Tribunal decisions

The decision

IN THE UPPER TRIBUNAL
IMMIGRATION AND ASYLUM CHAMBER
Case Nos: UI-2025-003113
UI-2025-003114

First-tier Tribunal Nos: HU/00248/2023
EA/01525/2024

THE IMMIGRATION ACTS

Decision & Reasons Issued:

11TH December 2025

Before

UPPER TRIBUNAL JUDGE HOFFMAN

Between

SECRETARY OF STATE FOR THE HOME DEPARTMENT
Appellant
and

BERNARDUS JUANRE GOODALL
(NO ANONYMITY ORDER MADE)
Respondent

Representation:
For the Appellant: Mr N Wain, Senior Home Office Presenting Officer
For the Respondent: Ms P Solanki of Counsel, instructed by Osbourne Pinner Solicitors

Heard at Field House on 8 December 2025

DECISION AND REASONS
1. The Secretary of State appeals with permission against the decision of First-tier Tribunal Judge Robinson (“the judge”) promulgated on 22 April 2025 allowing the appellant’s appeals against her decisions dated 11 December 2022, to refuse his human rights claim, and 27 October 2023, to refuse his application under the EU Settlement Scheme (EUSS), and to deport him from the United Kingdom.
2. Although it is the Secretary of State who is the appellant before the Upper Tribunal, for consistency I shall refer to the parties as they were before the First-tier Tribunal. Therefore, I will refer to the Secretary of State as the respondent and Mr Goodall as the appellant.

