Tribunal decisions

The decision

IN THE UPPER TRIBUNAL
IMMIGRATION AND ASYLUM CHAMBER
Case No: UI-2025-002540

First-tier Tribunal No: EA/50724/2023
LE/03410/2024

THE IMMIGRATION ACTS

Decision & Reasons Issued:
On 26 February 2026

Before

UPPER TRIBUNAL JUDGE OWENS

Between

Secretary of State for the Home Department
Appellant
and

Viktors Pokrasenko
(NO ANONYMITY ORDER MADE)
Respondent

Representation:
For the Appellant: Ms Rushforth, Senior Presenting Officer
For the Respondent: Ms Atas, Counsel instructed by Direct Access

Heard at Cardiff Civil Justice Centre on 15 December 2025

DECISION AND REASONS
1. For reasons of clarity I will refer to the appellant as the Secretary of State and the respondent as Mr Pokrasenko.
Decision under Challenge
2. The Secretary of State appeals with permission against a decision of the First-tier Tribunal dated 25 March 2025 allowing Mr Pokrasenko’s appeal against a decision by the Secretary of State dated 31 August 2023 to refuse to revoke the deportation order against him pursuant to Regulations 27 and 34 of the Immigration (European Economic Area) Regulations 2016. The decision was also taken on Article 8 grounds. Permission to appeal was granted on 5 June 2025.
Background
3. I set out the facts in some detail as they are unusual. Mr Pokrasenko is a Latvian national who claims to have entered the UK in 2004 when he was 15 years old, travelling on his own from Latvia. His father was at that time deceased. He was initially homeless for a short period and then gained employment.
4. On 26 April 2006, Mr Pokrasenko was convicted of driving a motor vehicle with excess alcohol for which he received an absolute discharge and was disqualified from driving for 12 months.
5. In 2009, Mr Pokrasenko was arrested in connection with ABH. At the date of this incident he was 19 years old. Three days into the trial, he absconded and returned to Latvia. On 15 October 2009 he was sentenced to 18 months imprisonment in his absence. A warrant was issued.
6. Mr Pokrasenko claims to have left the UK for a period of just three weeks before returning to the UK. On his return, he found it difficult to find work because of his conviction. He decided to change his name by deed poll which he did on 9 April 2013. He applied for an EEA Registration certificate in his new name on 24 June 2016 which was issued on 11 August 2016. On 30 March 2019, he applied under the EUSS settlement scheme and was granted indefinite leave to remain on 1 April 2019.
7. After returning to the UK in 2009, he worked until he was apprehended in 2021 at which point he was charged with failing to surrender to custody at the appointed time (pertaining to the conviction in 2009). On 17 February 2021, he was sentenced to the original sentence for ABH (18 months) and he was also sentenced to 2 months imprisonment for failing to surrender. He received a sentence of 20 months imprisonment in total.
8. He was remanded in custody on 17 February 2021. Having been served with a stage 1 deportation letter, Mr Pokrasenko made lengthy submissions supported by evidence of his rehabilitation and family ties as to why he should not be deported
9. The appellant was served with a stage 2 deportation letter on 14 July 2021. The appellant did not appeal. He decided to leave the UK voluntarily under the early removal scheme having signed a disclaimer. A deportation order was obtained on 19 July 2021 and served on the same day.
10. He was deported to Latvia on 16 August 2021. By this point he had served six months of his custodial sentence. He has not returned to the UK since then.
11. Mr Pokrasenko has a daughter from a previous relationship who was born on 31 December 2007. He has been heavily involved in her life visiting her regularly, taking her on holiday and providing financial support.
12. He entered into a relationship with his wife Gabrielle in 2018. They were married on 9 August 2019 and they have a child born on 26 October 2020. Both his wife and child are British. During the period from 2017 to 2021, Mr Pokrasenko purchased his own home, supported his wife and child, and worked as a site manager for Autoclenz and then as a manager for EVS Valeting. He was also involved in the World Association of Kickboxing Organisation (“WAKO”) and competed well as mentoring other kickboxers.
13. After he was deported in 2021, he, his wife and his child relocated to Malta and then to Ireland. Mr Pokrasenko’s wife and child more recently have been living between Ireland and the UK mainly because Mrs Pokrasenko needs to take professional qualifications to work as an optometrist in Ireland and she does not have the time to undertake the course because she has a young child and needs to work to support the family. By the time that the appeal came before the First-tier Tribunal in 2025 she was also pregnant with the couple’s second child.
14. On 14 July 2022, Mr Pokrasenko applied to revoke the deportation order leading to the decision under appeal by the Secretary of State dated 31 August 2023.
The decision to deport – Secretary of State’s decision
15. In the deportation decision dated 21 July 2021, the Secretary of State accepted that the appellant had acquired permanent residence under the EEA Regulations.
