Tribunal decisions

The decision

IN THE UPPER TRIBUNAL
IMMIGRATION AND ASYLUM CHAMBER
Case No: UI-2025-002845

First-tier Tribunal No: EU/56640/2023
LE/04457/2024

THE IMMIGRATION ACTS

Decision & Reasons Issued:
On 10th of October 2025

Before

UPPER TRIBUNAL JUDGE GREY

Between

SECRETARY OF STATE FOR THE HOME DEPARTMENT
Appellant
and

PAWEL FRANCISZEK SKORUPA
Respondent

Representation:
For the Appellant: Ms A. Ahmed, Senior Presenting Officer
For the Respondent: Ms N. Barnes, Counsel instructed by The AIRE Centre

Heard at Field House on 15 September 2025

DECISION AND REASONS
Introduction
1. In this decision I shall refer to the parties as they were in the First-tier Tribunal (“FTT”). I shall refer to Mr Skorupa as the appellant and the Secretary of State as the respondent.
2. This is an appeal brought by the respondent against the decision of the FTT dated 12 May 2025 in which the FTT Judge (“the Judge”) allowed the appellant’s appeal following a hearing held at Taylor House on 31 January 2025.
3. The appellant is a Polish national. On 12 July 2021 he applied for leave to remain under the EU Settlement Scheme (“EUSS”) after the end of the “Grace Period” of 30 June 2021.
4. It is agreed by the parties that the Judge was seized of an appeal in respect of the respondent’s decision dated 18 October 2023 refusing the appellant’s application under the EUSS.
5. The appellant became subject to a deportation order on 18 October 2023 following the refusal of his human rights submissions in response to the respondent’s Stage 1 deportation letter. It is disputed whether the Judge was also seized of an appeal in respect of the refusal of the appellant’s human rights claim. It is not disputed the Judge approached the appeal on the basis that the appellant had exercised his right of appeal under the provisions of section 82 of the Nationality Immigration and Asylum Act 2002 (“NIAA”). The deportation order was made under section 5(1) Immigration Act 1971. It was not made under section 32(5) of the UK Borders Act 2007 as recorded in the decision under appeal.
The decision under appeal (“the decision”)
6. At the start of the decision the Judge refers to the respondent’s decision dated 18 October 2023 to refuse his human rights claim (“the human rights decision”) and states that the appellant has appealed under the provisions of section 82 NIAA. The refusal of the appellant’s EUSS application (“the EUSS decision”) of the same date is also noted at the start of the decision. However, the Judge does not go on to state that the appellant is exercising his right of appeal in respect of the EUSS decision and therefore there is no identification of the grounds of appeal which fell to be determined on this matter.
7. The decision then sets out what the Judge had identified as the issues in dispute in the appeal. It is not recorded in the decision whether these were agreed with the parties at the start of the hearing. At [6] of the decision it states:
6. Schedule of issues in relation to the appellant’s human rights are as follows (my emphasis):
(i) Whether the appellant fulfilled the criteria for indefinite leave to remain in accordance with Appendix EU?
(ii) Whether section (sic) 27 of the EEA Regulations apply?
(iii) Whether the deportation order should be revoked?
(iv) Whether it is disproportionate to refuse the Appellant based on suitability?
(v) Whether the Appellant meets the requirements of the EU settlement scheme?
8. I pause to observe that the Judge described the list of issues as relevant to a “human rights” claim rather than an EUSS application and appeal. Issues (i) to (iv) replicate the list set out in the appellant’s appeal skeleton argument submitted in the FTT proceedings. A further observation is that issue (ii) does not indicate on what basis it was submitted regulation 27 of The Immigration (European Economic Area) Regulations 2016 (“the EEA Regulations”) did apply. In addition, it is not clear on what legal basis “proportionality” referred to at issue (iv) fell to be considered because this paragraph refers to “the appellant’s human rights”. “Proportionality” is relevant to both Article 8 ECHR and an assessment under regulation 27(5)(a) of the EEA Regulations.
9. Having set out these issues in the decision, under a sub-heading “Burden and Standard of Proof” the Judge then sets out the legal framework in relation to Article 8 ECHR, including detail in relation to the exceptions to deportation under section 117C(4) and (5) NIAA. The decision does not set out the requirements of Appendix EU of the Immigration Rules relevant to the EUSS decision.
10. The decision records at [23] that the Home Office Presenting Officer stated that “the appellant benefited from regulation 27 but not on imperative grounds. He accepted that if I found that the appellant did meet the imperative grounds then the appeal should be allowed.”. Having set out some relevant immigration and offending history in relation to the appellant, the Judge then set out regulation 27 and schedule 1(7) of the EEA Regulations before making the material findings in determining the appeal at [36] et seq of the decision.
