Tribunal decisions

The decision

IN THE UPPER TRIBUNAL
IMMIGRATION AND ASYLUM CHAMBER
Case Nos: UI-2025-004823
UI-2025-004824

First-tier Tribunal Nos: HU/00610/2024
EA/02597/2024

THE IMMIGRATION ACTS

Decision & Reasons Issued:
On 7th January 2026

Before

UPPER TRIBUNAL JUDGE KEBEDE

Between

HUSSEIN DJABOURI
Appellant
and

SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: Ms Physsas, instructed by Turpin & Miller LLP
For the Respondent: Ms L Clewley, Senior Home Office Presenting Officer

Heard at Field House on 12 December 2025

DECISION AND REASONS

1. The appellant is a citizen of France, born on 13 April 2001. He appeals, with permission, against the decision of the First-tier Tribunal dismissing his appeals against two decisions: the respondent’s decision of 21 March 2024 to refuse his human rights claim further to a deportation order made against him under section 32(5) of the UK Borders Act 2007; and the respondent’s decision of 13 December 2024 refusing his application under the EU Settlement Scheme.

2. The appellant was born in the UK and has lived lawfully in the UK since birth, but he is not a British citizen. His mother is French and his father is Algerian. He was issued an EEA permanent residence card on 15 November 2006.

3. On 26 February 2019 the appellant was convicted of driving offences and possessing a Controlled Drug – Class A. On 6 December 2019, he was convicted of possessing a Controlled Drug with Intent to Supply – Class A – Heroin; and possessing Controlled Drug with Intent to Supply – Class A – Cocaine, for which he received a 24 month suspended sentence suspended for 24 months.

4. On 22 October 2021, the appellant was convicted of two counts of robbery and one count of possessing a knife blade/ sharp pointed article in a public place, offences which took place on 23 September 2021 and for which he was sentenced on 20 January 2022 to two sentences of three years’ imprisonment in a Young Offenders Institute and nine months’ imprisonment in a Young Offenders Institute, to be served concurrently, together with the activation of six months of his suspended sentence, making a total of three and a half years’ imprisonment.

5. As a result of that latter conviction, the respondent, on 17 September 2022, issued a stage 1 deportation decision pursuant to the Immigration Act 1971 and the UK Borders Act 2007, whereby the appellant’s deportation was deemed to be conducive to the public good under section 3(5)(a) and in accordance with section 32(5) of the UK Borders Act 2007. The appellant was issued with a section 120 notice and invited to make representations as to why he should not be deported from the UK.

6. On 20 June 2023, the appellant was convicted of possessing a Controlled Drug with intent to Supply – Class A – Cocaine, for which he received a sentence of five years’ imprisonment, possessing Controlled Drug with intent to Supply – Class A – Crack Cocaine for which he received 54 months’ imprisonment and possessing Controlled Drug with intent to Supply – Class A – Heroin, for which he received 54 months’ imprisonment, the latter two of which were to be served concurrently, making a total of five years’ imprisonment. Those were offences committed on 23 July 2020 (as stated in the PNC).

7. On 9 October 2023 the appellant’s legal representatives made representations that he should not be deported because he was a British citizen. The respondent replied on 17 November 2023, rejecting the assertion that the appellant was a British citizen on the basis that, at the date of his birth, neither of his parents had ILR. The appellant has not since sought to challenge that decision and it is therefore not a matter of dispute that he is not a British citizen.

8. The respondent considered the appellant’s representations as a human rights claim and made a decision on 21 March 2024 refusing that claim in a stage 2 deportation decision. A deportation order was signed on the same day, pursuant to section 32(5) of the UK Borders Act 2007. In the decision refusing his human rights claim, the respondent set out the appellant’s convictions in January 2022 and June 2023 and the Judge’s Sentencing Remarks in relation to both and considered that he would need to provide evidence of a very strong Article 8 claim over and above the circumstances described in the exceptions to deportation, given the nature of his offending. The respondent noted that the appellant’s only representation was made on the basis that he was a British citizen as he was born to EU nationals exercising treaty rights at the time of his birth. He relied on case law (R (Roehrig) v SSHD [2023] EWHC 31 (Admin)) which was being considered in the Court of Appeal at the time. The respondent did not accept that the appellant was a British citizen and considered that he was therefore liable to deportation. The respondent considered that the appellant was a persistent offender, that he had failed to provide any evidence of rehabilitation, that there would be no very significant obstacles to his integration in France and that there were no very compelling circumstances which outweighed the public interest in his deportation.