16. In the decision dated 31 August 2023 the Secretary of State decided not to revoke the deportation order. She was not satisfied that there had been a material change in the circumstances that justified the making of the deportation order. Her view was that the offence of ABH is serious, Mr Pokrasenko is capable of causing psychological harm to others, he is not rehabilitated and he continues to pose a risk of harm to the public. He used deception to obtain his registration certificate and indefinite leave to remain by failing to declare his change of name and previous convictions. He poses a risk of reoffending. He is considered to represent a genuine, present and sufficiently serious risk to the safety of the public. In this second decision, the Secretary of State took the view that Mr Pokrasenko’s residence has been broken by virtue of his deportation. He has not demonstrated social or cultural integration into the UK. He can reside in Latvia or in the Republic of Ireland.
17. Further, it was considered that the appellant did not meet either of the Exceptions at s117C of the 2002 Act, nor that there were very compelling circumstances over and above the Exceptions.
Mr Pokrasenko’s position
18. Mr Pokrasenkos’s position is that he has obtained permanent residence in the UK and that he also resided in the UK for a continuous period of ten years. His deportation can only be justified on ‘imperative’ or “serious” grounds of public policy, public security and public health. The offence prompting the decision to deport took place in 2008 when he was 19 years old. He is now 36. In the intervening period, he has matured. He asserts that there has been a material change in the circumstances which justified the making of the revocation order. He claims to be rehabilitated. He is not a current risk to the community. He has a British child and he has also established a strong private and family life in the UK.
First-tier Tribunal decision
19. At [6], in line with the respondent’s review, the judge identified that the issues in dispute were:
(i) whether Mr Pokrasenko had demonstrated that there had been a material change in the circumstances that justified the making of the deportation order in accordance with Regulation 34(3)of the 2016 Regulations and;
(ii) whether the refusal to revoke the deportation order breaches Article 8 ECHR.
20. The judge found that there had been a material change in the circumstances which justified the making of the deportation order. The judge found that the appellant had the “highest” or alternatively the “middle” levels of protection. The judge found that at the current time the appellant does not constitute a sufficiently serious risk to the UK for the reasons given in the decision. The judge allowed the appeal pursuant to the EEA Regulations and Article 8 ECHR.
The Grounds of Challenge
21. The Secretary of State submits that the decision of the First-tier Tribunal is flawed for the reasons set out in the grounds below. Ms Rushforth relied on the written submissions and following an indication from me did not amplify these in oral submissions apart to clarify that she did not pursue the ground relating to Article 8.
Ground 1 - Legal misdirection/Failing to resolve conflict in the evidence/provide adequate reasons.
a) It was a material error at [14] for the judge to find that “significant fresh evidence even on matters previously considered in the decision letter and which predate the deportation, is capable of amounting to a material change in circumstances that justified making the order”.
b) The judge should have considered relevant factors for assessing “material change” for instance evidence of significant rehabilitation, a demonstrable reduced risk of reoffending, strong family connections in the UK or integration into UK society. The judge erred by applying the principles of paragraph 353 of the immigration rules.
c) The judge “failed to grasp the fact” that the appellant absconded from justice, changed his name and returned to the UK in 2009 and 2011.
d) The judge failed to resolve the inconsistency in the evidence about the date on which the appellant returned to the UK and failed to provide adequate reasons why the inconsistency in the evidence was discounted.
e) The judge “did not appreciate” that the revocation letter considers the issue of previous leave and the argument that the Secretary of State would not have granted Mr Pokrasenko leave if she had known the truth. This was clear from the refusal.
f) The judge erred by failing to apply the correct approach to concessions and the assessment of integration in the ten years prior to the deportation decision. It should be clear from the decision what has been conceded.
g) The judge failed to have regard to headnote A3 Abdullah and Ors (EEA; deportation appeals; procedure) [2024] UKUT 00066. The leave acquired by Mr Pokrasenko was not lawful because of his deception. The leave that Mr Pokrasenko relies on for demonstrating that he had acquired ten years residency could not be in accordance with the EEA Regulations.
h) In assessing whether Mr Pokrasenko had acquired ten years residency, (and therefore the highest level of protection) the judge misdirected herself by failing to count backwards from 12 August 2021. There was a four year absence from the UK. An individual who has served time in custody must not only show that he has ten year’s continuous residence but that he was sufficiently integrated in the host state even when he was in custody.
i) The judge failed to give adequate reasons why the appeal would succeed under Article 8 ECHR if she was wrong under the application of EEA law.
The error of law hearing
