Tribunal decisions

The decision

IN THE UPPER TRIBUNAL
IMMIGRATION AND ASYLUM CHAMBER Case No: UI-2025-005158
First-tier Tribunal No: EA/01657/2024

THE IMMIGRATION ACTS

Decision & Reasons Issued:

On 11th of March 2026

Before

UPPER TRIBUNAL JUDGE KAMARA

Between

JOANA RITA DE OLIVEIRA CALCADA
(NO ANONYMITY ORDER MADE)
Appellant
and

Secretary of State for the Home Department
Respondent

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

Heard at Field House on 10 March 2026

DECISION AND REASONS
Introduction
1. The Secretary of State has been granted permission to appeal the decision of the First-tier Tribunal allowing the appellant’s deportation appeal following a hearing which took place on 11 July 2025.
2. However, for ease of reference hereafter the parties will be referred to as they were before the First-tier Tribunal.
3. Permission to appeal was granted by the First-tier Tribunal on 13 October 2025.

Anonymity
4. The First-tier Tribunal did not issue an anonymity order. I take into account the principle of open justice and see no reason to make an order, so none is made.
Factual Background
5. The appellant is a national of Portugal now aged forty-six who first arrived in the United Kingdom in 2003. Thereafter the appellant acquired a series of criminal convictions, mainly drug related.
6. The appellant applied for leave under the European Union Settlement Scheme on 13 January 2023.
7. 12 April 2023, she was convicted of two counts of being concerned in the supply of Class A drugs for which she received a prison sentence of 2 years and 7 months.
8. On 10 May 2023, the appellant made a human rights claim based on her long residence in the United Kingdom as well as her family life with her son, who was then a minor.
9. The appellant’s human rights claim was refused by way of a decision dated 22 March 2024. In that decision the respondent explained that the appellant’s deportation was conducive to the public good because she had been sentenced to a period of at least 12 months and also because she was a persistent offender. In considering the Exceptions to deportation set out in section 117C of the Nationality, Immigration and Asylum 2002, it was accepted that the appellant had a genuine and subsisting relationship with her child who was born British and that it would be unduly harsh to expect him to live in Portugal. Nonetheless, it was not accepted that it would be unduly harsh for the appellant’s child to remain in the United Kingdom if the appellant was deported, partly because he had largely grown up in the care of his grandparents. The respondent noted that the appellant had not claimed to have a family life with a partner. In considering private life in respect of Exception 1 to deportation, it was not accepted that the appellant had been lawfully resident in the United Kingdom for most of her life and nor was it accepted that there would be very significant obstacles to the appellant’s reintegration in Portugal. In addition, there were found to be no very compelling circumstances which outweighed the public interest in deporting her.
10. On the same date the appellant’s EUSS application was also refused on grounds of suitability under Appendix EU15.
The decision of the First-tier Tribunal
11. Following the hearing before the First-tier Tribunal, the judge concluded that the Immigration (European Economic Area) Regulations 2016 applied rather than section 117C of the 2002 Act. The judge allowed the appeal as he did not find the appellant to pose a genuine, present and sufficiently serious threat to society and found the decision to deport her to be disproportionate.
The appeal to the Upper Tribunal
12. The grounds of appeal encompass multiple issues. In particular, it is argued that there was procedural unfairness, that the judge misdirected himself in failing to apply the relevant law in several respects, and, furthermore provided inadequate reasons throughout.
13. Permission to appeal was granted on the basis sought.
The error of law hearing
14. The matter comes before the Upper Tribunal to determine whether the decision contains an error of law and, if it is so concluded, to either re-make the decision or remit the appeal to the First-tier Tribunal to do so. A bundle was submitted by the Secretary of State containing, inter alia, the core documents in the appeal, including the appellant’s and respondent’s bundles before the First-tier Tribunal.
15. There was no attendance by or on behalf of the appellant. I am satisfied that the notice of hearing was sent both by post and email to the appellant on 9 February 2026. There is no indication that either communication did not reach the appellant. There has been no communication from the appellant to the Upper Tribunal at any stage, including in response to the email informing the appellant of the receipt of the Secretary of State’s appeal, in response to the notice of hearing or in response to the query as to whether an interpreter was required. There is no telephone number for the appellant on CE-file. By 1100 am the appellant had not appeared and had not communicated with the Upper Tribunal. My clerk sent an email to the appellant and a further half an hour was given to the appellant to respond. No response was received. In view of the total lack of communication from the appellant together with the lack of any indication that anything would be achieved by adjourning the hearing, I decided that it was in the interests of justice to proceed in her absence.