9. The appellant appealed against the refusal of his human rights claim on 12 April 2024, under section 82(1) of the Nationality, Immigration and Asylum Act 2002.

10. The matter came before the First-tier Tribunal on 29 July 2024, at which time directions were issued for both parties to file and serve skeleton arguments clarifying their respective positions as to whether the domestic or EU provisions relating to deportation applied, and for the respondent to clarify which offending was relied upon. There was some lack of clarity as to whether there was an outstanding EUSS application, but in any event the appellant lodged an out of time EUSS application on 14 November 2024. It seems to be accepted that the appellant did not make an application under the EUSS prior to 30 June 2021 (I note the appellant’s skeleton argument before the First-tier Tribunal at [5] in that regard), but applied thereafter.

11. In response to the directions, the appellant did not produce a skeleton argument, but made submissions on 12 September 2024 asserting that the respondent was clearly relying on the offence of 23 July 2020 (which gave rise to the sentence of 5 years’ imprisonment in June 2023), the effect of which was that the respondent had to consider that conduct in accordance with Regulation 27 of the EEA Regulations 2016 as saved and in accordance with the definition of a deportation order in Appendix EU.

12. The respondent replied to the court directions in a letter dated 13 December 2024 in which she clarified that the deportation order was made only on the basis of the appellant’s offences of two counts of robbery, having a blade or article which was sharp or pointed in a public place and a breach of a suspended sentence, and that the date of the criminal conduct for those offences was 23 September 2021, after the UK’s exit from the European Union. It was stated that the reference to other offending was simply a statement of fact made in the context of setting out the public interest considerations under sections 117C(1) and (2) of the Nationality, Immigration and Asylum Act 2002.

13. The same day, the respondent made a decision refusing the appellant’s application under the EUSS on the basis that he was subject to a deportation order issued on 21 March 2024, such that he did not qualify under the EUSS on the grounds of suitability. The appellant appealed against that decision under the Immigration (Citizens’ Rights Appeals) (EU Exit) Regulations 2020.

14. The respondent filed and served a respondent’s review on 9 February 2025. The appellant filed and served a skeleton argument dated 12 February 2025 and, in response, the respondent filed and served a further respondent’s review on 19 February 2025.

15. Both appeals were listed together and heard in the First-tier Tribunal on 27 February 2025.

16. In a decision promulgated on 6 March 2025 dismissing the appeals, the First-tier Tribunal Judge confirmed that she had asked for clarification from the Home Office Presenting Officer of the respondent’s position, having noted that whilst it appeared that the decision taken under s.32(5) of the UK Borders Act 2007 was based on the appellant’s conduct of 23 September 2021, there was also reference in the same decision to the totality of the appellant’s offending when the issue of very compelling circumstances was addressed. The judge recorded that the Home Office Presenting Officer unequivocally stated that the respondent was only relying, in the appellant’s deportation, on the two counts of robbery and one count of having a blade or article which was sharp or pointed in a public place, relating to offences which took place on 23 September 2021 and which had led to a sentence of imprisonment of under four years. It was agreed that the judge would not rely on any other offending when considering the public interest in the appellant’s deportation. The judge recorded that the appellant’s representative, Ms Physass, took instructions and accepted that in those circumstances the appellant’s appeal against deportation fell only to be considered under the domestic regime. The judge recorded further that it was agreed that the appellant was born in the UK but was not British and that he had lived lawfully in the UK for more than half of his life, and that the issues in dispute were whether he was socially and culturally integrated, whether he would face very significant obstacles to integration, and whether the decision to deport him was disproportionate.