22. This hearing was held in a hybrid fashion. Mr Pokrasenko’s representative appeared remotely via video link and Mr Pokrasenko viewed the hearing by video link from Ireland. Ms Rushforth attended in person. Neither party objected to the hearing being held by video link. Neither party complained of any unfairness during the hearing and any technical issues were swiftly remedied. Both parties confirmed that they had sight of the documentation and relied on their written submissions.
Decision on error of law
23. Having carefully considered the written and oral submissions made to the Tribunal and the relevant parts of the decision, I have concluded for the reasons that follow that the decision does not contain a material error of law and shall stand.
General principles
24. The Court of Appeal has recognised that the First-tier Tribunal is a specialist fact-finding tribunal, and the Upper Tribunal is required to exercise judicial restraint in its oversight of its reasoning: In Ullah v Secretary of State for the Home Department [2024] EWCA Civ 201; [2024] 1 W.L.R. 4055 (‘Ullah’) Green LJ, with whom Lewison and Andrews LJJ agreed, stated at [26]:
“Sections 11 and 12 TCEA 2007 Act restricts the UT’s jurisdiction to errors of law. It is settled that:
(i) the FTT is a specialist fact-finding tribunal. The UT should not rush to find an error of law simply because it might have reached a different conclusion on the facts or expressed themselves differently: see AH (Sudan) v Secretary of State for the Home Department [2007] UKHL 49 [2008] 1 AC 678 at paragraph [30];
(ii) where a relevant point was not expressly mentioned by the FTT, the UT should be slow to infer that it had not been taken into account: e.g. MA (Somalia) v Secretary of State for the Home Department [2010] UKSC 49 at paragraph [45];
(iii) when it comes to the reasons given by the FTT, the UT should exercise judicial restraint and not assume that the FTT misdirected itself just because not every step in its reasoning was fully set out: see R (Jones) v First Tier Tribunal and Criminal Injuries Compensation Authority [2013] UKSC 19 at paragraph [25];
(iv) the issues for decision and the basis upon which the FTT reaches its decision on those issues may be set out directly or by inference: see UT (Sri Lanka) v The Secretary of State for the Home Department [2019] EWCA Civ 1095 at paragraph [27];
(v) judges sitting in the FTT are to be taken to be aware of the relevant authorities and to be seeking to apply them. There is no need for them to be referred to specifically, unless it was clear from their language that they had failed to do so: see AA (Nigeria) v Secretary of State for the Home Department [2020] EWCA Civ 1296 at paragraph [34];
(vi) it is of the nature of assessment that different tribunals, without illegality or irrationality, may reach different conclusions on the same case. The mere fact that one tribunal has reached what might appear to be an unusually generous view of the facts does not mean that it has made an error of law: see MM (Lebanon) v Secretary of State for the Home Department [2017] UKSC 10 at paragraph [107].”
25. I remind myself of the limited circumstances in which an appellate Tribunal may interfere with findings of fact and credibility by the First-tier Judge, who saw and heard the Appellant give her evidence. In Volpi & Anor v Volpi [2022] EWCA Civ 464; [2022] 4 W.L.R. 48 (‘Volpi’) Lewison LJ, with whom Males and Snowden LJJ agreed, explained interference with findings of fact and credibility is appropriate only where such a finding is ‘plainly wrong’ or ‘rationally insupportable’ at [2]-[5]:
“The appeal is therefore an appeal on a pure question of fact. The approach of an appeal court to that kind of appeal is a well-trodden path. It is unnecessary to refer in detail to the many cases that have discussed it; but the following principles are well-settled:
(i) An appeal court should not interfere with the trial judge's conclusions on primary facts unless it is satisfied that he was plainly wrong.
(ii) The adverb “plainly” does not refer to the degree of confidence felt by the appeal court that it would not have reached the same conclusion as the trial judge. It does not matter, with whatever degree of certainty, that the appeal court considers that it would have reached a different conclusion. What matters is whether the decision under appeal is one that no reasonable judge could have reached.
(iii) An appeal court is bound, unless there is compelling reason to the contrary, to assume that the trial judge has taken the whole of the evidence into his consideration. The mere fact that a judge does not mention a specific piece of evidence does not mean that he overlooked it.
(iv) The validity of the findings of fact made by a trial judge is not aptly tested by considering whether the judgment presents a balanced account of the evidence. The trial judge must of course consider all the material evidence (although it need not all be discussed in his judgment). The weight which he gives to it is however pre-eminently a matter for him.
(v) An appeal court can therefore set aside a judgment on the basis that the judge failed to give the evidence a balanced consideration only if the judge's conclusion was rationally insupportable.
(vi) Reasons for judgment will always be capable of having been better expressed. An appeal court should not subject a judgment to narrow textual analysis. Nor should it be picked over or construed as though it was a piece of legislation or a contract.
Discussion and Analysis
General comments