11. Having referred to the appellant’s tax records for 2005 to 2020 the Judge found that the appellant had been living in the United Kingdom since 2005. The Judge then refers at [37] to the Home Office Guidance “Public policy, public security or public health guidance” as indicating that regulation 27 applied due to the appellant’s criminal conduct taking place before 23:00 GMT on 31 December 2020.
12. Key findings are set out at [38] to [39]:
38. On the evidence before me I accept meet the requirements under paragraph EU 11 but for the deportation order and I am satisfied that he has demonstrated that he has been resident in the UK for at least 10 continues years prior to his conviction for the index offence which occurred to 31 December 2020 (sic).
39. I am therefore satisfied that the respondent was incorrect to refuse the EUSS application on the basis of suitability and was also incorrect in making the deportation order under section 32 of the 2007 Act and regulation 27 did apply.
13. At [40] to [44] the Judge summarises aspects of the appellant’s offending history and evidence from a letter dated 30 April 2024 from the appellant’s Offending Manager. He then concluded that he was “not satisfied that the evidence indicates that the appellant’s criminal conviction and sentence of imprisonment have been such as to show a severing of his integrative links with this country”. In light of these findings the Judge allowed the appellant’s appeal because he benefitted from imperative grounds of protection on the basis that he had “10 years continuous residence” and was integrated into the UK.
The grounds and permission
14. Permission to appeal was sought by the appellant on two main grounds.
15. Read as a whole the grounds assert that the Judge made a material misdirection in law and provided inadequate reasoning in reaching the conclusion that the imperative grounds protection applied in respect of the appellant.
16. Ground 1 focuses on a failure by the Judge to consider whether the appellant had acquired a permanent right of residence, which the grounds contend is an essential precondition of access to imperative grounds of protection. The ground also addresses the asserted failure by the Judge to consider or provide adequate reasoning in relation to whether any permanent residence was subsequently lost in light of a “patchy” post-2010 employment record and his imprisonment in May 2016.
17. In relation to this issue the respondent submits that the Judge did not consider the possibility that five years physical presence alone could replicate permanent residence in light of the definition of “deportation order” in Annex 1 of Appendix EU.
18. Ground 2 asserts that even if the Judge was correct to find that the appellant had acquired permanent residence in the past the consideration of the imperative grounds protection was wrong in law because the Judge appears to count forward in time up to the date of conviction for the index offences, rather than counting back from the date of the deportation decision on 18 October 2023. It was also submitted that residence after the UK had left the EU would not count.
19. Permission to appeal was granted by First-tier Tribunal Judge Parkes on 27 June 2025 on all grounds.
Rule 24 response
20. Following the grant of permission to appeal the appellant filed a rule 24 response on 8 August 2025. The response submits that the Judge was correct to find that the imperative grounds of public security threshold applied because:
a. The appellant had resided in the UK for a continuous period of five years so that the requirements of EU11 of Appendix EU were met and thus it was not necessary to show that he had acquired a permanent right of residence under the EEA Regulations.
b. In any event, the appellant would be able to demonstrate he had acquired a permanent right of residence on the evidence before the FTT which included tax records for 2005 to 2010.
c. The appellant had resided in the UK for a continuous period of ten years prior to the deportation decision. Although he was in prison from 2020 to 2022, he had already forged integrating links with the UK.
21. In the alternative, the response states that should the serious grounds of public policy and public security threshold apply, the appeal still fell to be allowed as the decision was not proportionate.
Rule 25 reply
22. The respondent filed a rule 25 reply together with a skeleton argument on 9 September 2025.
23. The rule 25 reply states:
40. The primary position in Mr Skorupa’s Rule 24 response is that he had resided in the UK for a continuous period of five years. He considers that it was not necessary to show that he had acquired a permanent right of residence.
41. In the alternative, Mr Skorupa argues that his evidence of tax records show that he had acquired permanent residence. It is also argued that he had resided in the UK for a continuous period of 10 years and his integrative links with the UK have not been broken by his periods of imprisonment.
42. The SSHD responds as follows:
a. As acknowledged in her grounds of appeal and above, the SSHD accepts that the enhanced right of protection is extended by the EUSS to those who had simply resided in the UK for a continuous period of five years.
