. But in the light of our findings above that the panel did err in relation to their consideration of regulation 27(5)(c), we find that this materially infected their approach to Article 8 as well.
Remaking
24. We are satisfied that none of the panel’s findings can be preserved. When considering whether the remaking of the appeal should be remitted or retained we have had regard to the fact that it took almost four years for the appellant’s first appeal to be heard by the First-tier Tribunal (see [15] to [23] of the panel’s decision for the reasons for this). Given the current backlog of cases in the First-tier Tribunal, it is quite possible that further delays will follow if the appeal is remitted, which would be inimical to the overriding objective and the interests of justice. We also find that the extent of fact-finding is not so significant that the appeal should be remitted. The key issues involve a consideration of the nature, if any, of the risk the appellant currently poses and, if that threshold is met, a consideration of the factors that the appellant will say make his deportation disproportionate under EU or human rights law. Therefore, applying paragraph 7.2 of the Practice Statements of the Immigration and Asylum Chambers of the First-tier Tribunal and the Upper Tribunal, we are satisfied that the appeal should be reheard de novo by the Upper Tribunal.

Notice of Decision
The decision of the First-tier Tribunal involved the making of material errors on a point of law.
The decision of the First-tier Tribunal is set aside with no findings preserved.
The appeal is to be reheard by the Upper Tribunal.
Directions:
1. The remaking of this appeal is to be listed for the first available date at Field House with a time estimate of 6 hours.
2. Any updating evidence either party wishes to rely upon must be electronically filed with the Upper Tribunal and served on the other party 21 days prior to the remaking hearing.
3. HL is to file and serve a skeleton argument, if so advised, no later than 14 days before the resumed hearing.
4. The Secretary of State is to file and serve a skeleton argument, if so advised, no later than 7 days before the resumed hearing.
5. HL shall be provided with an Algerian Arabic interpreter.

M R Hoffman

Judge of the Upper Tribunal
Immigration and Asylum Chamber

30th June 2025