26. I found the grounds confusing and difficult to understand in places because of the loose drafting. I have dealt with them as I understand them. It is important that grounds correctly identify the error of law in accordance with R (Iran) & Ors v SSHD [2005] EWCA Civ 982 and that they are pleaded concisely with reference to the relevant paragraphs in the decision under challenge.
27. Secondly, and importantly, in this appeal, the judge had before her a “sea of evidence”. The judge heard evidence from Mr Pokrasenko, his wife, his wife’s grandmother, a Mr Graveris and a Mr Masel. There was also a large bundle of supporting evidence in respect of Mr Pokrasenko’s wife, his relationship with his children, his activities for the boxing club and the positive contributions that Mr Pokrasenko has made to the UK. The bundle also included the sentencing remarks made by the criminal judge on 17 February 2021 that he had “turned his life around”. There was also a social work report detailing the difficulties being experienced by the appellant’s young son. The judge manifestly found the evidence to be impressive.
28. The evidence before the judge included:
a) Criminal record
b) The sentencing remarks at Taunton Crown Court in 2021
c) Court of Appeal criminal division decision reducing Mr Pokrasenko’ co-accused’s sentence to a suspended sentence.
d) A long letter written by Mr Pokrasenko explaining the background to his offending, how he has changed, and detailing his regret and rehabilitation, his behaviour in custody, evidence that he was on the enhanced wing, and an explanation for why he did not appeal the decision to deport in 2021
e) All prison records including evidence of good behaviour and certificates
f) A letter from the Irish Security Service confirming that he had not offended in Ireland
g) A certificate from the authorities in Malta to demonstrate that he had not offended
h) A certificate of completion of anger management course dated 1 September 2023
i) Evidence of the strong relationship between Mr Pokrasenko and his older daughter Aleksandra Bortnikova including photographs of them on holiday, letters from her, witness statement from Mr Pokrasenko, his wife and other family members. This includes evidence that the child was in weekly contact with her father and regularly went swimming, to the gym and on trips as a family with he and his wife and her family members. The daughter also explained the impact on her of her father’s deportation and continued exclusion from the UK.
j) Evidence of his stable family life in the UK including his relationship with his British partner which commenced in November 2018, the engagement on 14 April 2019 and marriage on 9 August 2019 (witness statements and photographs, letters and emails).
k) Evidence of the birth and baptism of their British child Ivan on 26 October 2020 and 15 November 2020 respectively. The child was born slightly premature.
l) School application forms for Ivan.
m) Pregnancy scans in respect of the second unborn child
n) A report from Social Workers without Borders dated 18 April 2024 on the effect of the familial circumstances on Ivan and his mother including the negative emotional impact on Ivan from moving between Ireland and the UK and the impact on him of his mother’s low mood.
o) A letter from Joanna Berry Specialist Community Public Health Nursing confirming that Mrs Pokrasenko had post-natal depression and needed additional interventions to support her low mood including listening visits. Evidence of the support provided by Mr Pokrasenko during this period (wife’s statement/oral evidence).
p) Evidence of the family’s stable financial position prior to the deportation, including ownership of a home, the payment of bills including Council tax, evidence of secure income including a letter from Earlham and Christopher Optometrists and Contact lens specialist confirming Mrs Pokrasenko’s employment as a qualified optometrist with a salary of £38,000 per annum and letters from Autoclenz and EVS Valeting regarding Mr Pokrasenko, contracts of employment, tax returns, national insurance documents and bank statements
q) Employment certificates obtained by Mr Pokrasenko
r) Evidence of the difficulties experienced by Mrs Pokrasenko due to Mr Pokrasenko’s imprisonment, deportation and exclusion from the UK including the impact on her emotionally as well as the financial pressures (witness statements).
s) Witness statement from Mrs Pokrasenko’s mother on the effect of the deportation
t) Letter from a consultant physician at Weston General Hospital dated 18 July 2019 detailing Sylvia Cole’s (grandmother-in-law) ill health including evidence of severe CPOD and previous treatment for lung cancer in 2018. A letter from her GP dated 27 November 2023 in respect of an attempted overdose. A witness statement from her explaining how the family’s relocation from the UK because of the deportation had impacted on her
u) Letters from other family members – sister in law
v) Letter from the Memory Service North Sedgemore regarding Alan May’s (grandfather in law) diagnosis of Alzheimer’s in February 2021 (now deceased)
w) A letter from Dawid Masel in respect of Mr Pokrasenko’s involvement with WAKO, the kickboxing community and his voluntary and motivational work with vulnerable children and adults
x) Evidence of his assistance to the Siggiewi rowing club in Malta
y) Multiple character references from family members and friends explaining how Mr Pokrasenko has had a positive impact on their lives.
z) Change of name deed
