Tribunal decisions

The decision

IN THE UPPER TRIBUNAL
IMMIGRATION AND ASYLUM CHAMBER Case No: UI-2025-003378
First-tier Tribunal No: HU/00676/2025

THE IMMIGRATION ACTS

Decision & Reasons Issued:
On 3rd March 2026

Before

UPPER TRIBUNAL JUDGE LODATO

Between

EDI CARDOSO RAMOS
Appellant
and

SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: Unrepresented
For the Respondent: Mr Diwnwyz, Senior Presenting Officer

Heard at Phoenix House (Bradford) on 11 February 2026

DECISION AND REASONS
Introduction
1. The Secretary of State appeals with permission against the decision, dated 18 June 2025, of a judge of the First-tier Tribunal Judge (‘the judge’) to allow the appeal under the 2016 European regulations (as saved following the UK’s departure from the EU) and human rights grounds.
2. To avoid confusion, and for the remainder of this decision, I will refer to the appellant in these appellate proceedings, the Secretary of State for the Home Department, as the respondent and the respondent in the Upper Tribunal, Mr Ramos, as the appellant, as they were before the First-tier Tribunal.
Background
3. The appeal to the FTT arose in the context of deportation proceedings. The appellant, a Portuguese citizen, was the subject of a stage 2 deportation decision on 3 April 2025. This followed his acceptance of a police caution for soliciting a woman for the purposes of prostitution. In the course of the police enquiries into this matter, it emerged that the appellant had a previous conviction for a serious sexual offence against a child, committed in Portugal in 2012. He was sentenced to a 3-year suspended custodial sentence. He was 19 years old when he was sentenced for this offence on 1 April 2014. It was common ground between the parties that the appellant did not disclose this previous conviction to the Home Office when he applied for pre-settled status under the EU Settlement Scheme in 2020, following his initial arrival in the UK in 2018.
Appeal to the First-tier Tribunal
4. The appellant appealed against the refusal of his claim. The appeal was heard by the judge on 6 June 2025 before allowing the appeal under the 2016 European regulations, as saved following the UK’s departure from the EU. In the analysis section below, I summarise the judicial reasoning which underpinned this decision so far as it is relevant to the articulated grounds of appeal.
Appeal to the Upper Tribunal
5. The respondent applied for permission to appeal in reliance on the following grounds:
I. Ground 1 – Material misdirection of law in that the judge misapplied the legal test of whether the appellant constituted a “genuine, present and sufficiently serious threat affecting one of the fundamental interests of society” under reg.27(5)(c). Three principal arguments underscored this challenge to the judge’s decision. Firstly, there was said to be considerable tension in his finding that the appellant posed a genuine and sufficiently serious threat, but not one which was present. Secondly, that there was no consideration of his breach of restrictions to see his child in the UK; concerns which were expressly raised in paragraph 122 of the respondent’s stage 2 decision. Thirdly, relevant matters were left out of account in assessing whether the risk posed by the appellant was present, namely, his legal obligation to be monitored as a sexual offender on the register denoted pre-existing risk and the factual circumstances which led to most recent offence in the UK.
II. Ground 2 – Material misdirection of law in the judge failing to assess whether the appellant posed a risk to women and girls as a fundamental interest of society, or whether he had rehabilitated.
III. Ground 3 – Material misdirection of law in failing to assess whether the appellant’s offending in Portugal was so serious that it justified expulsion without further analysis.
IV. Ground 4 – Overall failure to provide lawfully adequate reasons for the decision to allow the appeal.
6. In a decision dated 28 August 2025, a judge of the Upper Tribunal Judge granted permission for all grounds to be argued.
7. At the error of law hearing, I heard oral submissions from both parties. I address any submissions of significance in the discussion section below.