17. The judge accepted that the appellant was socially and culturally integrated in the UK and therefore satisfied section 117(C)(4)(b), but was not satisfied that he would face very significant obstacles to integration in France. The judge found that there was significant public interest in the appellant’s deportation given the nature of the offending with which he was involved on 23 September 2021 and that weighing against that, as a very compelling circumstance, was only the fact that he was born in the UK, that he had lived here all of his life and in his mind was British. The judge was not persuaded that there were very compelling circumstances that outweighed the public interest in the appellant’s deportation. The judge considered that, following the respondent’s decision to solely rely on the appellant’s conduct on 23 September 2021, the submissions made by Ms Physass in her skeleton argument in relation to the EUSS decision fell away. The judge accordingly dismissed the appeal on human rights grounds and found that the decision was not in breach of Appendix EU of the immigration rules or in breach of the appellant’s rights under the Withdrawal Agreement.

18. The appellant sought permission to appeal against the judge’s decision on four grounds. Firstly, that the judge had materially erred as to the approach to be taken in the appeal given that the stage 2 decision referred to both pre-31 December 2020 conduct and post 31 December 2020 conduct. Secondly, that the judge had misdirected herself, having decided that the Tribunal would only consider the post-31 December 2020 offences, by considering the pre-31 December 2020 conduct in referring to the appellant’s ‘criminal activities’. Thirdly, that the judge had erred in her assessment of very significant obstacles under Exception 1 in section 117C(4)(c). Fourthly, that the judge had erred in her assessment of very compelling circumstances.

19. Permission was granted in the First-tier Tribunal on all grounds, as follows:

“2. The grounds assert that the Judge erred in determining the appellant’s appeal by reference to the domestic deportation regime as opposed to the EEA Regulations, given the deportation decision and the deportation order reference pre-and post-Brexit offending conduct; in materially misdirecting herself and in her assessment as to whether the appellant would experience very significant obstacles to integration in France and very compelling circumstances.

3. The decision discloses an arguable, material error of law given the decision of the Upper Tribunal in Castro (Appendix EU, ‘deportation order’) Portugal (2024) UKUT 393 and in Abdullah & others )EEA: deportation appeals; procedure) (2024) UKUT 00066.

4. Whilst I am not convinced that there is merit in the assertion that the Judge erred in her assessment of very significant obstacles or very compelling circumstance, particularly in light of the more recent decision in Ackom v SSHD (2025) EWCA Civ 537, given the materiality of the findings in relation to the question of proportionality, whether under the Domestic regime or the EEA Regulations, permission to appeal on all grounds raised is allowed.”

20. The respondent produced a rule 24 response opposing the appeal. Ms Physass, in turn, replied to the rule 24 response.

Hearing and Submissions

21. The matter came before myself for a hearing. Both parties made submissions.

22. Ms Physsas submitted, with regard to the first ground, that it was evident from the stage 1 and stage 2 deportation decisions that the respondent had relied upon offences committed prior to the specified date. The deportation order and the deportation decision had to be read together. She submitted that whilst the EUSS refusal decision did not specify whether it relied on conduct prior to the specified date, it could be inferred from the stage 2 deportation decision and the deportation order that the respondent was considering all of the appellant’s offending. Ms Physsas submitted that the respondent was relying on the appellant’s drugs offences for which he was sentenced post-Brexit, whereas they were committed prior to the specified date. Although the respondent confirmed at the hearing before the First-tier Tribunal that reliance was only placed on the September 2021 offence, the respondent was not able to take that position on the facts of the case. The respondent could not pick and choose which conduct to be relied upon.

