Tribunal decisions

The decision

IN THE UPPER TRIBUNAL
IMMIGRATION AND ASYLUM CHAMBER
Case No: UI-2025-004781

First-tier Tribunal No: HU/00155/2025

THE IMMIGRATION ACTS

Decision & Reasons Issued:
On 7th January 2026

Before

UPPER TRIBUNAL JUDGE HIRST

Between

MALGORZATA KOZAK
(NO ANONYMITY ORDER MADE)
Appellant
and

SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: No appearance
For the Respondent: Mr Nappey, Senior Home Office Presenting Officer

Heard at Field House on 10 December 2025

DECISION AND REASONS
1. The Appellant appeals, with permission granted by the First-tier Tribunal, from the decision of the First-tier Tribunal dated 28 August 2025 dismissing her appeal.
2. For the reasons set out below, I have concluded that the First-tier Tribunal’s decision did not involve a material error of law. The Appellant’s appeal is dismissed.
Preliminary
3. The Appellant’s appeal was listed for an error of law hearing on 10 December 2025. However, the Appellant, who is not represented, did not appear at the hearing.
4. I considered whether to adjourn the hearing. Notice of the hearing was sent to both parties by email on 17 November 2025 and a hard copy was also posted to the Appellant. The email address to which the notice of hearing had been sent was the one provided by the Appellant for use in her appeal. The Appellant had not sought any adjournment. I was satisfied that the Appellant had been served with notice of the hearing. As the hearing took place after a previous case, there had been ample time for the Appellant to have arrived at court or to have notified the Upper Tribunal if she were running late.
5. The Appellant had filed limited evidence in her First-tier Tribunal appeal and Ground 1 was a pure point of law. I considered that it was not in the interests of justice to adjourn the appeal and that it was not unfair to proceed in the Appellant’s absence. I therefore heard submissions from Mr Nappey and reserved my judgment, which is given with reasons below.
Background
6. The background to the appeal is summarised in the First-tier Tribunal’s decision. Briefly, the Appellant is a Polish national. She claimed to have entered the UK in 2004 or 2005. Between 2006 and 2021 the Appellant was convicted multiple times, for offences including possession of Class A drugs with intent to supply and breach of court orders. The record of her convictions showed gaps in her convictions between 2008 and 2010, 2012 and 2014, and 2016 and 2017. On 24 June 2022 she was sentenced to 54 months’ imprisonment for possession of a Class A drug with intent to supply.
7. On 1 July 2022 the Appellant was served with notice of a decision to make a deportation order. On 1 August 2022 she made an application for leave to remain under the EU Settlement Scheme (EUSS). That application was rejected as invalid on 6 December 2022, the Appellant having failed to supply identity documents. On 21 September 2024 the Appellant was served with a Stage 2 deportation decision without a right of appeal together with a deportation order. She made a human rights claim, which was refused on 9 January 2025.
8. The Appellant’s appeal came before the First-tier Tribunal on 17 June 2025. It was common ground that the Appellant’s offending had taken place before 31 December 2020. The First-tier Tribunal found that as the Appellant had not made a valid application under the EUSS, and did not have leave under the EUSS or an outstanding application for leave as at 11pm on 31 December 2020, and as she could not demonstrate that her residence as at that date was in accordance with the EEA Regulations 2016, she was not within the scope of either the EU-UK Withdrawal Agreement or the transitional provisions of the Regulations. The Tribunal went on to dismiss the Appellant’s Article 8 ECHR appeal on the basis that there was no evidence showing it would be unduly harsh for her partner to go with her to Poland.
9. The Appellant appealed on two grounds: (i) the First-tier Tribunal had erred in concluding that she could not benefit from the Withdrawal Agreement or the transitional EEA Regulations; and (ii) the First-tier Tribunal had acted unfairly in refusing her request for a second adjournment of the appeal to allow her partner to attend to give evidence. The First-tier Tribunal granted permission on both grounds on 11 October 2025.
Discussion and decision
Ground 1 – the Withdrawal Agreement and EEA Regulations
10. The complex framework governing deportation decisions in respect of EEA citizens where criminal conduct prior to 31 December 2020 gives rise to deportation is set out in Abdullah & Ors (EEA, deportation appeals, procedure) [2024] UKUT 00066. In that case, the Upper Tribunal considered the scope of the protection from deportation offered to EEA nationals by the Withdrawal Agreement and the transitional provisions of the EEA Regulations (i.e. the provisions of the EEA Regulations 2016 which were preserved by the Grace Period Regulations and the Transitional Provisions Regulations) after the UK’s exit from the EU. To summarise Abdullah as it is relevant to this appeal, the effect of the transitional preserved provisions of the EEA Regulations and associated instruments is that an EEA national who can demonstrate either that they had acquired a right of permanent residence, or who was lawfully resident in accordance with the Regulations, immediately before 11pm on 31 December 2020 continues to have the protections provided for in the EEA Regulations. However, under regulation 3 of the EEA Regulations, continuity of lawful residence as at the relevant date would be broken by a sentence of imprisonment, the making of a deportation or exclusion order, or removal from the UK. An EEA national who had made an in-time application for leave under the EUSS and who was lawfully resident in the UK as at 11pm on 31 December 2020 is also protected by the operation of the Withdrawal Agreement. It is clear from Abdullah that an EEA national who did not have a pre-existing right of permanent residence and who was not lawfully resident in accordance with the EEA Regulations as at 11pm on 31 December 2020, and who did not have leave granted under the EUSS or a pending application for leave under the EUSS, does not fall within either the transitional Regulations or the Withdrawal Agreement.
