Tribunal decisions

The decision

IN THE UPPER TRIBUNAL
IMMIGRATION AND ASYLUM CHAMBER Case No: UI-2026-000113
First-tier Tribunal No: EA/00760/2025

THE IMMIGRATION ACTS

Decision & Reasons Issued:

On 19th of October 2026

Before

UPPER TRIBUNAL JUDGE BLUNDELL

Between

OLIVER CAMERON NDAKPRI YAO
(NO ANONYMITY ORDER MADE)
Appellant
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: No attendance or representation
For the Respondent: Ms Keerthy, Senior Presenting Officer

Heard at Royal Courts of Justice on 12 October 2026

DECISION AND REASONS

1. On 13 August 2026, the Upper Tribunal issued my first written decision in this case. A copy of that decision is appended to this one and should be read alongside it. I found, in summary, that the First-tier Tribunal had erred in law in finding that the respondent’s decision to deport Mr Yao from the United Kingdom was not made in accordance with section 3(5) of the Immigration Act 1971. I set aside the FtT’s decision for that reason.

2. Having reached that conclusion, I decided that the fairest course was to list the case for a remaking hearing before the Upper Tribunal. I did so despite my express reservations that there was really anything which the appellant could say in order to persuade me to allow this appeal, brought as it is on the very limited grounds of appeal which I set out at [22] of my first decision.
3. I have been conscious throughout these proceedings of the fact that Mr Yao is a serving prisoner who is unrepresented. I adjourned the first hearing at the Royal Courts of Justice so that the papers could be provided to him by the respondent, who had unwittingly served the bundle to his personal email address. At the second hearing, I endeavoured to ensure that Mr Yao (who speaks English as his first language) understood what was said by Ms Keerthy, and that he had a full opportunity to respond to her submissions. As I have already recorded, I adjourned again after that hearing, and I noted in my first decision that Mr Yao would have time to secure legal representation if that was his wish.

4. There was a gap of two months between my first decision being issued and the latest hearing taking place. No legal representatives came on the record. The notice of hearing was sent, by post, to Mr Yao at HMP Thameside on 25 September. Arrangements were made with the prison for Mr Yao to be conveyed to the Royal Courts of Justice and the court confirmed that a secure court and detention space had been arranged. On the morning of the hearing, however, the Upper Tribunal was informed by the prison that the appellant had refused to attend the hearing.

5. I was satisfied that the appellant had been given proper notice of the hearing for the reasons above. I was satisfied that there was no good reason for his non-attendance. And I was satisfied that it was in the interests of justice to proceed with the appeal. Mr Yao has been given every opportunity to participate in the appeal and has chosen not to do so. There is obviously a public interest in the conclusion of these proceedings and there is no reason to delay resolution yet further.

6. I heard a short submission from Ms Keerthy, who essentially made the same points she had made in support of the appeal against the decision of the First-tier Tribunal. I indicated at the end of her submissions that the appeal would be dismissed for reasons which would be provided in writing. The reasons are as follows.

7. The appellant has appealed against only the “Stage 1” decision in this case. He did not respond to the Secretary of State’s invitation to make any additional submissions setting out the basis on which he might wish to remain in the United Kingdom. His previous representatives sought to widen the scope of the appeal when it was before the First-tier Tribunal, but the respondent refused consent for him to raise any new matters and the appeal remains as confined in scope now as it was then. The appellant has open to him only the two grounds of appeal in the CRA Regulations.

8. As I explained in my first decision, it is not easy to see in light of Molnar & Vargova v SSHD [2026] EWCA Civ 31; [2026] 1 WLR 3997 how the appellant could raise any arguments in relation to the Withdrawal Agreement. When he was represented by counsel before the FtT, no such arguments were raised and there has been no attempt to raise any new arguments in that respect. I note that permission to appeal to the Supreme Court has been given in Molnar & Vargova, and that the appeal is to be heard at the start of the Hilary Term. As the law stands, however, it is simply not possible to discern how any worthwhile argument could be made in an appeal of this nature in reliance on the Withdrawal Agreement.