23. Ms Physsas said that, in so far as the judge’s decision recorded at [12] that she had accepted that the respondent was only relying on the September 2021 conduct, she could only apologise. She submitted that that position had not been accepted in her skeleton argument. I asked Ms Physsas if the judge had accurately reported what she had said, at [12] of her decision, and she accepted that she had, but she said that that was only because the judge had accepted what the respondent said and that her hands were therefore tied. The judge was wrong to take the view that the respondent’s position would not prejudice the appellant when it clearly did. Ms Physsas relied on the decision in Castro (Appendix EU, ‘deportation order’) Portugal (2024) UKUT 393 and the correct interpretation of “deportation order” in Annex 1 to Appendix EU of the immigration rules. She submitted that it was clear in this case that the respondent had relied on both pre and post-specified date conduct, including the appellant’s drugs offences committed in 2019 leading to the five year sentence of imprisonment. The judge ought therefore to have considered Regulation 27 of the EEA Regulation 2016. In the terms set out in Castro, failing to do so “would effectively remove all of the wider protections available to EEA nationals in relation to conduct before the specified date”, which was the effect of the decision in this case. Ms Physsas also relied upon the Home Office’s own guidance in that respect, in the “Conducive deportation” version 3.0 published on 15 March 2024, under the heading ‘EEA citizens sentenced to a period of imprisonment’ which she said made it clear that it was a mandatory requirement to consider Regulation 27 if there was pre-Brexit conduct. The judge ought therefore to have considered both Regulation 27 and the domestic regime, as in Castro, and in the terms stated at [85] in Abdullah & Ors. Her failure to do so was a material error of law.

24. With regard to the second ground, Ms Physsas submitted that the judge had misdirected herself, as she had decided that the Tribunal would only consider post-31 December 2020 offences, but then went on to consider pre-31 December 2020 offences, particularly when referring to the appellant’s “criminal activities” at [33] of her decision. The judge had considered the OASys report, which in turn referred to the earlier offences. The appellant had been prejudiced as a result as he had been denied the protection and safeguards under Regulation 27. In addition, when considering the appellant’s criminal offences and the OASys reports, the judge had failed to consider the references to exploitation and trafficking in the OASys reports. Ms Physsas submitted with regard to the third and fourth grounds of appeal that, when considering very significant obstacles to integration and very compelling circumstances, the judge failed to consider the expert report and in particular the references therein to the appellant’s vulnerability to exploitation, the effect of deportation on his mental health and his lack of ties to France. Ms Physsas asked that the judge’s finding, that the appellant was socially and culturally integrated in the UK, be preserved, but that her decision otherwise be set aside as she had erred in her consideration of very significant obstacles to integration in France. Whilst there was reliance upon the case of Ackom v SSHD [2025] EWCA Civ 537 in the grant of permission, that case involved an appellant who had come to the UK as a child, whereas this appellant had been born here. The judge had failed to consider the guidance in Akinyemi v SSHD [2019] EWCA Civ 2098 at §§50-51, to the effect that less weight was to be attached to the public interest in deportation where an appellant was born here.

25. Ms Clewley then made her submissions. She relied upon the respondent’s clarifying letter of 13 December 2024 in response to the court’s directions of 29 July 2024, which made it clear that the respondent was only relying on post-transition conduct. Ms Clewley submitted that the documents must be read together as a whole. That was key to the application of Castro, where the respondent was relying upon pre and post-transition conduct. The decision in Castro referred throughout to the conduct ‘relied upon’ by the respondent and not simply to the appellant’s conduct. Ms Clewley accepted that the earlier letters made reference to the appellant’s earlier offending but submitted that the matter was clarified following the court’s direction. There was therefore no misdirection by the judge and no prejudice to the appellant, who would have been well aware of the respondent’s position. As for ground two, the judge clearly considered only the post-transition conduct and there was no error of law in that regard. Ms Clewley submitted that there was no evidence before the judge of the trafficking issue as there was no NRM referral or decision and no evidence of the appellant’s claimed vulnerabilities. Although the judge did not specifically refer to the expert report, she considered all relevant circumstances when assessing the question of very significant obstacles to integration. Although the judge did not specifically refer to the case of Akinyemi, she had regard to the fact that the appellant was born in the UK and spent all his life here and she took that into account in her balancing exercise. There were no material errors of law in the judge’s decision.

26. Ms Physsas, in response, submitted that the clarifying letter of 13 December 2024 still referred to the pre-Brexit conduct, namely the appellant’s drugs offences which were committed in 2020. The respondent was therefore seeking to have it both ways, and was not following her own guidance. The judge relied on pre and post-Brexit conduct in her proportionality assessment, which could not be separated from the rest of her consideration. The respondent’s decision was not in accordance with the law if Regulation 27 was not considered. As for the expert report, that went to the heart of the proportionality assessment, and the judge’s failure to consider the report was therefore a material error.