29. It is very clear from the decision that the judge was persuaded by the plethora of evidence before her that Mr Pokrasenko was a credible witness contrary to the submission of the Secretary of State. She accepted his evidence in its entirety, including his explanation for the circumstances surrounding the 2008 offence, his decision to change his name and his decision not to appeal the deportation decision in 2021.
30. The main focus of the grounds is on the misapplication of the law in respect of a “material change of circumstances” and assertions that the judge is said to have overlooked factors raised by the Secretary of State in relation to the imperative grounds of protection. The grounds do not challenge the judge’s primary factual findings, apart from an assertion that the judge did not resolve a conflict in the evidence about the date when he returned to the UK in 2009. I will deal with this ground first.
Ground 1(d) Failure to resolve a conflict in the evidence about when the appellant returned to the UK?
31. At [26], the judge notes that the Secretary of State took issue with Mr Pokrasenko’s residence prior to 2014 and whether he was exercising Treaty rights during that period. At [27], the judge noted that the appellant’s evidence was that he returned to the UK in August 2009. The judge was clearly aware that there was a conflict in the evidence.
32. The judge took into account that there was limited documentary evidence to support the date of re-entry. The judge acknowledged the difficulties in records being destroyed but considered that it would have been open to the appellant to provide more documents. The judge noted that the standard of proof is the balance of probabilities. He took into account Mr Pokrasenko’s written and oral evidence about his residence in the UK and the oral submissions. At [28(ii)], he noted that Mr Pokrasenko’s evidence was not challenged directly in the hearing. He noted that Mr Pokrasenko gave a straightforward and internally consistent account of how he came to the UK and his circumstances since. The judge carefully considered all of the evidence supplied in support of his residence at [28(iii)] noting that less weight could be given to the evidence of individuals who had not attended for cross examination. At [29] the judge stated:
“I am satisfied to the requisite standard that the appellant was clearly resident in the UK from approximately 2004 until he absconded from the trial in 2009. I am similarly satisfied to the requisite standard that the contemporaneous documentation supports the appellant having been resident in the UK from early 2013 onwards when he changed his name by deed poll and opened various accounts and services in his new name. There is demonstrably less documentary evidence in respect of the appellant’s claimed residence in the UK between August 2009 and April 2013. That evidence comprises some limited photographs and letters of support from various individuals who, with the exception of Mr Masel did not attend for cross examination. Whilst I maintained that it would have been open to the appellant to provide further evidence of his attendance during this period, in considering such evidence as is available as well as the manner in which the appellant and Mr Masel gave evidence, I accept the appellant’s account. I find that it is indeed more likely than not that he has in fact been continually resident in the UK and accessing his treaty rights since he first arrived in the United Kingdom in 2004... “(my emphasis)
33. The judge was manifestly aware that there was a conflict in the position of the parties, the judge took the evidence into account, giving appropriate weight to the evidence and noting gaps in the evidence, but overall found that the limited evidence together with the evidence of Mr Pokrasenko and the witness were sufficient. The judge’s finding is manifestly adequately reasoned and was rationally open to her on the evidence before her. Ground 1(d) is not made out.
Ground 1(a)-Material error – misdirection on material change in circumstances
34. It was common ground between the parties that in order to succeed on his appeal Mr Pokrasenko would need to demonstrate that he met Regulation 34(3) of the immigration EEA Regulations 2016. This was one of the principal controversial issues in the appeal
35. The judge set out the relevant provisions of the EEA Regulations at [9] to [11]. The judge identified at the outset of the decision that the issue was whether there had been a “material change of circumstances that justified the making of the order”.
36. At [14(i) to (v)] the judge set out in detail the factors relied on by the Secretary of State that justified making the deportation order. These related to Mr Pokrasenko’s history of criminal offending, his flouting of UK law and the lack of rehabilitation. The judge noted that the Secretary of State was of the view that the appellant represented a sufficiently serious threat because he had absconded from sentencing, previously took part in risk taking behaviour in April 2006, the offence of ABH was serious and the appellant had not participated in rehabilitation courses in custody. The Secretary of State’s position was that there was a risk of him reoffending and he continued to pose a risk of harm.
37. At [17] onwards the judge turned his mind to what might constitute a change of circumstances.