Discussion
8. The touchstone for considering inadequacy of reasoning as an error of law remains R (Iran) & Others v SSHD [2005] EWCA Civ 982. At [13]-[14] of the judgment of Brook LJ, it was emphasised that reasons must be sufficiently detailed to show the principles on which a decision was made and why the ultimate decision was reached. Reasons need not be elaborate nor is it necessary to address each and every matter which might have had a bearing on the overall decision if those which were material to the reasoning are articulated. In DPP Law Ltd v Paul Greenberg [2021] EWCA Civ 672, the Court of Appeal, in the context of employment proceedings, considered adequacy of reasoning as an error of law. Popplewell LJ, stressed, at [57] the need to consider judicial reasons fairly and as whole without being hypercritical. Appellate restraint is required to read reasons benevolently. “Simple, clear and concise” reasoning was to be encouraged to enable to parties to broadly understand why they had won or lost. Further, it should not be assumed that an element of the evidence which was not expressly discussed was left out of account. While these observations were made in the context of employment proceedings, they are of relevance in the immigration and asylum sphere because this is also a jurisdiction in which decisions are made by expert tribunals attenuated by the need to give appeals anxious scrutiny.
9. A foundational issue in the proceedings before the FTT was whether the appellant constituted a “genuine, present and sufficiently serious threat” to a fundamental interest of society. In his summary of the principal controversial issues between the parties, the judge summarised the importance of this issue by noting:
Does the Appellant represent a genuine, present and sufﬁciently serious threat to 'a fundamental interest of society (“Issue 1”)? It was agreed that if I conclude that he does not, his appeal falls to be allowed.
10. The judge assessed the first issue between [20] and [33] of his decision. At [22], the judge recorded the nature of the Portuguese criminality. It involved the appellant molesting his 5-year-old relative when he was 17 years old. The suspended custodial sentence was never activated because the appellant complied with the requirements imposed on him. At [24], the judge recognised the extreme seriousness of this offending. The judge went on to reach the following conclusions between [25] and [27]:
In my judgment, given the seriousness of this past offending, the threat the Appellant poses is plainly genuine and sufﬁciently serious. The threat is to a fundamental interest of society, namely the maintenance of public order, prevention of crime and protection of the public, particularly women and children in the United Kingdom.
The determinative issue is whether the threat the Appellant represents is a present threat. Having considered this issue very carefully, I am not satisﬁed, based on the evidence before me, that the Respondent has established that the threat the Appellant represents is a present threat.
I make this ﬁnding, reminding myself of the fact that the threat does not need to be imminent. I also make this ﬁnding, taking account of the fact that the Appellant received a custodial sentence (albeit a suspended one) of three years, which increases the likelihood of the Appellant representing a genuine, present and sufﬁciently serious threat to a fundamental interest of society (paragraph 3, Sch 1 of the 2016 Regulations, as saved).
11. The judge noted, at [28], the time which had elapsed since the commission of the offence in 2012 and how the appellant’s only subsequent encounter with the criminal law was the caution in 2024. At [29], the judge referred to the respondent’s case, that those circumstances raised concern about criminal conduct of a similar type to that committed in Portugal. The judge assessed, between [30] and [31], whether the threat posed by the appellant was “present”, the appellant’s non-disclosure of the 2014 conviction and his family life:
I have taken the fact that the Appellant was cautioned for these offences into account when assessing whether the threat the Appellant represents is present. However, I am not persuaded by Ms Holmes’ submissions. I ﬁnd Ms Holmes’ submission that the Appellant’s offending in 2024 demonstrates that he continues to have the same issues that provoked his offending in 2014, and that the Appellant continues to present a high risk of committing sexual offences, to be speculative. I have very little information before me about the circumstances of the Appellant’s offending in 2014. It is, therefore, difﬁcult for me to assess whether the factors that lay behind the Appellant’s commission of the offence in 2014 persist to date. However, I do not think that it has been made out that outraging public decency and soliciting indicates a continuation of a pattern of offending of the kind of which the Appellant was convicted in 2014. As for Ms Holmes assertion that the offence took place in front of a nursery, that assertion is entirely unsubstantiated. The Appellant, for his part, who candidly disclosed that the offence occurred when he was found by police with a sex worker in his car at 1pm in the afternoon, did not accept that he had committed his offences outside a nursery. Based on the evidence that has been presented to me, I am not satisﬁed that the Respondent has established that the Appellant’s offences in 2024 took place outside a nursery.
I have take [sic] into account the fact that the Appellant did not disclose his 2014 conviction when he applied for leave to remain in 2020. This raises a legitimate question of whether the Appellant dishonestly failed to disclose a material fact when he made that application, which I accept is relevant to the issue of whether he represents a present threat. That issue was explored in evidence. Although the Respondent has not produced a copy of the application form on which the Appellant made the false representation, the relevant question and answer are reproduced in the Decision. In evidence, the Appellant accepted that the form asked him: “Have you ever been convicted of a criminal offence, or arrested or charged with an offence that you are on trial for or awaiting trial?” The Appellant accepted that he answered “No”. The Appellant’s explanation is that he understood the question to be asking him whether he had been convicted of any criminal offences in the United Kingdom. Having had the opportunity to assess the Appellant’s evidence on this issue, when he was cross-examined by Ms Holmes, I accept the Appellant’s explanation as being credible. I ﬁnd that he made an honest mistake when he answered the question about his previous convictions and that his failure to disclose the material fact of his 2014 conviction in Portugal was not dishonest. I therefore do not consider the Appellant’s non-disclosure of his 2014 conviction when he completed his 2020 leave to remain application indicates that the Appellant is a present threat.