b. The SSHD does not agree that it was not necessary for Mr Skorupa to show that he had acquired a permanent right of residence. As per [111] of Abdullah & Ors, if Mr Skorupa can show that he was exercising Treaty Rights and/or acquired permanent residence before 31 December 2020, he falls in scope of the Withdrawal Agreement. Paragraph [113] is also relevant. The SSHD maintains her position that he had not shown he met either condition and therefore, she contends that was a live issue before the Judge and will remain so for any remaking.
c. The SSHD in her grounds of appeal reserved her position on whether Mr Skorupa did reside in the UK for a continuous period of five years. After careful thought, the SSHD now accepts that Mr Skorupa completed a continuous qualifying period of five years between 2005 – 2010, based on his Worker Registration Scheme application, employment records and birth of his daughter during that period.
d. Therefore, the SSHD also accepts that Mr Skorupa has protection under the serious grounds test.
e. The SSHD maintains that Mr Skorupa does not meet the imperative grounds test and maintains that his integration within the UK has been displaced by his offending.
Error of law hearing
24. In advance of the hearing both parties had prepared detailed skeleton arguments. Both documents were of considerable assistance to me, and I wish to record my gratitude to the representatives who drafted them, in Ms Barnes’ case at very short notice. Both documents are detailed pieces of work, and I do not propose to rehearse the content in this decision but have referred to relevant submissions in my analysis below.
25. I heard oral submissions from Ms Ahmed in amplification of the original grounds of appeal and her skeleton argument. During submissions it became apparent that Ms Ahmed was working from a different version of the grounds of appeal which appeared to be more extensive than the version before me. The version before the Tribunal was “version 2” according to the file name. Ms Ahmed had been working from “version 5” which has not been seen by the Tribunal or appellant. I indicated that permission had been granted on version 2 of the grounds and the hearing would proceed in relation to those grounds.
26. Ms Ahmed sought permission for the respondent to raise a new ground of appeal.
27. I heard oral submissions from Ms Barnes in amplification of her skeleton argument, and she responded to Ms Ahmed’s application to amend the grounds.
28. In relation to Ms Ahmed’s application, she indicated that the decision gave rise to a potential jurisdictional matter. In her submission, the Judge had purported to allow the appellant’s human rights appeal when he had not exercised his right of appeal under section 82 NIAA 2002 in relation to his human rights claim. In support of her application, Ms Ahmed referred to the fact the FTT had only assigned one appeal reference to the appellant’s appeal which was prefixed with “EU” and the appeal submission summary (HB/60) stated that the “reason for appeal” is the “EU settlement scheme”. In addition, Ms Ahmed referred to the appellant’s FTT skeleton argument which only addressed his EUSS appeal.
29. In Ms Ahmed’s submission the Judge’s error in this regard was “fatal to the determination, and it must be set aside in its entirety”. In support of her submission Ms Ahmed relied on Abdullah & Ors (EEA; deportation appeals; procedure) [2024] UKUT 00066 (IAC) when the Tribunal was faced with what she submitted was a similar error. At [157] of Abdullah the Tribunal concluded:
It follows from this that the decision of the First-tier Tribunal involved the making of an error of law, as the judge applied the wrong law, and failed to identify the relevant legislation under which the appeal could be brought, nor did he identify the relevant ground of appeal. On that basis alone, it must be set aside.
30. I indicated that ordinarily, absent exceptional circumstances, the Tribunal would not entertain an application to amend the grounds at this very late stage in proceedings. However, because the new ground essentially relates to the First-tier Tribunal’s jurisdiction, it is one that I should nevertheless consider. I remind myself of the case of SA v SSHD [2025] EWCA Civ 357 (particularly the discussion at [41] onwards) as authority for that proposition. The issue is whether the FTT was seized of a human rights appeal at all.
31. I note what Ms Ahmed states regarding the appeal submission summary. However, it is also recorded on that summary under the section “new matters” that “a refusal would breach the Appellant’s Article 8 human rights and that the EEA 2026 Regulations apply”. I also note that the appellant (or his representatives) uploaded both the EUSS decision and the human rights decision when submitting his appeal. On this basis it would appear that the appellant was also seeking to appeal the human rights decision, although I am unable to determine if he successfully did so.