38. The judge manifestly disregarded Mr Pokrasenko’s submission that the original deportation decision was deficient and agreed at [18] and [19] with the Secretary of State that a “change of mind” in the absence of anything else would be unlikely to amount to a material change in circumstances.
39. The judge found at [17] that:
“significant fresh evidence on matters which pre-date the deportation decision is capable of amounting to a material change in circumstances that justified the making of the order and that the date of the documents and evidence cannot be determinative of the test under Regulation 34(3).”
40. The judge noted that there was no guidance on this. The judge noted that Mr Pokrasenko did not appeal the deportation order but finds that this cannot preclude him from considering material pre-dating the deportation order. The judge then at [21] relied on various pieces of evidence which related to the Mr Pokrasenko’s circumstances prior to the decision to deport but that were not provided to the Secretary of State at that time.
41. I am in agreement that the judge’s finding that “evidence that was available before the decision to deport but not before the Secretary of State is capable of amounting to a material change, consistent with the fresh claims test at paragraph 353” of the immigration rules is a misapplication of the law. Firstly Mr Pokrasenko had a right of appeal in 2021 which he failed to exercise. He had the opportunity to adduce this evidence in 2021 but chose not to. The Secretary of State’s position in 2021 that Mr Pokrasenko constituted a sufficiently serious risk to the UK and that there was a risk of reoffending was not challenged. Secondly, paragraph 353 of the immigration rules has no application to the issues in this appeal and was not identified as an issue by the parties prior to the hearing.
42. I am satisfied that the meaning of Regulation 34(3) is that the “material change in circumstances” must include matters that have arisen since the earlier deportation decision was taken. In this appeal, it was for Mr Pokrasenko to demonstrate that there was a material change of circumstances which meant he no longer poses the sufficiently serious threat that he posed in 2021 when the earlier decision was made.
43. However, I am not satisfied that this misdirection is material. This is because the judge also relied on the following material changes of circumstances at [44] all of which postdated the decision to deport. In line with the respondent’s submission set out in the grounds of appeal, rehabilitation, a reduced risk of reoffending, family ties in the UK and strong connections to the UK can amount to material changes. The judge could have probably structured his decision more logically by listing these factors earlier in the decision, however a less than perfect structure does not render a decision unlawful.
44. At [42b] there is a heading “Other evidence as to material changes in the circumstances that justified the deportation order”.
45. At [44] the judge repeats the factors focussed on by the Secretary of State when assessing the risk of re-offending in the original decisions and then goes onto list other material changes of circumstances. These include:
a) The profound negative consequences of his deportation on the family unit including Mr Pokrasenko’s wife, his children, his mother in law and grandmother in law, and the family finances. The judge found that the recognition of the difficulties that the family faced because of his actions was a strong disincentive for Mr Pokrasenko to reoffend.
b) Mr Pokrasenko’s wife is expecting a second child (who will also be British)
c) The report from the social worker dated 18 April 2024 setting out the impact on the family, particularly the negative impact on the appellant’s young son who is travelling between his mother and father in Ireland and the UK
d) The evidence from the Irish, Latvian and Maltese authorities indicating that Mr Pokrasenko has not offended since he left the UK.
e) The evidence of the appellant’s completion of an anger management course after the decision and the additional evidence of high level martial arts which the appellant’s evidence is assists him to control his emotions.
46. The judge has manifestly also found that there has been “a material change in circumstances” since the deportation order which is the meaning that the Secretary of State attributes to Regulation 34(3). The factors raised and relied on by the judge including evidence of the lack of further offending, rehabilitation and a change in family circumstances are manifestly capable of amounting to material changes which go to the reasons justifying the original decision. I have no hesitation in finding that the judge would have inevitably found that Regulation 34(3) was satisfied based on the existence of these factors alone and excluding any further evidence of matters not before the Secretary of State in 2021. Ground 1(a) is not a material error for these reasons.
Ground 1(c) The judge “failed to grasp the fact” that the appellant absconded from justice, changed his name and returned to the UK in 2009.
47. This ground is insufficiently pleaded. As I understand it, it is an assertion that the judge failed to take these factors into account when assessing risk. The judge was manifestly aware of the immigration chronology set out at [2(i) to (xi)] and of these adverse factors which were set out in the refusal letter. The judge deals head on with Mr Pokrasenko’s evidence in respect of these issues and makes appropriate findings at [27], [30], [40(ii)]. This ground amounts to a disagreement with the weight that the judge attributed to various factors. It is trite that weight is a matter for the judge. This ground is not made out.