12. Consistent with the approach taken at [25]-[26], the judge reached the following overall conclusion at [33]:
For all these reasons, I conclude that, although the Appellant represents a genuine and sufﬁciently serious threat to a fundamental interest of society, it has not been shown that this is a present threat. The Appellant succeeds on Issue 1.
13. I have kept in mind the need to read judicial reasons fairly and benevolently, but I am of the settled view that the judge misapplied the applicable legal test to assess whether the appellant posed a genuine, present and sufficiently serious threat to a fundamental interest of society. In two separate parts of the judicial analysis, it was found that the appellant posed a genuine and sufficiently serious threat, but not one which was present. At these two junctures of the judicial analysis, the genuine and sufficiently serious parts of the three-part test are found to be satisfied by the conspicuous use of the present tense. This is clear at [25] where the judge states that the appellant “poses” a “plainly genuine and sufficiently serious threat”. It is equally clear at [33] that the found that the appellant “represents” such a genuine and sufficiently serious threat. This is in direct tension with the finding that the threat posed by the appellant is not present. Try as I might, I am unable to make sense of how the appellant could be, in the present tense, a genuine and sufficiently serious threat to a fundamental interest of society and yet not constitute a present threat. Had the judge, on an isolated occasion, used the present tense instead of the past tense in expressing his overall conclusion on this acknowledged foundational issue, I might have been minded to put this down to a drafting error. That the error recurs in two separate parts of the decision, taken together with the obvious care with which the remainder of the decision was drafted, I am driven to conclude that this was not a ‘slip [or slips] of the pen’ but is an error of substance. The judge appears to have reached the settled view that the appellant was, at the relevant time, a genuine and sufficiently serious threat, but not one which was continuing and present. This is tautologous as, to put it bluntly, one cannot presently be a genuine and sufficiently serious threat while, simultaneously, not being a present threat.
14. I am also satisfied that the judge erred in failing to consider the points made by the respondent at paragraph 122 of the stage 2 decision. Here, the respondent indicated that the appellant had shown a concerning disregard for restrictions which had been placed on him to ensure that any contact he had with his and his partner’s children was safe. This was an important factor going to whether the appellant represented a genuine, present and sufficiently serious threat to a fundamental interest of society. The judge did not expressly consider this evidence which suggested a persistent flouting of restrictions designed to safeguard children.
15. The appellant was unrepresented before me. If he had a lawyer to argue his case, it might well have been suggested that if the judge had erred in relation to the first issue it was academic because the judge went on to resolve the second issue in his favour, namely, that the respondent had failed to establish that the appellant’s expulsion was justified on serious grounds of public policy. I am not persuaded that the error discussed above is rendered academic on the strength of the judge’s findings on the second issue. This is because the judge did not approach the second issue on the basis of the first issue hypothetically going against the appellant. In any event, it was determined that serious grounds had not been shown for the following reasons, at [36]:
I ﬁnd, on the basis of the evidence before me, that it has not been shown that the Appellant is likely to commit a further offence of the kind of which he was convicted in 2014 even if the consequences of further offending of that kind would be serious. It is not generally permissible to expel an individual for reasons of public revulsion at acts or crimes they committed: see paragraphs 11-20 of the judgment in Straszewski. Balancing the need to give effect to the Appellant’s right to free movement, as saved, I am not satisﬁed that the Appellant’s expulsion is justiﬁed on serious grounds of public policy or public security.
16. The above reasoning is not approached on the basis that the appellant is a genuine, present and sufficiently serious threat to a fundamental interest of society. Instead, the analysis echoes the previous internally inconsistent rationale that the appellant is a genuine and sufficiently serious threat, but one that is not present.
17. For these reasons, I am satisfied that the appeal falls to be allowed on the strength of the first ground of appeal. It follows that it is unnecessary to consider the remaining grounds of appeal as they could have no bearing on the ultimate outcome.
Disposal
18. The respondent invited me to retain the appeal in the Upper Tribunal for remaking in the event of the appeal being allowed, as it has. The appellant urged me to remit the matter to the FTT.
19. The starting point is paragraph 7.2 of the Practice Statements of the Immigration and Asylum Chambers of the First-tier Tribunal and the Upper Tribunal which provides:   
7.2. The Upper Tribunal is likely on each such occasion to proceed to remake the decision, instead of remitting the case to the First-tier Tribunal, unless the Upper Tribunal is satisfied that:    
(a) the effect of the error has been to deprive a party before the First-tier Tribunal of a fair hearing or other opportunity for that party’s case to be put to and considered by the First-tier Tribunal; or    
(b) the nature or extent of any judicial fact finding which is necessary in order for the decision in the appeal to be re-made is such that, having regard to the overriding objective in rule 2, it is appropriate to remit the case to the First-tier Tribunal.   
20. It appears to me to be fair and just to remit this matter to the FTT because of the scope of fact-finding which remains to be undertaken. The overall assessment of threat falls to be decided afresh on the strength of an up-to-date evidential picture. The appropriate venue for such a broad factual assessment is the FTT on remittal.

Notice of Decision
The judge’s decision involved a material error of law. I set aside the decision in its entirety and preserve no findings of fact. The matter is to be remitted to the First-tier Tribunal to hear the appeal de novo.

P Lodato

Judge of the Upper Tribunal
Immigration and Asylum Chamber

23 February 2026