32. Based on the information before me I am unable to conclude whether the appellant was exercising his right of appeal under section 82 NIAA. Given my conclusions below on the original grounds, it is unnecessary for me to do so. I have found that the grounds as originally pleaded are made out. The decision must be set aside in its entirety and the appeal remitted to the FTT for a de novo hearing. It is therefore unnecessary to grant permission to the respondent to amend her grounds of appeal to include the new ground at this late stage and I decline to do so because I cannot be sure that the FTT did not have jurisdiction in relation to a human rights appeal.
33. However, a matter for the FTT to consider at the next hearing will be what grounds of appeal are before the Tribunal for determination, and on what basis. This may require further investigation of the records held on “MyHMCTS” in relation to the decision to extend time to appeal. It may also require an assessment of the appellant's “journey” on MyHMCTS at the time the appellant submitted his appeal, including looking at any instructions or prompts for an appellant seeking to appeal two separate decisions at the same time.
34. It may well be that determination of whether the appellant was exercising his right of appeal under section 82 NIAA is ultimately immaterial considering headnotes (H) to (J) of Abdullah.
Analysis and conclusions
35. I have carefully considered the decision under appeal and the submissions from the parties. It is helpful to identify some key concerns in relation to the decision, before addressing the grounds of appeal in light of these matters.
a. The Judge did not identify that the appellant was exercising his right of appeal under The Immigration (Citizens' Rights Appeals) (EU Exit) Regulations 2020 (“CRA Regulations”) in respect of the EUSS decision. Having failed to do so, there is no indication of what grounds of appeal under regulation 8 of the CRA Regulations, if any, the Judge was considering in reaching his conclusions. Regulation 8 of the CRA Regulations provides a right of appeal where a decision breaches any rights under the Withdrawal Agreement and/or where the decision is not in accordance with the Immigration Rules.
b. There is no reference in the decision to the definition of “deportation order” from Annex 1 of Appendix EU. This definition is effectively the mechanism by which regulation 27 of the EEA Regulations can apply to the appellant in his EUSS appeal.
c. Although the operation of the EUSS as structured, is that regulation 27 of the EEA Regulations is applied by operation of the definition of deportation order as set out in Annex 1, there is no indication that the Judge considered the appeal on this basis. The decision does not indicate on what legal basis regulation 27 applied to the appellant. The decision refers at [37] to the Home Office Guidance entitled “Public policy, public security or public health decisions” published on 30th September 2022 but does not provide the statutory authority for the application of regulation 27. The Judge appeared to consider that regulation 27 applied directly in relation to the deportation decision and order, as if it were an appeal under the EEA Regulations themselves.
d. There is no reference to the reported decision of Abdullah & Ors (EEA; deportation appeals; procedure) [2024] UKUT 00066 (IAC) and no application of the guidance therein in relation to the correct approach to an appeal involving a decision to deport an EEA citizen where the criminal conduct in question arises before 23:00 on 31 December 2020. As a consequence, no structured approach was adopted in relation to the relevant legal issues and, as identified above, no explanation of the basis upon which regulation 27 was applied. This issue should be determined by the matters summarised in Abdullah at headnotes (A) to (C).
e. There is no indication in the decision that the Judge appreciated that the possibility that the appellant’s mere presence in the UK could replicate permanent residence status by virtue of the Annex 1 definition of deportation order.
f. If the Judge was not addressing the issue of the appellant’s mere presence in the UK by virtue of the Annex 1 definition of deportation order, it is not clear whether the finding at [36], that the appellant had been living in the UK since 2005 based on the tax records for 2005 to 2020, was intended to be a finding that the appellant had permanent residence status.
g. In finding that imperative grounds of protection applied the Judge did not, as required, count back from the date of the deportation decision. The Judge did not specify which dates were the basis for consideration of the ten year qualifying period. At [38] of the decision it states “I am satisfied that he has demonstrated that he has been resident in the UK for at least 10 continues years prior to his conviction for the index offence which occurred to 31 December 2020” (sic). In failing to specify dates for the period under consideration, and in the absence of clear and sufficient reasoning, it is not clear whether the Judge was counting back from the date of the conviction of the offence or whether the Judge was counting forward ten years from the date of arrival in the UK. In both cases the period would have ended “prior to his conviction”.
