Tribunal decisions

The decision

IN THE UPPER TRIBUNAL
IMMIGRATION AND ASYLUM CHAMBER Case No: UI-2025-003647
First-tier Tribunal No: HU/04715/2021

THE IMMIGRATION ACTS

Decision & Reasons Issued:
On 4 March 2026

Before

UPPER TRIBUNAL JUDGE LANE
UPPER TRIBUNAL JUDGE REEDS

Between

Secretary of State for the Home Department
Appellant
and

AM
(ANONYMITY ORDER MADE)
Respondent

Representation:

For the Appellant: Mr Diwnycz, Senior Presenting Officer
For the Respondent: in person

Heard at Phoenix House (Bradford) on 17 February 2026

DECISION AND REASONS
1. The appellant is a male citizen of Poland who was born on 20 February 2001. He has been convicted of a total of 20 criminal offences involving dishonesty and drugs and the Secretary of State decided to deport him. He appealed to the First-tier Tribunal against (i) a decision of the Secretary of State dated 15 October 2021 to refuse a human rights claim in response to the Secretary of State initiating deportation proceedings under the UK Borders Act 2007 and; (ii) a decision made on 20 April 2022. The latter decision is described in the respondent’s skeleton argument in the appeal proceedings before us as having two purposes: ‘ first, [that] the SSHD was right to pursue deportation under the 2007 Act and not under the EEA regulations. It secondly maintains the 2021 decision that refusal of the Appellant’s human rights claim does not breach any rights enjoyed by virtue of Article 8.’
2. The First-tier Tribunal at [11-12] recorded:
11. The parties agree that the following issues are in dispute:
I. Whether there are strong or imperative grounds to justify the appellant’s deportation in accordance with the 2016 EEA Regulations framework?
II. Whether there are very compelling circumstances weighing against the public interest in deportation as a foreign criminal sentenced to at least 4 years’ imprisonment?
12. The parties were agreed that the Article 8 human rights ground of appeal would become essentially academic if the appellant succeeded on the first issue because he would no longer be lawfully subject to removal. [our emphasis]
3. When looking at the chronology, the appeal lodged on 21 October 2021 set out that the appellant appealed on human rights grounds but there was no indication that it was appealed on EEA grounds. We further note from the chronology that at the time the deportation order was made there was no application for EUSS leave ( but which was issued on 9 January 2022) and that the appellant did not appeal against the Secretary of State’s decision to refuse his EUSS application.
4. The Secretary of State’s skeleton argument indicates that Ground 1 is no longer pursued. Ground 2 raises a question of jurisdiction; the Secretary of State submits that the First-tier Tribunal had no jurisdiction to hear an appeal under the Withdrawal Agreement or the EEA Regulations.
5. For the reasons set out with clarity and economy in the respondent’s skeleton argument at [25-28], we agree with the Secretary of State that the judge had no jurisdiction to hear and determine an appeal under the 2016 EEA Regulations or the Withdrawal Agreement. In the skeleton argument at [29] the author, Senior Presenting Officer Terrell, appears to acknowledge that the presenting officer and the appellant’s representatives jointly led the First-tier Tribunal judge into error by agreeing (wrongly in law) that the one ground of appeal which the appellant had sought to pursue (on Article 8 ECHR grounds) should be ignored and the appeal determined on grounds which the First-tier Tribunal had no jurisdiction to hear.
6. One consequence of the First-tier Tribunal’s error is that the judge has delivered an incomplete decision; the appellant’s Article 8 ECHR appeal remains outstanding. We find that the First-tier Tribunal’s decision should be set aside, that none of the findings of fact shall stand and that the appeal should be returned to the First-tier Tribunal for that Tribunal to remake the decision on Article 8 ECHR grounds only following a hearing de novo. We consider that the First-tier Tribunal, rather that the Upper Tribunal, should remake the decision because it will be necessary to consider new evidence and make fresh findings of fact. That task is better undertaken by the First-tier Tribunal.
7. We direct that the parties shall file at the First-tier Tribunal and serve on the other party any fresh evidence (in the case of the appellant, to include, in the form of witness statement(s), up to date particulars of his private life and, if any, family life in the United Kingdom) no less that 10 days prior to the next hearing in the First-tier Tribunal.
Notice of Decision
The decision of the First-tier Tribunal is set aside. None of the findings of fact shall stand. The appeal shall be returned to the First-tier Tribunal for that Tribunal to remake the decision following a hearing de novo.

C. N. Lane

Judge of the Upper Tribunal
Immigration and Asylum Chamber

Dated: 21 February 2025