Background
3. The appellant was born in South Africa in April 2001. He was adopted by his father, who is a British national, in 2012. The appellant first entered the UK in October 2012 but returned to South Africa in February 2013. In March 2013, he moved to Spain with his adoptive parents. The family then returned to the UK on 19 July 2014. The appellant was granted an EEA family permit under the Surinder Singh route. On 22 July 2019, the appellant made an application under the EUSS.
4. However, on 19 March 2020, the appellant was convicted of possessing a knife/pointed article in a public place and was sentenced to eight weeks in a young offender institution and was ordered to pay a victim surcharge. Then, on 9 July 2020, he was convicted of destroying or damaging property and making false representations and was ordered to pay compensation.
5. On 11 August 2020, the appellant was sentenced to 66 months in a young offender institution and ordered to pay a victim surcharge for robbery. As a result of this conviction, on 16 October 2021 he was issued with a notice of liability to deportation. In response, the appellant made representations as to why he should not be deported to South Africa. Those representations were considered as a human rights claim but refused in the respondent’s decision of 11 December 2022. In both the decision of 11 December 2022 and a subsequent one dated 13 January 2023, the respondent refused the appellant’s EUSS application on suitability grounds. However, the respondent failed to make a full decision in respect of the appellant’s retained EU law rights. Consequently, she withdrew her decision of 13 January 2023 and made a new one dated 27 October 2023 (although that refers to it replacing a decision dated 22 December 2022). It is this decision that is most relevant to the decision of the judge.
6. The respondent explained that to qualify for limited leave under condition 1 of paragraph EU14 of Appendix EU of the Immigration Rules, an applicant must have completed a continuous qualifying period of residence in the UK which began before 2300 GMT on 31 December 2020 and continued at the date of application, without any period of imprisonment. The respondent noted that the appellant was imprisoned on 11 August 2020 following a conviction for robbery and remained in custody until 23 December 2022. Accordingly, the respondent concluded that the appellant could not meet the eligibility requirements for limited leave under paragraph EU14. The respondent went on to find that, even if the appellant were eligible for settled status, his removal would nonetheless be justified on grounds of public policy or public security within the meaning of regulation 27 of the Immigration (European Economic Area) Regulations 2016 (as saved) (“the EEA Regulations”). In reaching that decision, the respondent stated that the nature of the appellant’s offending outweighed his personal circumstances and that deportation was proportionate having regard to the principles set out in regulation 27(5) and (6).
The appeal to the First-tier Tribunal
7. The appellant was granted a right of appeal against both the decision of 11 December 2022 and 27 October 2023.
8. At the outset of the hearing, which took place on 1 April 2025, an issue arose concerning the service of documents. On 14 March 2025, the appellant’s representatives had filed a composite bundle of evidence with the First-tier Tribunal. This included the original bundle of evidence filed on 2 October 2023, the further bundle of evidence filed on 9 October 2023, as well as new “updating evidence”. Furthermore, on 21 March 2025, they filed an updated skeleton argument dated 20 March 2025. However, due to a misreading of directions issued by the First-tier Tribunal on 14 January 2025, the appellant’s solicitors had mistakenly used an incorrect email address for service on the respondent. As a result, the composite bundle and the updated skeleton argument were not served on the Presenting Officers Unit prior to the hearing. The error was rectified on the morning of the hearing when Ms Solanki emailed the documents to the correct address at 10:29 and 10:42. The judge allowed the presenting officer time to consider the material and the hearing took place on the scheduled date.
9. Once the hearing was underway, Ms Solanki informed the judge that the presenting officer had accepted the appellant had accumulated five years of residence in the UK, meaning the “middle” test for deportation under EU law applied, i.e., whether the appellant posed a genuine, present, and sufficiently serious threat to one of the fundamental interests of society. Some confusion then arose on the part of the presenting officer. When the judge asked her to confirm that the middle level of protection was applicable, the presenting officer stated that the appellant had “the lower end of protection.” The judge sought clarification, explaining that if the appellant had acquired permanent residence based on five years’ residence, the middle test should apply. The presenting officer responded that the appellant did not have the highest level of protection (i.e., the imperative grounds test). The judge pointed out that there were three tiers and asked whether the presenting officer meant the middle one. The presenting officer said she meant the lowest, though she described this as the “serious grounds” test – which is, in fact, the middle tier. Ultimately, the presenting officer confirmed that it was “common sense” that the appellant had accrued five years’ continuous residence and obtained a permanent right of residence. The judge reiterated that this meant the appellant benefitted from the middle level of protection, and the presenting officer agreed.
10. Mr Wain, who had heard the audio-recording of the First-tier hearing, accepted that while the presenting officer may have mentioned the lower level of protection, given that she referred to the serious grounds test, she must have meant the middle level of protection and it was clear the hearing proceeded on that basis.
11. In allowing the appeal, the judge found that, although the index offence was serious, the respondent failed to establish that the appellant posed a genuine, present, and sufficiently serious threat to the fundamental interests of society as required under regulation 27 of the EEA Regulations. The judge found that the appellant had provided convincing evidence of his rehabilitation, remorse for his crimes, and abstinence from substance misuse, which was supported by positive probation reports and psychiatric opinion indicating a low risk of reoffending if his family support continued. While it was unnecessary for her to do so given her finding that the appellant did not meet the middle threshold for deportation, the judge nevertheless went on to consider whether the appellant’s deportation would be proportionate. In doing so, the judge took into account that the appellant had lived in the UK since 2014, was socially and culturally integrated, had no ties in South Africa, and played an active role in his British child’s life. Considering these factors, together with his mental health needs and the likely deterioration if removed, the judge concluded that deportation would be disproportionate and therefore unlawful under the EEA Regulations.
The appeal to the Upper Tribunal
12. On 29 September 2025, Upper Tribunal Judge Blundell granted the respondent permission to appeal on two grounds:
(1) The judge acted in a procedurally unfair manner and/or misdirected herself in law by allowing the appellant to rely on evidence that had not been properly served on the respondent in accordance with directions.
(2) The judge acted in a procedurally unfair manner by failing to give the presenting officer enough time to prepare for the hearing and to deal with issues arising from the late service of the appellant’s evidence.
13. In deciding this appeal, I had before me the following material: the respondent’s 726-page error of law bundle; the appellant’s 166-page bundle including his rule 24 response; copies of the two emails that Ms Solanki sent to the Presenting Officers Unit on 1 April 2025; and the presenting officer’s note of the hearing before the judge.
Discussion
14. The respondent’s arguments in relation to Grounds 1 and 2 overlap and I therefore deal with them together.