h. There is no indication that allowance was made for the periods of time the appellant spent in prison when concluding that the appellant met the ten year qualifying period for imperative grounds protection.
36. Taking into account the lack of any relevant legal framework set out in the decision, and the above matters, the respondent and this Tribunal can have no confidence that the Judge adopted the correct approach in his assessment of the disputed issues in this appeal. If ultimately the Judge reached the “correct” conclusion (which may turn out to be the case), there is no reliable basis upon which I can conclude this was as a result of the application of the correct legal principles.
37. Whilst by virtue of the Annex 1 definition of deportation order and the guidance in Abdullah at [51] there is clear merit to Ms Barnes’ submission that the appellant would not be required to demonstrate permanent residence to succeed in an appeal under regulation 8(3)(b) of the CRA Regulations (“not in accordance with residence scheme immigration rules”), there is absolutely no indication from the decision that the Judge directed himself in this regard and was determining the appeal on that basis.
38. In accordance with ASO (Iraq) v SSHD [2023] EWCA Civ 1282 at [41], I should assume, unless I detect an express misdirection, or I am confident from the Judge’s express reasoning that the decision must be based on an implicit misdirection, that the First-tier tribunal, as a specialist tribunal, knows and has applied the correct law. In this case, however, I find I am unable to make such an assumption due to the lack of any apparent direction on the relevant legal framework. It is not possible to discern reliably what grounds of appeal and legal issues the Judge was determining, and on what basis. If this were the sole ground of appeal the decision could be set aside and potentially re-made in this Tribunal. However, I find I am unable to take this approach due to the issues arising in relation to ground 2.
39. In respect of ground 2 the Judge clearly erred in law in his approach to the counting of time and consideration of the period of residence necessary for imperative grounds protection to apply. This error is accepted on behalf of the appellant. It is well established that the qualifying ten year period counts back from the date of the deportation decision (Secretary of State for the Home Department v MG (Portugal) (C-400/12), B v Land Baden-Wurttemberg (C-316/16), Secretary of State for the Home Department v Vomero (C-424/16)).
40. Ms Barnes indicated in her skeleton argument that although it was accepted the Judge erred in relation to the period considered for the ten year qualifying period, in her submission this error is not material as “it simply meant that the FTT considered whether he had ten years’ continuous residence in the UK from 29 July 2012 rather than 18 October 2013”.
41. The applicant’s position, however, fails to take into account the periods during which the appellant was in prison and assumes that the Judge was assessing a ten year period from 29 July 2012 to 29 July 2022, which is not specified in the decision.
42. It is also well established that a period of imprisonment (or time in a YOI) does not count positively towards establishing ten years continuous residence but instead “presses a pause button” (Hafeez v Secretary of State for the Home Department [2020] EWCA Civ 406 at [37] to [43]). However, there is no indication in the decision that the Judge made allowance for time the appellant spent in prison in his assessment of the ten year qualifying period. From 29 July 2012, the date referred to by Ms Barnes, there are two periods of imprisonment to take into account.
43. On 9 May 2016 the appellant was sentenced to a total of eight months imprisonment for failure to comply with the requirements of a suspended sentence imposed on 17 September 2014 and varied on 9 March 2015 (four months imprisonment), and for offences under the Fraud Act 2006 (four months consecutive to the sentence for breach of a suspended sentence). On 29 July 2022 the appellant was sentenced to a total of 60 months imprisonment for the index offences. The deportation decision records that the appellant was remanded in prison for a period of 778 days from the time of his arrest on 21 May 2020 (and on that basis contends that the appellant was not lawfully resident immediately prior to 23:00 on 31 December 2020). The decision provides no indication that the Judge took account of the periods of imprisonment in the assessment of the ten year period or appreciated that such periods would “stop the clock”.
44. An error will only be immaterial, such that it is appropriate to refuse to exercise the Tribunal’s discretion to set aside a decision vitiated by error of law under s.12(2)(a) of the Tribunals, Courts and Enforcement Act 2007, if the FTT "would have been bound to", "must" or "would inevitably" have reached the same conclusion, or if, "on the materials before the FTT any rational tribunal must have come to the same conclusion": Detamu v SSHD [2006] EWCA Civ 604 at [14] and [18]; Sadovska v SSHD [2017] UKSC 54, [2017] 1 WLR 2926 at [31]; AJ (Angola) v SSHD [2014] EWCA Civ 1636 at [49]; ASO (Iraq) v SSHD [2023] EWCA Civ 1282, at [43]-[44].