Analysis

27. It seems to me that the appellant’s first ground of challenge is simply an attempt to resurrect an argument which ought to have been made before the First-tier Tribunal and an attempt to resile from a concession that was made instead. There can be no suggestion that the appellant was taken by surprise by the respondent’s case that reliance was placed only upon post-Brexit conduct and that, as such, Regulation 27 did not apply and that the domestic scheme for deportation was solely applicable. The matter was raised at a CMR hearing before the First-tier Tribunal and followed by directions issued on 29 July 2024, as referred to at [7] of the First-tier Tribunal’s decision, whereby the respondent was directed to clarify which offending was relied upon for the deportation decision. The respondent issued a response to those directions in a letter dated 13 December 2024 and produced a second respondent’s review in which that position was made clear. In addition the respondent reiterated her position at the hearing, in what the judge described at [11] as “unequivocal” terms.

28. I accept that the first respondent’s review of 9 February 2025 muddied the waters somewhat by referring, at [4], to the possession of drugs offences leading to a sentence of 54 months, when those offences were pre-Brexit offences committed in July 2020, albeit not resulting in a conviction until June 2023. However the decision of 13 December 2024 made it clear that that offending and conviction had not formed part of the deportation decision and that it was only the 23 September 2021 which was relied upon, and that was confirmed by the respondent in the second review and at the hearing. Indeed it is relevant to note that the deportation proceedings against the appellant were commenced prior to his conviction for the July 2020 offences (with the stage one deportation decision issued on 17 September 2022, but the conviction taking place in July 2023), so that it cannot be said that it was based upon that earlier conduct. In the circumstances, the respondent’s position was clear by the time of the hearing.

29. Ms Physsas accepts that she made the concession recorded at [12] and that the issues at [13] were agreed by all parties, but she now submits that she did so because she considered her hands to be tied by the judge’s acceptance of the respondent’s position. However it was clearly open to her, as experienced counsel, to argue at that point that the respondent was not entitled to take that position given the contents of the various refusal decisions. She did not do so, and the judge cannot now be criticised, or said to have erred in law, by proceeding on the basis that the issues before her, as set out at [13], were agreed by both parties and were apparently settled.

30. In so far as Ms Physsas submits that the respondent did not follow the stated position which had led to her making that concession, I do not agree. There is nothing in the judge’s decision which suggests that the respondent departed from the position taken in the 13 December 2024 letter, the second respondent’s review and the statement at the commencement of the hearing, that it was only post-31 December 2020 conduct that was relevant to the making of the deportation order. Ms Physsas seeks to draw support for her argument from the fact that the Home Office presenting officer, in his submissions before the First-tier Tribunal, relied on the stage 2 decision which referred extensively to pre-31 December 2020 offences, and she submits that those parts of the decision should have been withdrawn if the respondent was only relying upon post 31-December 2020 conduct. However the reference in the stage two deportation decision to pre-31 December 2020 conduct was as a statement of facts relevant to the appellant’s immigration history and was made in the context of setting out the public interest considerations under sections 117C(1) and (2) of the Nationality, Immigration and Asylum Act 2002, and not as justification for the decision under section 32 of the UK Borders Act 2007. That was made clear in the respondent’s letter of 13 December 2024.

31. In the circumstances, it seems to me that the appellant is seeking, by way of these proceedings, to have a second bite of the cherry and to present an argument which ought to have been made in the First-tier Tribunal appeal, but was instead conceded. As already stated, I do not consider that the judge erred in law in proceeding on the basis of the position agreed by the parties, namely that it was the domestic deportation scheme which applied in the appeal.