Ground 1(e) The judge “did not appreciate” that the revocation letter considers the issue of previous leave and the argument that the Secretary of State would not have granted Mr Pokrasenko leave if she had known the truth.
48. It is clear from reading the decision that the judge was also manifestly aware of the position of the Secretary of State in respect of this issue. The judge considered this arguments and deals with it. In any event the grounds misconstrue the issue. The refusal letter reads “Had UKVI been aware of the aforementioned, you may have been refused leave under the EUSS scheme on grounds of suitability.”. This ground reads as a disagreement with the decision and is not made out.
Ground 1(g)- The judge failed to have regard to Abdullah and Ors (EEA; deportation appeals; procedure) [2024] UKUT 00066 and the effect this may have had on the finding that Mr Prosenko had acquired ten years residency.
49. This ground is said to relate to the judge’s calculation of ten years residence only (which I deal with below (ground 1(h)), asserting that there was an error in the judge’s approach to imperative grounds. There is no reference in the ground of appeal to this error infecting the permanent residence findings.
50. At [6] the judge recorded that both parties confirmed that there is no dispute that the Immigration (European Economic Area Regulations 2016 (“the 2016 Regulations”) applies to this appeal. It is not apparent from the grounds of review or from the judge’s decision that any submissions were made on Abdullah during the hearing or that this authority was raised as an issue in the appeal. This ground appears to be an attempt to raise an issue which was never agreed to be an issue before the judge and to reargue the appeal. This ground is not made out.
Ground (h)- Misapplication of the law – ten year’s residency/calculation of integrative links
51. At [24] the judge considered whether Mr Pokrasenko had acquired the highest level of protection ie whether his deportation could only be justified on “imperative” grounds. The judge noted correctly that the calculation of residence was by counting backwards from the date of the deportation decision which was 21 July 2021 ( not the August date referred to erroneously in the grounds). The judge found that the custodial sentence ‘pressed the pause button’ for the calculation of ten years continuous residence but found that Mr Pokrasenko had returned to the UK no later than the start of 2011 and therefore had accrued ten years continuous residence prior to his sentence and therefore he had acquired the top level of protection. At [31] the judge found that Mr Pokrasenko’s integrative links to the UK predated his name change and changing his name did not break those links.
52. The judge found at [29] and [32] that Mr Pokrasenko’s deportation could only be justified on “imperative” grounds.
53. I agree with the Secretary of State that the judge erred in the assessment of whether the integrative links had been broken. Although the judge directed himself to B [2018] EUECJ C-316/16 and Hafeez v SSHD [2020] EWCA Civ 406 and calculated that Mr Pokrasenko had been living continuously in the UK for a period of ten years prior to his incarceration (and I have found his factual findings on residence to be unimpeachable) he did not consider whether Mr Pokrasenko’s incarceration on 17 February 2021 broke his integrative links. The judge should have looked back ten years from the date of the decision which was 8 July 2021, taking into consideration the period of imprisonment from February 2021 until July 2021 and made a holistic assessment of all of the factors pointing to or against the breaking of integrative links. I am satisfied that the judge did not do this and therefore his finding that Mr Pokrasenko obtained the imperative grounds of protection is flawed and I set this finding aside. (Had the judge made this assessment properly he may well have considered that the integrative links were not broken but I cannot second guess the outcome of such an assessment).
Materiality of error
54. However this error in respect of ten year’s continuous lawful residence does not render the overall decision allowing the appeal unlawful, nor is this error material to the outcome of the appeal because at [47] the judge considered in the alternative that if he were wrong about continuous residency for ten years that it had not been established that the deportation was justified on “serious” grounds of public policy and public security, (“ the middle level of protection”).
Ground 1(f)- The concession/permanent residence
55. At [15(ii)] the judge noted that in the original deportation decision, the respondent accepted that Mr Pokrasenko had acquired a right of permanent residence. It is a matter of fact that the Secretary of State accepted that Mr Pokrasenko had been resident in the UK as a qualified national for a period of five years in the 2021 decision. This concession was quite properly made in that decision where his nationality and employment was not disputed and he had changed his name lawfully. (At the date of the 2021 decision the Secretary of State was well aware that Mr Pokrasenko obtained his residence card in his new name as the judge notes at [23]). In any event he had acquired permanent residence by direct effect and the incarceration and conviction on their own did not negate his permanent residency. The issue of residence documents was a different matter.