45. Whilst it is entirely possible that a tribunal, correctly applying the law, may find that the appellant should benefit from the imperative grounds protection, it cannot be said that any rational tribunal, without having made the error, must have come to the same conclusion. It is apparent that further fact-finding is required in relation to this issue. I find that the error of law is undoubtedly material and that ground 2 is made out.
46. Additionally, I was addressed on the Judge’s assessment of the appellant’s integrative links to the UK. Ms Ahmed submitted that the Judge had provided wholly insufficient reasoning to support the finding that the appellant’s integrative links to the UK had not been severed by his offending. In response, Ms Barnes submits that the respondent had not properly pleaded this point in the original grounds for appeal, although she fairly drew my attention to [16] of the grounds which contends that is was “not obvious” why the appellant was found to have accumulated lawful continuous residence between 2010 and 2020; making reference to the appellant’s period of imprisonment in 2016. Further, Ms Barnes submits that the respondent’s challenge is no more than a disagreement with the Judge’s finding of fact.
47. I accept that that the respondent does not specifically raise a reasons challenge under the sub-heading for ground 2 in the original grounds. However, the respondent does specifically plead inadequacy of reasoning under the sub-heading for ground 1. At [16] of the grounds the respondent makes submissions which are ultimately relevant to the adequacy of reasoning regarding the issue of imperative grounds because of the interconnected nature of ground 1 and ground 2 which both relate to the relevant level of protection afforded to the appellant by application of regulation 27. On a fair reading of the grounds, I am satisfied that the respondent was seeking to challenge the decision on the basis of inadequate reasoning. Ultimately, having already found the errors of law indicated above, this matter does not impact on my decision to set aside the FTT decision or my decision to remit the appeal to the FTT for a de novo hearing. However, I consider it helpful to briefly address this matter.
48. A sentence of imprisonment (or time in a YOI) will in principle interrupt continuity of residence. However, whether the lack of continuity will prevent a person from benefitting from the highest tier of protection under the EEA Regulations will depend on whether, following an “overall assessment”, the person’s integrative links to the UK are found to have been broken (MG (Portugal) at [27]-[36]).
49. The position is summarised in Hafeez as follows (at [43]):
An individual relying on imperative grounds protection who has served time in custody must prove both that he has 10 years continuous (or non continuous) residence ending with the date of the decision on a mathematical basis and that he was sufficiently integrated within the host state during that 10 year period.
50. There cannot be a proper consideration of whether the appellant was sufficiently integrated within the UK during the 10 year period in question without first correctly identifying the relevant period, taking into account any period of imprisonment, and then conducting an “overall assessment” of all relevant matters to determine whether the appellant’s integrative links have been broken, as set out by Underhill LJ at [32] and [33] of Secretary of State for the Home Department v Viscu [2019] EWCA Civ 1052, which states:
32. At [72] to [75] the Court went on to consider what factors would be relevant in the overall assessment:
“72 As part of the overall assessment, mentioned in paragraph 70 above, which, in this case, is for the referring court to carry out, it is necessary to take into account, as regards the integrative links forged by B with the host Member State during the period of residence before his detention, the fact that, the more those integrative links with that State are solid —including from a social, cultural and family perspective, to the point where, for example, the person concerned is genuinely rooted in the society of that State, as found by the referring court in the main proceedings —the lower the probability that a period of detention could have resulted in those links being broken and, consequently, a discontinuity of the 10-year period of residence referred to in Article 28(3)(a) of Directive 2004/38.
73 Other relevant factors in that overall assessment may include, as observed by the Advocate General in points 123 to 125 of his Opinion, first, the nature of the offence that resulted in the period of imprisonment in question and the circumstances in which that offence was committed, and, secondly, all the relevant factors as regards the behaviour of the person concerned during the period of imprisonment.