16. I am grateful to Mr Nappey for his helpful and clear submissions.
17. At the end of the hearing I announced that I was satisfied that the decision of the First-tier Tribunal contained material errors of law.
Discussion
Procedural unfairness
18. The relevant issues to be determined at the hearing before the First-tier Tribunal were agreed at a Case Management Review hearing which took place on 27 January 2025. The issues were the same as those which had been identified by the respondent in the decision under challenge. That hearing was attended by the appellant, in person. The respondent was not in attendance. Those issues were confined to Article 8 and whether the appellant could meet the exceptions to deportation in s.117C Nationality, Immigration and Asylum Act 2002, specifically those based on relationship with a qualifying child and her private life. The sole remaining issue was whether there were very compelling circumstances over and above exceptions 1 or 2 which would render deportation disproportionate.
19. The case presented to the First-tier Tribunal was based on the agreed issues. Indeed at [3-9] of the decision, where the judge sets out the parties’ respective positions, it can be seen that there is no reference to the 2016 Regulations. Notwithstanding, the clear parameters of this case, at [20], the judge states that he notes that this is an appeal where 2016 Regulations apply, proceeds to both consider the appeal on this basis to allow [20-28]. There is no indication from the documentation in this case that the judge put the respondent or indeed the appellant on notice that he would be considering her case under the 2016 Regulations. I am fortified in that view by the judge’s summary of the respondent’s closing submissions, at [16], which make no reference to the said Regulations.
20. For the judge to consider the Regulations without informing the parties and inviting their submissions was obviously procedurally unfair and it renders the decision unsafe, as the majority of his findings centre on issues under the Regulations. This procedural error suffices to render the decision unfair and justifies the setting aside of the decision as a whole. Nonetheless, I will briefly address other material errors in the decision below.
Misdirections in law/ Inadequacy of reasons
21. Even if the judge was correct in finding that the 2016 Regulations had application in this case, his findings were unsafe. He provided no explanation as to how he came to the conclusion that the Regulations applied. Furthermore, the judge did not make any findings in respect of whether the appellant was a relevant EU national in terms of length and nature of her residence and nor did he engage with the prospect of her criminality and periods of imprisonment interrupting that residence. The judge did not identify the level of protection to which the appellant was entitled and made no reference to the fundamental interests of society before allowing the appeal under the Regulations.
22. Despite the Exceptions being the focus of the appeal, the judge only briefly considered section 117C in just one paragraph [29] of the decision. No clear findings were made in respect of Exceptions 1 or 2. Regarding Exception 1, the judge simply repeated the evidence given by the appellant as to her residence in the United Kingdom without considering whether she had lawfully been resident in the United Kingdom for most of her life. At no point did the judge say anything about whether there were very significant obstacles to the appellant’s reintegration in Portugal. In relation to Exception 2, the judge did not mention the unduly harsh stay or go scenarios and did not engage with the fact that the appellant’s son was residing with the grandparents who had been looking after him. The appellant relied upon a relationship with a fiancé but the judge made no findings as to whether the undue harsh test was met in this respect. The judge made no findings at all in relation to very compelling circumstances.
23. The entirety of the judge’s findings were legally unsound and insufficiently reasoned and are set aside with none preserved.
24. I canvassed Mr Nappey as to the disposal of this appeal and he was of the view that the matter ought to be remitted owing to the unfairness involved. Applying AEB [2022] EWCA Civ 1512 and Begum (Remaking or remittal) Bangladesh [2023] UKUT 00046 (IAC), I carefully considered whether to retain the matter for remaking in the Upper Tribunal, in line with the general principle set out in statement 7 of the Senior President’s Practice Statements. I took into consideration the history of this case, the nature and extent of the findings to be made as well as the fact that the nature of the errors of law in this case meant that the parties were deprived of an adequate consideration of this appeal.
25. I further consider that it would be unfair for either party to be unable to avail themselves of the two-tier decision-making process and therefore remit the appeal to the First-tier Tribunal.

Notice of Decision
The making of the decision of the First-tier Tribunal did involve the making of an error on a point of law.
The decision of the First-tier Tribunal is set aside.
The appeal is remitted, de novo, to the First-tier Tribunal to be reheard by a different judge.

T Kamara

Judge of the Upper Tribunal
Immigration and Asylum Chamber

10 March 2026