Tribunal decisions

The decision

IN THE UPPER TRIBUNAL
IMMIGRATION AND ASYLUM CHAMBER Case Nos: UI-2025-003139; UI-2025-003140
First-tier Tribunal Nos: HU/58398/2023 EU/59480/2024
LH/03330/2023
LE/00989/2025

THE IMMIGRATION ACTS

Decision & Reasons Issued:

On 25th of March 2026

Before

UPPER TRIBUNAL JUDGE NEVILLE

Between

IONUT-MIHAI SOFRONIEI
(NO ANONYMITY ORDER MADE)
Appellant
and

SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: Mr B Hawkin, counsel instructed by TMC Solicitors
For the Respondent: Mr E Terrell, Senior Presenting Officer

Heard at Field House on 29 October 2025

DECISION AND REASONS

1. This is the second time the Upper Tribunal has considered the appellant’s deportation. On the first, under reference UI-2024-000502, Upper Tribunal Judge Blundell described the background as follows:
3. The appellant is a Romanian national who was born on 16 November 1994. He first came to the United Kingdom in 2014 but he came to live here, with his uncle and aunt, in the following year. He worked in the construction industry, as a steel fixer. He received a conviction for a summary offence in 2017 but on 10 February 2020, he was convicted of robbery which involved him and two associates robbing a prostitute and her transexual co-worker of their takings. The offence involved violence and mockery of the trans woman and a search of the property over the course of about twenty minutes. The appellant was identified by one of the complainants, who had been able to locate his Facebook account using the mobile telephone number which had been used to arrange the appointment with her.
4. On 2 June 2020, the appellant was served with a notice that he was liable to deportation. He made Article 8 ECHR representations in response to that notice, stating that he had lived in the UK for many years and that he had a Lithuanian partner and a baby daughter with whom he lived in Feltham. The appellant's partner also subsequently wrote in support.
5. On 19 January 2023, the respondent decided to make a deportation order against the appellant. The appellant's solicitors responded to that decision on 16 February 2023.
6. The respondent made a deportation order on 5 July 2023. She did not accept that the Immigration (EEA) Regulations 2016 applied to the appellant, as he had not been lawfully resident in the UK immediately prior to 31 December 2020 and he had not made an application under the EU Settlement Scheme. His representations were therefore considered as a human rights claim. The respondent did not accept that the appellant's deportation would be unlawful under section 6 of the Human Rights Act 1998, as she had concluded that the interference which was proposed with his private and family life in the United Kingdom was a proportionate one.
7. The appellant appealed to the First-tier Tribunal. His appeal was listed to be heard before the judge, sitting at Hatton Cross, on 12 December 2023. At around 6pm on 11 December 2023, the appellant made an application under the EU Settlement Scheme, noting that he had 'wanted to make an application under the EU Settlement Scheme, but unfortunately this was not possible as he was arrested for an offence at around that time'. The application was automatically acknowledged by email from the respondent.
8. Evidence of the appellant's application under the EUSS was presented to the judge at the hearing. He found, correctly, that the appellant had 'made a proper EUSS application which is before the respondent'. The judge also noted that the respondent had commenced 'deportation action under the Immigration (EEA) Regulations 2016'. He concluded that the EUSS application entitled the appellant to consideration under that part of the Immigration Rules and the 'transitional provisions of the Withdrawal Agreement' and that 'the respondent having not considered the application on that basis makes it an exceptional circumstance'. Largely for that reason, the judge found that this was an exceptional case which should be allowed under Article 8 ECHR.
2. UTJ Blundell upheld the respondent’s appeal to the Upper Tribunal:
13. It is quite clear that the judge erred in the manners contended by the Secretary of State. There was no decision under the EEA Regulations and there was no appeal on those grounds: Abdullah & Ors (EEA; deportation appeals; procedure) [2024] UKUT 66 (IAC), at paragraph (E) of the judicial headnote. The appellant having failed to make an in-time application under the EUSS, and having failed to demonstrate that he was lawfully resident in the UK on 31 December 2020, the judge was wrong to attach significance to the mention of the EEA Regulations at the start of the respondent's deportation consideration.
14. It is also clear that the judge failed to give any adequate reasons for concluding that the appellant's case was an exceptional one in which deportation would be unlawful under the Human Rights Act 1998. That conclusion was premised almost entirely on the fact that the appellant had made an application under the EUSS a few hours before the judge heard the appeal. The judge gave no consideration to the question of whether the public interest might necessitate the deportation of the appellant despite that application being pending before the respondent. He gave no consideration to any of the statutory public interest factors in Part 5A of the Nationality, Immigration and Asylum Act 2002 in reaching his short decision.
