Tribunal decisions

The decision

IN THE UPPER TRIBUNAL
IMMIGRATION AND ASYLUM CHAMBER Case No: UI-2025-005380

First-tier Tribunal No:
DA/00085/2024

THE IMMIGRATION ACTS

Decision & Reasons Issued:

On 23rd of June 2026

Before

UPPER TRIBUNAL JUDGE KAMARA

Between

Mariusz Stanislaw Bresinski
(NO ANONYMITY ORDER MADE)
Appellant
and

Secretary of State for the Home Department
Respondent

Representation:
For the Appellant: In person
For the Respondent: Ms R Arif, Senior Home Office Presenting Officer

Heard at Birmingham Civil Justice Centre on 16 June 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 27 May 2025.
2. While the Secretary of State is the appellant in these proceedings, for ease of reference hereafter the parties will be referred to as they were before the First-tier Tribunal.
Anonymity
3. 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
4. The appellant is a national of Poland aged in his mid-forties who has been residing in the UK since 2004, having come here for work.
5. The appellant was convicted of robbery, wounding with intent to do grievous bodily harm, theft and possession of a bladed article on 11 April 2008. He was sentenced to a Hospital Order under Section 37/41 of the Mental Health Act 1983, being conditionally discharged during January 2021.
6. The Secretary of State granted the appellant indefinite leave to remain under the European Union Settlement Scheme (EUSS) on 26 September 2022.
7. On 3 June 2024, the respondent informed the appellant that the Home Office was considering whether to make a deportation decision against him in accordance with the Immigration (European Economic Area) Regulations 2016 (hereinafter referred to as the Regulations). The appellant was invited to inform the respondent of any reasons why he should not be deported. The appellant’s representations were subsequently considered and on 23 July 2024 his human rights claim was refused. In refusing the appellant’s claim, the respondent acknowledged that owing to having been granted indefinite leave to remain under the EUSS, consideration had been given to whether the appellant’s deportation was justified on ‘serious grounds’ of public policy or public security. The conclusion was that the appellant posed a ‘significant’ threat to the safety and security of the public of the United Kingdom and therefore his deportation was justified. The respondent considered the appellant’s personal circumstances and concluded that the decision to deport him was proportionate.
The decision of the First-tier Tribunal
8. At the hearing before the First-tier Tribunal, the appellant was unrepresented. The appellant informed the Tribunal that he had previously been abusing crack cocaine and continued to drink alcohol in breach of the terms of his conditional discharge. The Tribunal was not satisfied that the appellant’s past and present conduct posed a sufficiently serious threat to the public to justify his removal. The judge remarked that he had he not been so satisfied, he would have found that the appellant’s removal to Poland was proportionate.
The appeal to the Upper Tribunal
9. The single ground of appeal is that the FTT made a material misdirection of law in assessing whether the appellant posed a genuine, present and sufficiently serious threat, in relation to the extent to which his post-offending conduct was considered.
10. Permission to appeal was granted on the basis sought.
The error of law hearing
11. 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 respondent’s bundles before the First-tier Tribunal. The appellant’s evidence submitted to the First-tier Tribunal was provided separately.
12. The hearing was attended as set out above. I heard submissions on behalf of the Secretary of State as well as a brief response from the appellant. The conclusions below reflect those arguments and submissions where necessary.
13. At the end of the hearing, I informed the parties that the decision of the First-tier Tribunal contained no material error of law. I give my reasons below.
Discussion
14. In Kapikanya [2025] EWCA Civ 987, the correct approach to appellate scrutiny of the reasoning of specialist decisions of the First-tier Tribunal was set out. At paragraph 20 the following propositions are noted and approved at [21] as statements of general principle:
(1) The FTT is a specialist fact-finding tribunal, and the UT should not rush to find an error of law in its decisions simply because it might have reached a different conclusion on the facts or expressed themselves differently, as the appeal is available only on a point of law: see AH (Sudan) v Secretary of State for the Home Department [2007] UK HL 49 [2008] 1 AC 678, at [30];