56. The judge’s paragraph [23] however is rather confused and does not accurately reflect the 2023 letter. The 2023 letter does not explicitly state that Mr Pokrasenko had not acquired permanent residence at the date of the deportation decision, rather it states that had the Secretary of State been aware that he had changed his name and failed to declare his conviction that his applications for residence documents may have been refused on suitability grounds. It is then said that this is immaterial because his deportation has broken his residence. The decision letter then goes onto consider that Mr Pokrasenko poses a current risk. The judge notes that the presenting officer did not expressly in either cross-examination or submissions suggest that the threshold for middle tier protection was not met. In my opinion the respondent’s grounds are incoherent.
57. It seems to me that question of the level of protection was relevant to assessing whether there was a material change of circumstances that justified the making of the order and whether Mr Pokrasenko continued to present a genuine, present and sufficiently serious risk to the UK. The real focus of the appeal was whether there had been a material change of circumstance. I cannot discern any error in the judge’s approach to the issue of permanent residence.
Risk assessment
58. The judge carried out a risk assessment and took into account the following material factors:
a) There was no OASYS report
b) The original offence took place in August 2008
c) Apart from his failure to surrender there were no other offences unrelated to the original offence
d) He has had no interactions with the Irish, Latvian or Maltese authorities since his deportation
e) The judge’s sentencing remarks in 2021 acknowledged he had turned his life around
f) The difficulties in the family trying and failing to relocate over the three and a half years since his deportation is a strong motivating factor for him not to reoffend
g) He has completed work in relation to anger management in September 2023. He was on the enhanced wing in prison indicative of low risk.
h) The positive impact of his martial arts allowing him to channel his anger.
i) The positive work he did with para-athletes whilst in Malta.
j) The lack of any incidents of violent behaviour.
k) The failure to surrender can be regarded as capable of causing public revulsion
59. At [42] the judge concluded that the risk of reoffending was remote.
60. The judge turned to some additional factors at [44]. These included the difficulties that the family had faced following the deportation and his wife’s current pregnancy
61. At [47], the judge stated:
“I have re-considered carefully the question of risk in the event that I'm wrong about the appellant’s continuous residency for 10 years. I refer to my findings in paragraph 40 above. I have taken account of the factors detailed in those findings in the context of this serious grounds/mid-level protection threshold. Taking account of all of the evidence on risk, to include those factors identified in paragraph 40 as well as the full chronology of the appellant’s offence, his wider offending history, conduct and circumstances, I find that it has not been established that the appellant presents a “genuine, present and sufficiently serious threat”. I am not satisfied that the risks of reoffending are serious enough to require deportation and find that serious grounds of public policy and public security have not been established”
62. I can discern no error in the judge’s approach to risk. The judge took into account the relevant material factors and rationally and reasonably found that there was no risk of reoffending and that Mr Pokrasenko does not present a genuine, present and sufficiently serious threat to the UK.
63. Overall, I am satisfied that either the grounds are not made out or that any errors are immaterial to the overall outcome of the appeal. I am satisfied that the judge’s overall finding that there has been a material change of circumstances that justified the making of the order is rational, reasonable and sustainable on the evidence before the judge and certainly not so defective as to justify interference by the appellate court in accordance with the large number of authorities on this issue as set out above.
64. The judge therefore lawfully found that Regulation 34(3) was made out. It was agreed by all concerned that Mr Pokrasenko’s appeal lay under Regulation 26 of the 2006 Regulations. The Judge properly noted that pursuant to Regulation 34(5) “the Secretary of State must revoke the deportation order if the Secretary of State considers that the criteria for making such an order are no longer satisfied”. The judge found that the criteria were no longer satisfied and that in circumstances where the order is no longer justified, the refusal to revoke deportation order inevitably is a disproportionate interference in Mr Prokrasenko’s right to respect for family life pursuant to Article 8 ECHR.
65. As I commented above Ms Rushforth did not pursue the Article 8 ECHR ground at the error of law hearing.
Conclusion
66. It follows that the Secretary of State’s appeal is dismissed.

Notice of Decision
67. The decision of the First-tier Tribunal allowing the appeal in accordance with the EEA Regulations and Article 8 ECHR is upheld.

R J Owens

Judge of the Upper Tribunal
Immigration and Asylum Chamber

26 February 2026