3. The decision was set aside and remitted to the FtT, subject to a stay pending the EUSS application. The respondent refused the EUSS application on 27 November 2024, the primary reason being given as follows:
To be eligible for limited leave to remain under condition 1 of EU14 of Appendix EU you must have completed a continuous qualifying period of residence in the UK which began before 23:00 GMT on 31 December 2020 and is continuing at the date of application. That period of residence must not have included any period of time serving a sentence of imprisonment, unless that conviction which led to that imprisonment has been overturned. On 10 February 2020 you were imprisoned following a conviction for 2 counts of Robbery. Our records confirm that you remained in prison until date 12 February 2023. For this reason, you cannot be eligible for limited leave to remain in line with the conditions set out in EU14.
4. The respondent therefore refused the application but still gave consideration to whether the appellant would have met the Suitability requirements at Appendix EU. Because the deportation order was made in respect of conduct committed before the relevant date of 31 December 2020, the application could only be refused on grounds of suitability according to (in effect) the test that formerly applied to EEA citizens under regulation 27 of the 2016 regulations. Setting out the relevant circumstances, the respondent decided that the test was met; deportation was justified on the grounds of public policy and public security, and was proportionate.
5. The appellant exercised his right of appeal against that decision, and both the EUSS appeal and the human rights appeal remitted by UTJ Blundell were heard together by FtT Judge Moon and dismissed in a decision dated 28 March 2025. The EUSS appeal was dismissed on the basis that the appellant did not meet the eligibility requirements of Appendix EU to the Immigration Rules. On the human rights appeal, the Judge first addressed the statutory exceptions to where the public interest will require a person’s deportation, as provided by section 117C of the Nationality, Immigration & Asylum Act 2002. The appellant could not meet the first of the three requirements of Exception 1, being that he had lawfully lived in the United Kingdom for most of his life. While the Judge found that he was socially and culturally integrated in the UK, she rejected that he met the third requirement of facing very significant obstacles to integration into Romania. On Exception 2, the Judge found that while the appellant has a genuine and subsisting relationship with his partner, and a parental relationship with her child, his deportation would not be unduly harsh on either of them. Finally, the Judge then rejected that there were very compelling circumstances such that deportation was disproportionate.
6. This time the appellant has appealed to the Upper Tribunal, arguing three errors in Judge Moon’s decision:
a. The relevance of the regulation 27 assessment – The Judge was wrong to reject that the outcome of the test posted by regulation 27 was relevant to whether deportation was a proportionate interference with the right to respect for family and private life afforded by Article 8 ECHR.
b. Unduly harsh – The Judge erred when deciding whether deportation would be unduly harsh, first by comparing its consequences against a ‘notional comparator’, contrary to the principles set out in HA (Iraq) v Secretary of State for the Home Department [2022] UKSC 22, and second by failing to take into account the permanent nature of the appellant’s separation from his family.
c. Very compelling circumstances – As well as the Judge’s proportionality assessment being vitiated by the errors argued under the previous two grounds, she: misunderstood the evidence concerning the appellant’s rehabilitation and likelihood of reoffending, so erroneously afforded that factor too little weight; failed to recognise that matters arising under the two statutory exceptions can cumulatively amount to very compelling circumstances; and failed to afford the best interests of the child due weight as a primary consideration.
7. I take each ground in turn. I mean no disrespect to the representatives’ submission by only setting them out where necessary to explain my conclusions.
Ground One – The relevance of the regulation 27 assessment
8. The right of appeal against the EUSS decision arose from the Immigration (Citizens' Rights Appeals) (EU Exit) Regulations 2020, which provides that the only two permissible grounds of appeal are (a) that it breaches any right which the appellant may have under the Withdrawal Agreement and (b) that it is not in accordance with residence scheme immigration rules. At [21]-[26] the Judge held that the appellant did not enjoy the protection of the Withdrawal Agreement. No reasoned argument had been made to the contrary, nor has her conclusion been challenged in this onward appeal.
