Tribunal decisions

The decision

IN THE UPPER TRIBUNAL
IMMIGRATION AND ASYLUM CHAMBER Case No: UI-2025-004659
First-tier Tribunal No: HU/00198/2025

THE IMMIGRATION ACTS

Decision & Reasons Issued:
On 6th March 2026

Before

UPPER TRIBUNAL JUDGE O’BRIEN

Between

SECRETARY OF STATE FOR THE HOME DEPARTMENT
Appellant
and

VIJAYKUMAR MOHANLAL DEUCHANDE
(NO ANONYMITY ORDER MADE)
Respondent

Representation:
For the Appellant: In person
For the Respondent: Mrs Abdul-Karim, Senior Home Office Presenting Officer

Heard at Birmingham Civil Justice Centre on 16 February 2026

DECISION AND REASONS

1. To avoid confusion, I refer below to the parties as they were known before the First-tier Tribunal.

2. The respondent appeals against the decision of a Judge of the First-tier Tribunal (‘the judge’) allowing the appellant’s appeal against the respondent’s refusal of his human rights claim made in the context of deportation proceedings.

Background

3. The appellant is a Portuguese national born on 10 April 1970. He was issued with a residence card in 2000 and a permanent residence card in 2005. He was granted settled status under the EUSS on 18 June 2019. On 29 September 2023, the appellant was convicted of 4 counts of acquiring criminal property and one of facilitating the acquisition/retention/use or control of criminal property, for each of which he was sentenced to 42 months’ concurrent imprisonment (reduced on appeal to 28 months).

4. On 13 May 2024, the respondent gave the appellant notice of deportation and on 10 July 2024 she refused his consequential human rights claim and signed a deportation order. The appellant appealed to the First-tier Tribunal on 28 January 2025 and the matter came before the judge on 3 April 2025.

5. The judge allowed the appeal in short on the basis that the refusal did not appear to doubt that the appellant had been resident in the United Kingdom since at least 2000. The respondent therefore needed to show imperative grounds of public security to justify the appellant’s deportation. The decision letter did not specify any such grounds and the presenting officer was unable to outline any such grounds, despite having been given time to take instructions. The respondent had not therefore established a lawful basis to deport the appellant. Consequentially, there was therefore no need to consider proportionality.

6. The respondent was refused permission to appeal by the judge, noting that the accepted chronology included a concession that the appellant had spent well over 10 years in the United Kingdom. However, she was given permission on renewal by the Upper Tribunal. The respondent’s grounds in short are: that the judge acted procedurally unfairly by identifying the issues in the case without the parties’ agreement and by not affording the respondent the opportunity to cross-examine the appellant; and that the judge failed to have proper regard to the seriousness of the appellant’s offending when assessing justification of deportation.

Submissions

7. Mrs Abdul-Karim submitted that the respondent had made no concession that the imperative grounds test applied and so the judge’s approach had been procedurally unfair. She noted that, in addition to having no opportunity to cross-examine the appellant, the respondent had not been given the opportunity to make any submissions. The appellant, who is unrepresented, complained that the respondent was unreasonably prolonging matters (throughout which he has been tagged) and suggested that it was incredible that yet another judge had made an error (referencing the error found by the Court of Appeal in the Crown Court judge’s sentence).

Consideration

8. It was not in issue that, because the appellant’s offence pre-dated the relevant date, the preserved provisions of the 2016 EEA Regulations applied. What was in issue was whether his deportation could be justified on serious grounds of public policy or public security, or only on imperative grounds of public security. As noted by the judge at [7], that was the first issue identified at a CMR on 18 February2025.

9. It would appear from the decision at [8] that the appellant attempted on the day before the hearing to provide evidence for the hearing and to ask that it be converted to a remote hearing. The evidence had not been provided in a format accessible to the Tribunal and so was not available to the judge (and there is no suggestion that the respondent had been able to access the evidence). As for the format of the hearing, the appellant did not attend (despite failing to explain why a remote hearing was necessary) and so a videolink was provided to secure his participation in the discussions which followed. No interpreter had, it would appear, been booked and consequentially no evidence was taken [18].

10. The judge records at [9] that the appellant thought that all contentious issues would be dealt with at a hearing on 28 March 2025 to deal with ‘some of the additional sanctions imposed on him’ and so at [10] notes having considered an adjournment, before continuing, ‘being mindful of the interests of justice and the extreme pressures on the tribunal in terms of work I sought to explore one further issue with the Presenting Officer.’

11. That issue was the question of imperative grounds. The relevant discussion is recorded at [11] to [15]:

‘11. I noted to Mr Port that on the face of the decision, and the apparently accepted chronology of the case the Appellant had completed well over ten years residence in the UK in addition to having acquired a Permanent Right of Residence no later than August 2005. In that context I noted that the Respondent needed to demonstrate “imperative grounds of public security” in order to justify deportation.