15. Mr Wain accepted that the appellant’s failure to serve the composite bundle and the amended skeleton argument on the respondent in accordance with the First-tier Tribunal’s directions was the result of a genuine mistake made in respect of the Presenting Officers Unit’s email address. However, he submitted that the consequence was that the presenting officer did not have the evidence in advance of the hearing. He argued that the judge was obliged to consider whether to admit the late evidence applying the three-stage test set out in the case of Denton v TH White Ltd [2014] EWCA Civ 906: see Maleci (Non-admission of late evidence) [2024] UKUT 00028 (IAC) at [44]; and SS (Congo) v Secretary of State for the Home Department [2015] EWCA Civ 387 at [93].
16. Furthermore, Mr Wain submitted that admitting the late evidence prejudiced the presenting officer because she did not have sufficient time to digest the new material. The consequence of this, Mr Wain argued, was that the presenting officer made a concession in relation to the length of the appellant’s residence that she ought not to have made. On this basis, Mr Wain contended that the respondent should be permitted to withdraw the concession and that the appeal should be remitted to the First-tier Tribunal for a fresh hearing.
17. Mr Wain is correct to argue that the judge erred by failing to consider whether to grant relief from sanctions by applying the three-stage Denton test. Maleci is clear that that is the correct approach. However, for the reasons set out below, I am satisfied that this error was immaterial.
18. Under the Denton test, the judge would first have to consider whether the delay was serious and significant. Given that the bundle and updated skeleton argument were not served on the respondent until the morning of the hearing, it is clear that the delay was both. Secondly, the judge would need to go on to consider whether the appellant had a good excuse for failing to comply with the directions. In this case, the respondent accepted that the appellant’s solicitors had attempted to serve the documents on the Presenting Officers Unit in time but made an error by omitting a hyphen in the email address. Ms Solanki explained that this mistake arose from a misreading of the First-tier Tribunal’s directions of 14 January 2025, which set out the respondent’s email address across two lines. The solicitors mistakenly assumed the hyphen indicated a line break rather than being part of the address. Having reviewed the directions, I am satisfied that this explanation is plausible and that the judge would have been bound to conclude it was a good one. Thirdly, the judge would then have to consider all the circumstances of the case, including the need for procedural rigour and potential prejudice to either party. Relevant factors would include the importance of the evidence to the appellant’s case, in circumstances where his deportation would have a severe and potentially irreversible effect by returning him to South Africa, and the fact that the appellant’s representatives had attempted to comply with the directions. Mr Wain submitted that the only apparent reason for proceeding was to avoid inconvenience to the appellant and his witnesses who had travelled to the hearing centre at expense to themselves. That was, in my view, a relevant consideration, as was the fact that the appeal had been pending since 2023, and under the overriding objective judges must deal with cases proportionately and avoid delay: see rule 2 of the Tribunal Procedure (First-tier Tribunal) (Immigration and Asylum Chamber) Rules 2014. However, I am satisfied that there were other compelling reasons why the judge would have been bound to admit the evidence.
19. The first is that contrary to what the respondent asserts, there was little or no new evidence in the composite bundle that was relevant to the question of the appellant’s continuous residence. As Ms Solanki pointed out, as the name suggests, for the most part the composite bundle sought to incorporate the previously filed evidence into one volume. This included the appellant’s evidence filed on 2 and 9 October 2023 which the presenting officer would have had access to prior to the hearing. The new evidence contained in the composite bundle (under the “Updating evidence” heading) mostly related to the appellant’s relationship with his partner and child. This was a “new matter” for the purposes of s.85(5) of the Nationality, Immigration and Asylum Act 2002. However, the presenting officer gave the respondent’s consent for the First-tier Tribunal to consider it and it is not part of the respondent’s appeal that she was wrong to do so.
20. Therefore, it cannot be said that the late service of the updating evidence had any bearing on the presenting officer’s concession in relation to the appellant’s length of residence. The presenting officer’s views can only rationally have been based on the evidence that had been included in the bundles served on 2 and 9 October 2023. Furthermore, as Ms Solanki pointed out, the respondent’s decision 27 October 2023 repeatedly appears to accept the length of the appellant’s residence in the UK from 2014: see, for example, paragraphs 35 to 39, 42 and 44. As this Tribunal recognised in MH (Appendix EU; withdrawal of concession) Albania [2025] UKUT 00351 (IAC), presenting officers are specialist advocates and can be assumed to have a firm understanding of their factual and legal cases. The concession must therefore be considered in that light.
21. The second reason is that the judge ensured the presenting officer had sufficient time to consider the appellant’s new evidence. As the audio recording of the hearing confirms, the judge asked whether the presenting officer had had enough time to review the bundle. The presenting officer replied that she had, and that she was grateful to the judge for affording her the time to do so. There is no evidence, for example in the presenting officer’s note of the hearing or in a witness statement made by her, that she was rushed for time. In these circumstances, Mr Wain’s suggestion that the judge should have disregarded that assurance and adjourned the hearing on the basis of potential unfairness to the respondent is unrealistic.
22. I also reject Mr Wain’s submission that the judge had a duty to adjourn the hearing to allow the respondent to file a new Review. Mr Wain relied upon the case of TC (PS compliance – “issues based” reasoning) Zimbabwe [2023] UKUT 00164 (IAC) to argue that Practice Statement No 1 of 2022 mandates that the respondent carry out a meaningful review of the appellant’s evidence. There is, however, nothing in TC or the Practice Statement that says that a hearing must be adjourned to allow the respondent to prepare a further written Review each time an appellant files new evidence, particularly where the presenting officer is content to proceed. Such an approach would be impractical and contrary to good sense. In any event, the respondent had already filed a Review dated 19 March 2025, which would have taken into account the evidence contained in the two October 2023 bundles, including the material relating to the appellant’s residence in the UK.
23. For these reasons, I am satisfied that, had the judge applied the Denton test, it is highly likely that she would have granted the appellant relief from sanctions. Furthermore, I am satisfied that there was no unfairness in the judge’s decision to proceed with the hearing given that the presenting officer confirmed that she had sufficient time to consider the new evidence and updated skeleton argument.
24. In the circumstances, I am satisfied that the respondent should not be permitted to withdraw the concession made by the presenting officer. While the application to withdraw was made relatively promptly in the grounds of appeal, as the Tribunal observed in MH, there must be a good reason for allowing such withdrawal. It is generally more difficult to justify withdrawing a concession based on an evaluative assessment of facts and evidence than one based on a point of law. Here, the concession clearly related to an evaluation of the facts and evidence. Moreover, as I have already explained, the respondent has failed to advance any good reason. The new evidence served on the morning of the hearing had no bearing on the matter to which the concession related and, in any event, the presenting officer expressly confirmed to the judge that she had sufficient time to consider it. Furthermore, allowing the respondent to withdraw the concession would cause significant prejudice to the appellant, as his appeal would have to be reheard de novo with the associated delay and costs that will result from that. It would also be prejudicial to the public interest in finality and legal certainty.
Notice of Decision
The decision of the First-tier Tribunal did not involve the making of a material error on a point of law
The appeal is dismissed

M R Hoffman

Judge of the Upper Tribunal
Immigration and Asylum Chamber

10th December 2025