9. The relevant residence scheme immigration rules are found in Appendix EU. Para EU3 provides that leave to remain will be granted where a valid application has been made, the applicant meets the eligibility requirements and the application does not fall to be refused on grounds of suitability. All three conditions must be met. The relevant eligibility requirements are set out in Abdullah & Ors (EEA; deportation appeals; procedure) [2024] UKUT 66 at [45]-[47] and I need not repeat them. Because the appellant was imprisoned before having resided in the UK long enough to acquire a right of permanent residence, and remained imprisoned on the specified date, he plainly cannot meet the rules’ eligibility requirements and Mr Hawkin made no argument to the contrary. The EUSS appeal was therefore bound to be dismissed and the Judge did not err in doing so.
10. Mr Hawkin argued that suitability is nonetheless relevant to the human rights appeal. He first cited the definition of deportation order in Appendix EU, which I accept requires, in respect of conduct committed before the specified date, that the respondent has decided that deportation is justified in accordance with regulation 27. In support of that definition’s application to the deportation order under consideration in the human rights appeal, Mr Hawkin next cited Abdullah at [103], where the Upper Tribunal held that “a finding that a deportation decision is contrary to the EUSS rules because it is not justified by reference to reg. 27 will result in a finding that it is ‘not in accordance with the law’ and thus any article 8 appeal would succeed on that basis”.
11. As succinctly and correctly argued by Mr Terrell in response, the Upper Tribunal did not purport to address any situation other than where deportation was contrary to the EUSS rules. Importing the test posed by regulation 27 into the assessment of proportionality conducted under section 117C(6) requires some provision to that effect; if it were otherwise then who, Mr Terrell asked rhetorically, is included or excluded from relying upon it? I agree that this question would be impossible to answer. The eligibility requirements of Appendix EU determine to whom its provisions apply, including the suitability requirements. There is no basis upon which the appellant can claim them as having freestanding relevance to Article 8 proportionality. As a fallback, Mr Hawkin argued that the suitability provisions provide a ‘yardstick’, set by the respondent and against which the circumstances of EEA citizens faced with deportation should be measured. I agree with Mr Terrell that this argument is contrary to the judgment of the Supreme Court in AM (Belarus) v Secretary of State for the Home Department [2024] UKSC 13, concerning a different provision of the rules:
102. Paragraph 276ADE is a statement of the Secretary of State's policy regarding the grant of LTR where a number of conditions are fulfilled. If an immigrant fulfils the conditions set out in paragraph 276ADE they will be entitled to the grant of LTR as a matter of that policy, without having to debate whether they would or would not be entitled to be granted LTR by reason of their rights under article 8. Paragraph 276ADE is not a statement regarding the weight to be attached to the public interest in the due enforcement of immigration controls for the purposes of the general application of article 8. The Secretary of State is not somehow estopped by reason of paragraph 276ADE from asserting that public interest after someone has been in the country for 20 years, or nearly 20 years; nor is the weight to be attached to that public interest reduced by reference to this immigration rule.
103. Quite apart from these general points, the reliance by the Upper Tribunal on paragraph 276ADE was not appropriate, because it did not give proper consideration to the operation of the whole scheme of paragraph 276ADE. As explicitly stated in paragraph 276ADE(1) (para 37 above), the Secretary of State's policy is to grant LTR after 20 years' residence in the United Kingdom only if the individual does not fall for refusal under the specified suitability requirements. AM clearly could not satisfy those requirements (see para 39 above). He was currently the subject of a deportation order (S-LTR.1.2). His presence in the United Kingdom was not conducive to the public good because he had been convicted of an offence for which he had been sentenced to imprisonment for more than 12 months (S-LTR.1.4; see also S-LTR.1.6). He had failed without reasonable excuse to comply with a requirement to provide information (S-LTR.1.7(b)). He had made false representations and failed to disclose material facts in his applications for LTR and his human rights claim (S-LTR.4.1 read with S-LTR.4.2). The 20-year condition in paragraph 276ADE does not stand apart from these other conditions. It only becomes relevant if those other conditions are satisfied.
12. I consider that the same principles apply to the suitability provisions of Appendix EU; each is a self-contained code limited to a specific cohort of applicants. The Judge was right to find that the outcome of a suitability assessment under Appendix EU did not carry weight in the appellant’s favour when assessing proportionality for the purposes of section 117C(6) and Article 8 ECHR.
Ground Two – Unduly harsh