32. In any event, I do not consider that there is merit in the appellant’s argument that the respondent’s decision to issue the deportation order against him was, contrary to what was stated at the hearing, based upon both pre-31 December 2020 and post-31 December 2020 conduct. As already stated, the respondent had made her position clear, in her letter of 13 December 2024, her second respondent’s review, and at the hearing, that the deportation order was made solely on the basis of the appellant’s conviction for conduct committed on 23 September 2021. The deportation proceedings were commenced prior to the appellant’s conviction on 20 June 2023, for drugs offences committed on 23 July 2020, and so did not rely upon pre-31 December 2020 conduct in that respect. The stage 1 deportation letter was clear in its reliance upon the post-31 December 2020 conduct, namely two counts of robbery, having a blade / article which was sharply pointed in public place and breach of a suspended sentence, for which he was sentenced to three and a half years’ imprisonment. As already stated, in so far as there was reference to earlier conduct, that was simply by way of a statement of facts relevant to the appellant’s immigration history and in the context of setting out the public interest considerations under sections 117C(1) and (2). In so far as the appellant relies upon the conviction for the 23 September 2021 offences being based upon the activation of a suspended sentence related to pre-31 December 2020 conduct, the respondent makes the valid point in the rule 24 response that it was the post-Brexit conduct which had activated the suspended sentence.

33. The same can be said of the stage 2 decision, the refusal of the appellant’s human rights claim, dated 21 March 2024, which referred to the appellant’s pre-31 December 2020 drugs offences in the context of the public interest considerations in the assessment of Article 8, which again was clarified in the letter of 13 December 2024. I do not agree with Ms Physsas that, in relying upon pre-Brexit conduct to justify a decision on the public interest, the respondent was simply picking and choosing which conduct to rely on to justify the relevant decisions. It seems to me that a clear distinction must be drawn between the conduct relied upon by the respondent to make the deportation decision and pursue deportation proceedings, in deciding which is the applicable deportation regime/scheme (the domestic scheme or Regulation 27 of the EEA Regulations), as opposed to conduct taken into account when considering the appellant’s private life in general as part of the ‘very compelling circumstances’ assessment. It would be a wholly artificial exercise for the respondent, having commenced deportation proceedings on the basis of post-Brexit conduct, to have to then ignore any pre-Brexit conduct when making her stage 2 decision and when considering matters relevant to the appellant’s private life and overall circumstances under Article 8. It is clear from the clarification in the respondent’s letter of 13 December 2024, that it was the three year sentence arising from the conviction for robbery which was the relevant conduct relied upon in making the deportation decision.

34. I do not agree with Ms Physsas’s submission, that the reasoning in Castro applied to this appellant’s circumstances such that the respondent was bound to have considered his case under Regulation 27. The situation in Castro was entirely different, as was the issue being determined. In that case, the respondent accepted that the deportation decision that had been made against the appellant was based upon conduct occurring both pre and post-Brexit. The EUSS decision in that case had included a detailed consideration of Regulation 27, and had stated in terms that the decision to deport was made on the basis of conduct committed prior to the specified date and was therefore considered by the First-tier Tribunal to have been predicated on the basis that EU15(1)(a) applied. The respondent, in Castro, was making the argument that the definition of “deportation order” in Annex 1 of Appendix EU would be met irrespective of the condition in (b)(ii) where there was an order made under section 5(1) of the Immigration Act 1971 in respect of the conduct committed after the specified date. The respondent’s position was that it was sufficient that the deportation decision relied on conduct after the specified date to meet the definition of deportation order in paragraph (b)(i), irrespective of the reliance on conduct prior to the specified date or whether the decision in relation to that was in accordance with Regulation 27 of the EEA Regulations. The Tribunal rejected that argument, finding that it was not sufficient for only one to be met (ie conduct committed before or after the specified date) and that the definition of “deportation order” had therefore to be interpreted to read ‘and/or’ between paragraphs (b)(i) and (ii). The Tribunal observed at [50] that:

“if it was sufficient for a deportation order, which on the facts relies on both pre and post specified date conduct, to meet the definition in paragraph (b)(i) only in relation to post specified conduct; that would effectively remove all of the wider protections available to EEA nationals in relation to conduct before the specified date and undermine those safeguards set out in the Withdrawal Agreement and elsewhere as part of the EUSS.”