11. The Appellant’s case as put in her grounds of appeal is that as she was in prison as at 11pm on 31 December 2020 she did not require leave to remain under the EUSS and was therefore lawfully resident in the UK.
12. That submission is based on a misunderstanding of the relevant legal framework. Applying the structured approach set out in Abdullah, it is clear that the Appellant did not fall within the scope of either the EEA Regulations or the Withdrawal Agreement. The Appellant had not acquired a right of permanent residence as a function of EU law prior to 31 December 2020, because there is no evidence that she was exercising Treaty rights, or that her residence in the UK was in some other way in accordance with the Citizens Directive or the EEA Regulations, for any continuous five-year period between 2006 and 2020. The Appellant was present in the UK at 11pm on 31 December 2020, but (as her grounds of appeal expressly recognise) she was serving a sentence of imprisonment at the time. She was not therefore lawfully resident for the purposes of the EEA Regulations.
13. In order to have a right of residence through the EUSS, the Applicant was required to have either been granted leave or to have a pending application made prior to the end of the grace period on 30 June 2021. The Appellant’s EUSS application was made in August 2022 and was rejected as invalid in December 2022. The Appellant had not been granted leave under the EUSS and did not have a pending application for leave made prior to the end of the grace period on 30 June 2021, so she did not fall within the scope of the EUSS. Lastly, the Appellant did not fall within the scope of the Withdrawal Agreement itself because she did not fall within the categories of person described in Article 10 of the Agreement.
14. The First-tier Tribunal granted permission to appeal on Ground 1 on the basis that guidance from the Upper Tribunal was required as to the application of the Withdrawal Agreement to persons in the Appellant’s situation, in light of Vargova v SSHD [2024] UKUT 336 (IAC) in which judgment by the Court of Appeal is pending. However, for individuals such as the Appellant whose offending conduct took place prior to 31 December 2020, the applicable legal framework is set out in Abdullah. Vargova does not apply to the Appellant’s situation because (i) her offending took place prior to 31 December 2020, and (ii) she did not have retained rights as at the end of the transition period.
15. Although the First-tier Tribunal judge’s reasoning was somewhat sparse, on the facts of the case he was plainly right to conclude that the Appellant could not benefit from the Withdrawal Agreement or the transitional EEA Regulations. There was no material error of law in that conclusion.
Ground 2 – Article 8
16. The Appellant’s grounds of appeal assert that the First-tier Tribunal judge acted unfairly in refusing her second application for an adjournment of the appeal hearing in order to allow her partner to attend and give evidence.
17. The First-tier Tribunal judge noted (§16) that the Appellant did not request an adjournment of the appeal hearing, although she had previously requested (and been granted) an adjournment in April 2025. It therefore does not appear that a second adjournment application was made or refused by the judge as the Appellant suggests in her grounds.
18. Even if the Appellant had made a second application for an adjournment, I do not consider that the First-tier Tribunal would have acted unfairly in refusing it. This was an appeal to which the Practice Direction of the Immigration and Asylum Chamber of the First-tier Tribunal applied, which emphasises the need for both parties to present their evidence at an early stage and the importance of compliance with case management directions. As the Tribunal noted, the Appellant had already been granted an adjournment in order to prepare and present evidence for her appeal but had provided little documentary evidence about her relationship with her partner or the reasons why her removal would have unduly harsh effects on him. The Appellant had not complied with the previous case management order and had not provided an appeal bundle or a skeleton argument. The Appellant’s partner had not provided a witness statement or letter in support of the Appellant’s appeal; there was no supporting evidence of his claimed studies or his health condition. I consider that given the lack of evidence from the Appellant’s partner and the lack of evidence from the Appellant about their relationship, as well as the Appellant’s previous non-compliance with the case management order, that if a second application for an adjournment had been made, it would not have been unfair to refuse it.
19. I conclude that whether or not a second adjournment application was made, there was no error on the part of the First-tier Tribunal in not adjourning the appeal hearing. The judge was not required to consider for himself whether to adjourn the hearing and there was in any event no unfairness to the Appellant in being required to proceed.
20. Neither ground of appeal identifies a material error of law in the First-tier Tribunal’s decision and I decline to set the decision aside. The decision of the First-tier Tribunal dismissing the Appellant’s appeal therefore stands.
Notice of Decision
The decision of the First-tier Tribunal did not involve the making of a material error of law.
The Appellant’s appeal is dismissed.

L Hirst

Judge of the Upper Tribunal
Immigration and Asylum Chamber

23 December 2025