13. In HA (Iraq) at [31], Lord Hamblen held that the comparison required by Exception 2 is “between the level of harshness which is ‘acceptable’ or ‘justifiable’ in the context of the public interest in the deportation of foreign criminals and the greater degree of harshness which is connoted by the requirement of “unduly” harsh.” It rejected that a comparison should be drawn between the consequences for the child in question and those that would be suffered by any child facing the deportation of a parent. In support of reliance upon such a notional comparator, the respondent had cited the judgment of Lord Carnwath in KO (Nigeria) v Secretary of State for the Home Department [2018] UKSC 53: (emphasis added)
23. On the other hand the expression ‘unduly harsh’ seems clearly intended to introduce a higher hurdle than that of ‘reasonableness’ under section 117B(6), taking account of the public interest in the deportation of foreign criminals. Further the word ‘unduly’ implies an element of comparison. It assumes that there is a ‘due’ level of ‘harshness’, that is a level which may be acceptable or justifiable in the relevant context. ‘Unduly’ implies something going beyond that level. The relevant context is that set by section 117C(1), that is the public interest in the deportation of foreign criminals. One is looking for a degree of harshness going beyond what would necessarily be involved for any child faced with the deportation of a parent. What it does not require in my view (and subject to the discussion of the cases in the next section) is a balancing of relative levels of severity of the parent's offence, other than is inherent in the distinction drawn by the section itself by reference to length of sentence. Nor (contrary to the view of the Court of Appeal in IT (Jamaica) v Secretary of State for the Home Department [2017] 1 WLR 240, paras 55 and 64) can it be equated with a requirement to show ‘very compelling reasons’. That would be in effect to replicate the additional test applied by section 117C(6) with respect to sentences of four years or more.”
14. At [31], Lord Hamblen held that Lord Carnwath had not intended in his judgment to lay down a test involving a notional comparator: he had not set out the nature of and justification for such a test and nor had he defined the comparator’s characteristics or the level of harshness they would suffer. The sentence was to “be understood as an illustrative consideration rather than a definition or test.” Lord Hamblen went on at [32]-[40] to describe the principled and practical objections to adopting such a comparator. The correct test was described as follows:
41. Having rejected the Secretary of State’s case on the unduly harsh test it is necessary to consider what is the appropriate way to interpret and apply the test. I consider that the best approach is to follow the guidance which was stated to be “authoritative” in KO (Nigeria), namely the MK self-direction:
“… ‘unduly harsh’ does not equate with uncomfortable, inconvenient, undesirable or merely difficult. Rather, it poses a considerably more elevated threshold. ‘Harsh’ in this context, denotes something severe, or bleak. It is the antithesis of pleasant or comfortable. Furthermore, the addition of the adverb ‘unduly’ raises an already elevated standard still higher.”
42. This direction has been cited and applied in many tribunal decisions. It recognises that the level of harshness which is “acceptable” or “justifiable” in the context of the public interest in the deportation of foreign criminals involves an “elevated” threshold or standard. It further recognises that “unduly” raises that elevated standard “still higher” - ie it involves a highly elevated threshold or standard. As Underhill LJ observed at para 52, it is nevertheless not as high as that set by the “very compelling circumstances” test in section 117C(6).
43. Whilst it may be said that the self-direction involves the use of synonyms rather than the statutory language, it is apparent that the statutory language has caused real difficulties for courts and tribunals, as borne out by the fact that this is the second case before this court relating to that language within four years. In these circumstances I consider that it is appropriate for the MK self-direction to be adopted and applied, in accordance with the approval given to it in KO (Nigeria) itself.
44. Having given that self-direction, and recognised that it involves an appropriately elevated standard, it is for the tribunal to make an informed assessment of the effect of deportation on the qualifying child or partner and to make an evaluative judgment as to whether that elevated standard has been met on the facts and circumstances of the case before it.
15. Mr Parkin argues that the Judge erroneously relied upon a notional comparator when deciding that deportation would not be unduly harsh. Having set out her findings of fact, the Judge’s conclusion is expressed as following: (emphasis added)