(2) Where a relevant point is not expressly mentioned by the FTT, the UT should be slow to infer that it has not been taken into account: see MA (Somalia) v Secretary of State for the Home Department [2010 UKSC 49 [2011] 2 All ER 65, at [45]

(3) When it comes to the reasons given by the FTT, the UT should exercise judicial restraint and should not assume that the FTT misdirected itself just because not every step in its reasoning is fully set out: see R (Jones) v First Tier Tribunal and Criminal Injuries Compensation Authority [2013] UKSC 19 [2013] 2 All ER 625, at [25];

(4) The issues that the FTT is deciding and the basis on which the FTT reaches its decision on those issues may be set out directly or by inference: see UT (Sri Lanka) v The Secretary of State for the Home Department [2019] EWCA Civ 1095, at [27], and

(5) The judges sitting in the FTT are to be taken to be aware of the relevant authorities and to be seeking to apply them without needing to refer to them specifically, unless it is clear from their language that they have failed to do so: see A4 (Nigeria) v Secretary of State for the Home Department [2020] EWCA Civ 1296 [2020] 4 WLR 145, at [34].
15. There is only one ground of appeal, that is that the judge materially misdirected himself in failing to adequately consider the appellant’s use of substances when considering his conduct relevant to the assessment of whether he poses a genuine, present and sufficiently serious threat, applying Regulation 27 (5)(c).
16. I will reproduce the entirety of Regulation 27(5) for completeness but marking the most relevant passages in bold.
(5) The public policy and public security requirements of the United Kingdom include restricting rights otherwise conferred by these Regulations in order to protect the fundamental interests of society, and where a relevant decision is taken on grounds of public policy or public security it must also be taken in accordance with the following principles—
(a)the decision must comply with the principle of proportionality;
(b)the decision must be based exclusively on the personal conduct of the person concerned;
(c)the personal conduct of the person must represent a genuine, present and sufficiently serious threat affecting one of the fundamental interests of society, taking into account past conduct of the person and that the threat does not need to be imminent;
(d)matters isolated from the particulars of the case or which relate to considerations of general prevention do not justify the decision;
(e)a person’s previous criminal convictions do not in themselves justify the decision;
(f)the decision may be taken on preventative grounds, even in the absence of a previous criminal conviction, provided the grounds are specific to the person.
17. It is argued on the respondent’s behalf that the judge failed to adequately consider that the appellant breached the terms of his ‘release of 2021’ which required him to abstain from taking drugs and alcohol. It is suggested in the grounds that the appellant merely admitted this use. In reality, the judge noted that the appellant was a particularly candid witness [13] and that he volunteered the nature of the conditions attached to his discharge from detention under the Hospital Order and that he had breached them, in respect of substance usage.
18. It is suggested that the judge focused on the fact that the index offence was 17 years ago, that his last conviction was in 2014 and that the appellant was engaging with mental health treatment. The judge was required to consider all relevant factors including the matters highlighted in the grounds. It is, however, wrong to suggest that the judge’s focus was solely on these matters and not on the appellant’s conduct.
19. At [15] the judge sets out in more than adequate detail, the oral and documentary evidence relating to the appellant’s substance use. The judge records that the appellant had stopped his use of crack cocaine just prior to the hearing before the First-tier Tribunal but that his use of alcohol, mainly at the weekends, continued. Furthermore, at [22-25], the judge sets out the respondent’s submissions which include that this case concerns serious grounds of public policy; the list of the fundamental interests of society set out in Schedule 1 of the Regulations as well as Regulation 27 (5)(c) itself.
20. Contrary to what is contended in the grounds, the judge pays particular attention to the physical and psychological harm caused to the victim of the appellant’s crime at [25].
21. Ms Arif submitted that the appellant’s use of substances was indicative of adverse conduct relevant to the assessment under the Regulations, and which the judge failed to adequately consider. That submission is not borne out by the judge’s findings at [26] onwards where the judge considers all the relevant aspects of the appellant’s case. At [29] the judge devotes a paragraph to the appellant’s substance use and finds that this ‘is a matter that can be seen to cause social harm.’
22. On this point, the judge rightly pointed to the absence of any expert or other evidence from the respondent to indicate the level of threat posed by the appellant both at the time of his release in 2021 and at the time of the hearing in 2025.
23. The judge returns to consider the appellant’s conduct in relation to substances at [32], concluding that while this ‘may cause some social harm,’ it was not sufficiently serious to justify his removal.
24. The respondent contends that the judge failed to consider the harm to the appellant’s mental health from taking substances and argues that this is relevant to the threat posed by the appellant. Again, it is relevant that there was no medical or other expert evidence before the judge as to the current impact of past drug use and present alcohol use on the appellant’s mental health or any associated risk of offending.
25. The appellant relied on material in the form of a series of positive references from professional service providers with whom he had engaged in the years since his discharge from the Hospital Order, letters from medical professionals as well as certificates relating to courses which he had successfully completed.
26. A letter from the appellant’s Forensic Psychiatric Nurse dated 14 April 2025 directly addressed the appellant’s substance usage, which is known to mental health services because the appellant provides urine samples for random drug screenings. That letter states that the appellant has been referred for specialist additional help with addressing substance use, that the appellant has voluntarily engaged with this referral and that there ‘have been no incidents of any violence or aggression for many years.’ Lastly, the letter states that the appellant’s established diagnosis of schizoaffective disorder is managed by depot injections, that there will be no changes to that regime as it is ‘keeping him stable and symptom free.’ Indeed, the judge demonstrated that he considered this evidence about the appellant’s mental health at [28], noting that at the time of the hearing, the appellant was receiving ‘suitable and effective treatment for his mental health.’ At [31] the judge also finds that there is no reason why that mental health treatment will not continue.
27. It is plain from the judge’s findings that the appellant’s substance use was taken by the judge as adverse conduct which was relevant to the assessment of whether he posed a genuine, present and sufficiently serious threat. It is difficult to know what more the judge could have done in the absence of any evidence pointing to a serious threat.
28. The grounds are wrong to state that the judge’s assessment was confined to the appellant’s criminal offending. The judge not only directed himself appropriately in relation to Regulation 27 (5)(c) but applied it as can be seen from paragraphs [29-32]. That the judge had the Regulations in mind, is amplified by his reference at [31] to the mention in the Regulations that any threat need not be imminent.
29. In circumstances where the index offence occurred 17 years ago and occurred owing to the appellant’s untreated mental health condition, the judge rightly placed more focus on the appellant’s conduct in the years between his conditional discharge and the date of the hearing. The respondent is wrong to argue otherwise.
30. For the foregoing reasons, the First-tier Tribunal made no material error of law and the decision stands.