12. I noted that the decision did not identify any “imperative” grounds, and asked Mr Port if he could identify any. Mr Port sought time to take instructions and I allowed him several hours to try and secure instructions. When we reconvened after midday he sought an adjournment for the Respondent to provide a further review on the issue.

13. I refused Mr Port’s request because the Respondent had specifically considered the level of risk in the original decision. The Respondent had set out the dates of residence accepted in the decision, directed themselves as to the circumstances in which “serious” or “imperative” grounds were needed (para 20) and then only argued that deportation is justified on “serious” grounds (para 39).

14. Subsequent to that letter there was a CRM at which the Respondent was asked to be ready to address the question of whether Serious or Imperative grounds were required and had allowed the hearing to arrive without identifying any imperative grounds. On the day of the hearing the Respondent had over two hours to identify any theoretically arguable imperative grounds and could not do so. I indicated that I considered it appropriate to allow the appeal on the basis that “imperative” grounds were clearly needed and had not been identified.

15. Mr Port asked if I would be permitting cross examination. I indicated that were the appeal to need oral evidence it was apparent to me that I would need to adjourn for an interpreter and it was only because there was such clear evidence on the imperative grounds issue that I did not consider it appropriate, necessary or proportionate to adjourn so that the evidence could be considered on all other issues.’

12. There is no suggestion in the above discussion that the Presenting Officer had conceded that the respondent needed to show imperative grounds. That was clearly the judge’s own view (not even expressed to be a preliminary view) on the basis of the chronology as set out in the decision notice.

13. The decision notice contains the following immigration history:

‘6. Your exact date of entry to the UK in not known. You claim to have first arrived in 1991 on an EU Immigration entry visa. As a European Economic Area (EEA) national, at that time you would not have been subject to immigration control.

7. You have provided a copy of your residence permit issued on 16 May 2000 valid 16 May 2005.

8. Home Office records confirm on 17 November 2003 you lodged an application for ILR under the EEA regulations with your spouse Manisha Deuchande. On 3 April 2004 the application was refused as you had failed to show that you had been in employment for at least 4 years.

9. On 09 June 2005 you applied for a document certifying permanent residence and included your spouse as a dependent. On 2 August 2005 you were granted ILR.

10. On 15 June 2019 you applied under the EU settlement scheme. On 18 June 2019 you were granted ILR under the EU settlement scheme.

11. On 15 November 2023 you were served with a decision to deport pursuant to the Immigration Act 1971 and the UK Borders Act 2007.’

14. There is no express concession that the appellant has resided continuously in the United Kingdom since 16 May 2000, nor could such a concession be imputed. On the contrary, the issue of a permanent residence card on 2 August 2005 only implies acceptance of continuous residence for the 5 years to that point (or perhaps back to 9 June 2000, 5 years before the application), and the grant of settled status under the EUSS on 18 June 2019 only implies acceptance of an extant right of permanent (or alternatively continuous residence for the 5 years to that point). However, the right of permanent residence is not lost even if an individual is absent from the United Kingdom for a period of up to 2 years (regulation 15(3) of the 2016 EEA Regulations).

15. In any event, as the judge noted, the respondent directed at paragraph herself to the provisions of regulation 27 of the 2016 EEA Regulations and in particular the circumstances in which “serious” grounds and “imperative” grounds would need to be shown, and at paragraph 28 considered that “serious” grounds needed to be shown. In short, if anything can be imputed it is the respondent’s position that the appellant’s circumstances did not require “imperative” grounds to be shown.

16. It appears that there was no documentary evidence from the appellant before the judge, it having been provided by Dropbox, a medium not accessibly by the First-tier Tribunal (see [8]). He certainly did not allow oral evidence [18], let alone cross-examination of the appellant [15], and did not invite submissions from the respondent [19].

17. In summary, at the CMR, the level of protection against deportation was identified as an issue in the case to be determined as a matter of fact. It remained in issue at the hearing; however, the judge reached a conclusion on that disputed fact without the benefit of any evidence from the appellant (upon whom the burden of proving that fact lay) let alone permitting the respondent to cross-examine him on the issue (or even make submissions). In doing so, the judge subjected the respondent to a material unfairness and so erred in law.

Disposal

18. It is necessary in the circumstances to set the decision and side and remit the appeal for rehearing in the First-tier Tribunal.

19. It may well be that the respondent, reviewing the case, accepts that the appellant has resided continuously in the United Kingdom since 2000. Certainly, it would be sensible for her to consider whether she does and, if so, whether the circumstances she sets out in the decision constitute “imperative” grounds of public safety. Of course, that is a matter form the respondent. However, I do have some sympathy with the appellant’s frustration at the time these proceedings have taken.

Notice of Decision

1. The decision of the First-tier Tribunal involved the making of an error of law and is set aside.
2. The appeal is remitted to the First-tier Tribunal to be heard afresh by another judge with no findings preserved.

Sean O’Brien

Judge of the Upper Tribunal
Immigration and Asylum Chamber

3 March 2026