74 While the nature of the offence and the circumstances in which it was committed shed light on the extent to which the person concerned has, as the case may be, become disconnected from the society of the host Member State, the attitude of the person concerned during his detention may, in turn, reinforce that disconnection or, conversely, help to maintain or restore links previously forged with the host Member State with a view to his future social reintegration in that State.
75 On that last point, it should also be borne in mind that, as the Court has already pointed out, the social rehabilitation of the Union citizen in the State in which he has become genuinely integrated is not only in his interest but also in that of the European Union in general (Tsakouridis’s case, paragraph 50).”
33. The CJEU concluded in relation to the first three questions, at [83]:
“Article 28(3)(a) of Directive 2004/38 must be interpreted as meaning that, in the case of a Union citizen who is serving a custodial sentence and against whom an expulsion decision is adopted, the condition of having ‘resided in the host Member State for the previous ten years’ laid down in that provision may be satisfied where an overall assessment of the person’s situation, taking into account all the relevant aspects, leads to the conclusion that, notwithstanding that detention, the integrative links between the person concerned and the host Member State have not been broken. Those aspects include, inter alia, the strength of the integrative links forged with the host Member State before the detention of the person concerned, the nature of the offence that resulted in the period of detention imposed, the circumstances in which that offence was committed and the conduct of the person concerned throughout the period of detention.”
51. In his conclusion on the analysis of integrative links to the UK, at [44] of decision, the Judge states that he was not satisfied the “appellant’s criminal conviction and sentence of imprisonment have been such to show a severing of his integrative links with this country”. The conclusion, referring to “conviction” and “sentence” in the singular rather than plural, indicates the Judge’s focus was on the recent offending and period of imprisonment. There is no analysis in relation to the 2016 period of imprisonment.
52. Additionally, there is no reference to the nature of the appellant’s previous offending other than recording at [40] that the appellant has a history of offending and has breached previous orders. There is also no reflection in the Judge’s analysis of the fact the appellant’s history of recorded offending in this country dates back to 2005 just after he first arrived in the UK. In light of the appellant’s previous convictions for drug offending, there is also potentially a tension between the appellant’s admission as to his continued drug use and the finding of integrative links.
53. In the circumstances, I find that it cannot be said that the Judge conducted an “overall assessment” as required or provided adequate reasoning for his conclusion. Consequently, this aspect of the decision also gives rise to a finding of a material error of law.
Disposal
54. In view of my findings above, in order to determine the appellant’s appeal there is potentially significant further fact-finding required to assess the appropriate level of protection afforded to the appellant under the EEA Regulations. This is particularly so if the FTT decides that the appellant does not benefit from the imperative grounds of protection.
55. I have considered paragraph 7.2 (b) of the Practice Statements of the Immigration and Asylum Chambers of the First-tier Tribunal and the Upper Tribunal (11 June 2018) and the principles in Begum (Remaking or remittal) Bangladesh [2023] UKUT 46 (IAC). I am of the view, supported by the submissions of the parties, that the nature and extent of the fact-finding required is such that remittal for a de novo hearing is the appropriate course of action and that to do otherwise would deny the appellant the benefit of the two-stage appeal process.
56. At a fresh hearing the FTT will be required to ascertain whether the appellant has exercised his right of appeal under section 82 NIAA in respect of the human rights decision. The FTT should also note the following matters which have been accepted by the respondent in this appeal in the course of proceedings in the Upper Tribunal.
What is now accepted by respondent
57. It is accepted that the appellant completed a continuous qualifying period of five years between 2005 to 2010, based on his Worker Registration Scheme application, employment records and birth of his daughter during that period.
58. It is therefore accepted that, as a minimum, the appellant has protection under the serious grounds of public policy or public security test under the EEA Regulations.

Notice of Decision
The appeal is allowed. The decision of the First-tier Tribunal involves the making of material errors of law and is set aside in its entirety. The appeal will be remitted to the FTT for a de novo hearing before a different judge. Whilst no findings from the decision are preserved, the FTT should note the issues now accepted by the Secretary of State.

Sarah Grey

Judge of the Upper Tribunal
Immigration and Asylum Chamber

29 September 2025