35. In the case of the appellant before me, however, the respondent has made clear that she was not relying upon both pre and post-Brexit conduct, but only upon post-Brexit conduct. The respondent was not relying upon the argument made in Castro. At [53] of the decision in Castro, the Upper Tribunal said that if the respondent’s position was that only the domestic deportation scheme applied, the EUSS decision “need not have gone beyond the first few paragraphs of the decision and simply said that there was a deportation order as defined in paragraph (b)(i) of the Annex to Appendix EU in force and therefore the application is refused under paragraph EU15(1).” In this case, and in line with that observation, the EUSS decision of 13 December 2024 simply refers to the deportation order of 21 March 2024 in concluding that the appellant did not qualify under the EUSS. In the circumstances it seems to me that the decision in Castro does not assist the appellant.

36. Ms Physsas also relies upon the respondent’s guidance “Conducive deportation” version 3.0 published on 15 March 2024 in submitting that the respondent was required to apply the public policy or public security test as set out in Regulation 27 of the EEA Regulations. She relies in particular upon the following at page 8 of the guidance, under the heading “EEA citizens sentenced to a period of imprisonment”:

“If they had acquired a right of permanent residence and have conduct committed before 11pm GMT on 31 December 2020, you must apply the public policy or public security test, as set out in regulation 27 of the EEA Regulations 2016.”

37. However it is relevant to look beyond that introduction to the section entitled “Relevant persons with conduct spanning the end of the transition period” at page 21, which states as follows:

“In order to assess whether the deportation decision should be made under the public policy, public security or public health test or on conducive grounds you must take a 3-staged approach.

First, you must consider conduct committed after 11pm GMT on 31 December 2020 to ascertain whether this conduct in itself meets the threshold for deportation under the 2007 Act or under the 1971 Act. If so, you can then proceed to make a decision on conducive grounds…

Second, if the threshold for deportation under the 2007 Act or 1971 Act is not met taking account of conduct committed after 11pm GMT on 31 December 2020 alone, you must consider conduct committed before 11pm GMT on 31 December 2020 and assess it in accordance with regulation 27 of the EEA Regulations 2016…

Third, conduct that occurred before 11pm GMT on 31 December 2020 may be relevant in some cases, in assessing the seriousness of conduct that occurred thereafter. For example, a conviction for wounding with intent post-Transition Period could be seen as more serious if there is a pre-Transition Period conviction for possession of a bladed article. If reaching a decision that the threshold for deportation under the 2007 Act or 1971 Act is met, you must ensure the decision is based on conduct after 11pm GMT on 31 December 2020 and that conduct after 11pm GMT on 31 December 2020 is sufficiently serious on its own to justify the decision”

38. It seems to me that the respondent’s decision to proceed to make a decision on conducive grounds was wholly in line with that policy, in accordance with the first stage, and I reject the assertion that the guidance required the respondent to apply the test in Regulation 27.

39. As for the assertion in the second ground, that the judge misdirected herself by considering the appellant’s pre-Brexit conduct despite having decided that only post-Brexit conduct was to be considered, I do not accept that that is what the judge did. The appellant relies, in making that assertion, upon [33] of the judge’s decision and her reference therein to the appellant’s “criminal activities” which is said demonstrates that the judge relied upon the appellant’s pre-Brexit conduct. However, as I observed previously at [33] of this decision, this fails to recognise and appreciate the distinction between the conduct relied upon to make the deportation decision and pursue the deportation proceedings and the conduct taken into account when considering the appellant’s private life and overall circumstances for the purposes of Article 8. As I have already mentioned, that is a relevant distinction to be made and does not suggest that the judge was relying upon the appellant’s pre-Brexit conduct in concluding which deportation regime should have applied. It is clear from the judge’s decision, including her record of the relevant issues at [11] and [12] and her findings at [17] and [34], that her consideration was directed at the appellant’s offending in 2021. As for the arguments relating to the OASys reports which made reference to the appellant’s drugs offences committed in 2020, there are no grounds for suggesting that that formed the basis for the respondent’s decision to commence deportation proceedings, or that the conduct was relied upon by the judge when considering the appropriate deportation regime. The judge made specific mention at [14] of Ms Physsas’s submissions in relation to the date of the conduct referred to in the OASys report and was therefore clearly mindful of the timing of the relevant conduct. There was accordingly no misdirection by the judge in her consideration of the appellant’s conduct and offences.