Notice of Decision
The making of the decision of the First-tier Tribunal did not involve the making of an error on a point of law.
The decision of the First-tier Tribunal shall stand.
T Kamara

Judge of the Upper Tribunal
Immigration and Asylum Chamber

16 June 2026

NOTIFICATION OF APPEAL RIGHTS

1. A person seeking permission to appeal against this decision must make a written application to the Upper Tribunal. Any such application must be received by the Upper Tribunal within the appropriate period after this decision was sent to the person making the application. The appropriate period varies, as follows, according to the location of the individual and the way in which the Upper Tribunal’s decision was sent:

2. Where the person who appealed to the First-tier Tribunal is in the United Kingdom at the time that the application for permission to appeal is made, and is not in detention under the Immigration Acts, the appropriate period is 12 working days (10 working days, if the notice of decision is sent electronically).

3. Where the person making the application is in detention under the Immigration Acts, the appropriate period is 7 working days (5 working days, if the notice of decision is sent electronically).

4. Where the person who appealed to the First-tier Tribunal is outside the United Kingdom at the time that the application for permission to appeal is made, the appropriate period is 38 days (10 working days, if the notice of decision is sent electronically).

5. A “working day” means any day except a Saturday or a Sunday, Christmas Day, Good Friday or a bank holiday.

6. The date when the decision is “sent’ is that appearing on the covering letter or covering email