46. I have considered whether these factors meet the elevated threshold for unduly harsh described in paragraphs 41 – 44 of HA (Iraq) v Secretary of State for the Home Department [2022] UKSC 22. The close family relationship and the age of the child is significant and I have accepted that the appellant’s partner has some mental health difficulties, however, I find that the effect of deportation on this family would not be worse than on others. The appellant’s child does not have any health or learning difficulties, the partner would not be isolated without support and she has managed as a single working parent in the past and sought help for her mental health when she needed it and so her condition is managed. The close family relationship when combined with other factors is not, in my assessment, sufficient to meet the unduly harsh test.
16. The Judge’s reasons must be read as a whole, in light of her prior findings, and according to the principles collated in the Practice Direction ‘Reasons for decisions’. Doing so with care, I reject that the Judge committed claimed the error. At [42]-[45] the Judge set out the factors she considered to be relevant. These included that deportation would mean the separation of the family and would exacerbate the appellant’s partner’s mental health difficulties, that direct contact would be infrequent due to the family’s means, and that the effect of separation upon the child would be greater due to her age and would be contrary to her best interests.
17. Moving to the paragraph reproduced above, the Judge correctly and expressly self-directed that those factors must be assessed against threshold identified in HA (Iraq) at [41]-[44]. After remarking that the effect of deportation on this family would not be worse than on others, the Judge set out some mitigating factors to explain her final conclusion that the “close family relationship when combined with other factors is not, in my assessment sufficient to meet the unduly harsh test”. It is this final sentence that encapsulates the Judge’s reasoning. It must be taken as referring back to her correct self-direction in the first sentence of the paragraph, and is focused on the consequences of deportation to this family rather than others. Rather like Lord Carnwath in KO, the Judge bracketed her observation with references to the correct test and did not seek to define any notional comparator. The Judge’s observation was likewise intended to be understood as merely an illustrative consideration, and this ground of appeal fails. That conclusion can be reached without reference to the similar conclusion reached in Kapikanya v Secretary of State for the Home Department [2025] EWCA Civ 987 at [48], cited by Mr Terrell; this turned on consideration of the reasons in question.
18. In support of this ground Mr Parkin also advanced an argument that the Judge had erred in her approach to reoffending and rehabilitation. I cannot see that the Judge took those findings into account when deciding the two statutory exceptions, and consider that the claimed error is better considered under Ground Three.
Ground Three – Very compelling circumstances
19. I begin by rejecting the criticism of the Judge’s approach to rehabilitation and reoffending. As argued by Mr Terrell, at [50] the Judge simply noted that the appellant had been assessed as posing a medium risk of harm to the public, which is not inconsistent with a low statistical risk of reoffending. Risk of harm and risk of reoffending are different concepts. The Judge’s finding that the appellant had not demonstrated “complete rehabilitation” was rationally open to her on the evidence. The Judge can be seen to make largely positive findings in relation to the appellant’s rehabilitation and likelihood of reoffending in any event; this includes the finding at [29] that the appellant “remains focused not to reoffend and continues to change his life around”. There is no reason to think that the Judge failed to weigh that credit in the balance, and the asserted error is incapable of having affected the overall outcome.
20. It is next argued that the Judge failed, when assessing the consequences of deportation for the appellant’s partner’s mental health, to distinguish the temporary separation caused by his imprisonment to the permanent separation that would be caused by deportation. This argument is pursued by reference to the Judge’s observation at [52] that “the appellant’s partner has managed as a single mother for a significant period when the appellant was in prison and she has a network of family and support”, and a similar observation at [54]. Nothing said by the Judge suggests that she somehow lost sight of her previous findings at [42]-[45], as already summarised under Ground Two above, or afforded the child’s best interests less weight than their status as a primary consideration required. The consequences of deportation for this child take centre stage throughout the Judge’s analysis.
21. Finally, nothing in the Judge’s reasoning betrays a failure to recognise that factors incapable of establishing either of the two statutory exceptions might still cumulatively stand as very compelling circumstances; at [48] the Judge recorded without demur Mr Hawkin’s submission to that effect.
Conclusion
22. None of the grounds’ criticisms of the Judge’s proportionality analysis are well-founded.
Notice of Decision

(i) The appellant’s appeal to the Upper Tribunal is dismissed.

(ii) The decision of the First-tier Tribunal to dismiss the appellant’s appeal stands.

J Neville
Judge of the Upper Tribunal
Immigration and Asylum Chamber

24 March 2026