40. Ms Physsas submitted that the appellant suffered prejudice as a result of the respondent’s approach and the judge’s approach, but I do not accept that that is the case. In so far as it is asserted that the appellant was denied the protection and safeguards under Regulation 27, the simple answer is that he was not entitled to that protection, given his post-Brexit conduct giving rise to the deportation proceedings. As Ms Crewley submitted, the appellant was fully aware that the respondent was only relying upon post-Brexit conduct in making the deportation decision and he had every opportunity to address that matter at the hearing. He suffered no prejudice in that respect. Accordingly, there is nothing of any merit in the first two grounds.

41. The third and fourth grounds seek to challenge the judge’s findings on ‘very significant obstacles to integration’ and ‘very compelling circumstances’. Both grounds assert that the judge failed to have regard to the expert evidence in the trafficking report from Colin Caswell and the psychological report from Jane Roberts. However, it is clearly the case that the judge had regard to the trafficking and exploitation issues when assessing the appellant’s private life, in particular referring to the matter as part of the consideration of integration in the UK at [20] and making findings in the appellant’s favour in that regard. Although the judge did not specifically cite the reports it is clear that the expert evidence formed part of her overall consideration. It is relevant, in any event, as Ms Clewley submitted, and as mentioned in the respondent’s review of 9 February 2025, that the judge did not have before her any evidence of a referral having been made to the NRM or of the appellant ever raising a claim that he was trafficked or subjected to modern slavery. The judge gave consideration to all factors relevant to the appellant’s ability to integrate in France, based upon the documentary evidence and the oral evidence of the appellant and his mother, including his health, his level of education, his skills and ability to find employment in France, his language ability and his claimed lack of ties to France. The judge considered relevant caselaw, having regard to the guidance in Secretary of State for the Home Department v Kamara [2016] EWCA Civ 813, but noting that deportation to a European country such as France involved different considerations to those in Kamara, a matter identified in the grant of permission by reference to the more recent decision in Ackom v SSHD [2025] EWCA Civ 537. As Ms Clewey submitted, there was nothing in the expert reports that suggested that the appellant’s needs could not be met in France. Accordingly the assertions made in the third ground do not identify any flaws in the judge’s decision.

42. The same can be said of the fourth ground, which relies in addition upon the case of Akinyemi v SSHD [2019] EWCA Civ 2098 whereby it was found that less weight may be attached to the public interest in deportation where an appellant was born in the UK, and which makes the assertion that the judge materially erred by failing to consider those principles. As Ms Clewley submitted, there was no reference to Akinyemi in the appellant’s skeleton argument, although Ms Physsas in her grounds seeking permission asserts that it was mentioned in her submissions. Nevertheless, whilst the case was not specifically cited by the judge, it is clear from [35] that she gave the appropriate weight to the fact that the appellant was born in the UK, that he had lived here all his life and that he was, in his own mind, British. She recognised that that was, however, the only factor to be weighed in the balance when considering whether there were very compelling circumstances, and it was fully and properly open to her to conclude that that was not sufficient to outweigh the public interest in his deportation.

43. For all these reasons I consider there to be no material errors of law in the judge’s decision. The judge followed the correct approach when considering the relevant deportation scheme, she dismissed the appellant’s deportation appeal under domestic law for the reasons properly and cogently given, and she properly dismissed the appeal under the Immigration (Citizens’ Rights Appeals) (EU Exit) Regulations 2020. The judge’s decision is therefore upheld and the appellant’s appeal is dismissed.

Notice of Decision

44. The making of the decision of the First-tier Tribunal did not involve a material error on a point of law requiring it to be set aside. The decision to dismiss the appeal stands.

Signed: S Kebede
Upper Tribunal Judge Kebede

Judge of the Upper Tribunal
Immigration and Asylum Chamber

22 December 2025