9. The appellant obviously succeeded before the FtT on the second available ground of appeal, which is that the decision was not made in accordance with s3(5) of the Immigration Act 1971. I explained in my first decision why that conclusion was wrong in law. In order to put the appellant’s position beyond any doubt, it is only necessary to recall that he received a sentence of more than 12 months’ imprisonment for offences which were completed after Implementation Period Completion Day. By operation of primary legislation, therefore, he is a foreign criminal as defined and his deportation is automatically considered to be conducive to the public good. Elisabeth Laing LJ explained this at [92] of her judgment in Molnar & Vargova:

The effect of section 32(4) of the 2007 Act is that, as a matter of law, if a person is a foreign criminal, his or her deportation is conducive to the public good for the purposes of section 3(5)(a) of the 1971 Act, without any intervening decision by the Secretary of State to that effect.

10. It was not therefore incumbent on the Secretary of State to undertake any additional consideration in order to demonstrate why Mr Yao’s deportation was conducive to the public good; that conclusion was pre-determined by statute as a result of the date and the seriousness of his offending.

11. It follows that the appellant is not able to succeed in this appeal on either of the limited grounds of appeal which are available to him, and that the appeal must be dismissed.

12. I should note that I posed a question to Ms Keerthy at the end of her submissions. I asked what would happen now, given that the appellant has never had an opportunity to ventilate before an independent judge any further reasons he might have for seeking to remain in the United Kingdom. It is to be recalled, after all, that he is a French national who is currently 23 years old, and who has lived in this country since he was a few months old.

13. Ms Keerthy’s response was essentially that the time has passed for Mr Yao to raise any such matters; he was invited to raise any such points by a s120 statement and he failed to do so. As a matter of law, Ms Keerthy is obviously entirely correct, but I cannot leave the case without expressing some disquiet about the prospect of the appellant being deported without there having been any real consideration of any claim he might have to remain in the UK as a result of having lived here for essentially his entire life. That is not a matter which can properly affect the outcome of this appeal, however.

Notice of Decision

The decision of the First-tier Tribunal having been set aside, I remake the decision on the appeal by dismissing it.

Mark Blundell

Judge of the Upper Tribunal
Immigration and Asylum Chamber

16 October 2026

IN THE UPPER TRIBUNAL
IMMIGRATION AND ASYLUM CHAMBER Case No: UI-2026-000113
First-tier Tribunal No: EA/00760/2025

THE IMMIGRATION ACTS

Decision & Reasons Issued:

…………………………………

Before

UPPER TRIBUNAL JUDGE BLUNDELL

Between

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Appellant
and

OLIVER CAMERON NDAKPRI YAO
Respondent

Representation:
For the Appellant: Ms S Keerthy, Senior Presenting Officer
For the Respondent: In person (by video link)

Heard at Field House on 10 August 2026

DECISION AND REASONS

Procedure

1. I was due to hear this case in person at the Royal Courts of Justice at 10am this morning. Mr Yao is currently serving a custodial sentence at HMP Thameside. A production order had been sent well in advance of the hearing, and it had been acknowledged by the prison. This morning, however, I was informed that Mr Yao had not been produced because he preferred to appear by video link. I ordered that the case should be transferred from the Royal Courts of Justice to Field House and that a video link should be arranged. I then conducted the hearing in the afternoon, in court 10 at Field House. Mr Yao appeared by CVP link. Mr Keerthy appeared in person. Both were content for me to proceed in that way.

2. I should also note that I was required to adjourn a previous hearing in this matter on 15 June 2026. Mr Yao was brought from custody on that occasion but had not received the papers on which the Secretary of State relied. It transpired that this was because the Home Office had served the bundle for the hearing to his personal email address, whereas he has no access to that email address whilst detained within the prison estate. I considered on that occasion that the fair and proper course was to adjourn the hearing so that Mr Yao could familiarise himself with the Secretary of State’s arguments and could take legal advice if he wished to do so. Mr Keerthy confirmed in writing in advance of today’s hearing that she had provided paper copies of the bundle and her skeleton argument to Mr Yao by post to HMP Thameside. She did so the day after the previous hearing.

3. Mr Yao suggested during the hearing that he had not been made aware of this hearing; that he had been “dragged” out of his cell in order to attend the hearing by CVP; and that he had made contact with his former solicitors after the last hearing but that his solicitor “Anthony” was out of the country and Anthony’s Personal Assistant was also away. I regret to say that I did not accept any of that.

4. The notice of hearing was sent to Mr Yao by post to HMP Thameside on 25 June 2026. The notice of hearing gave his correct name and his prisoner number. I have no reason to believe that the notice would not have been provided to him. Nor do I have any reason to believe that Mr Yao would not have been informed in advance that he was to be brought to the Royal Courts of Justice in connection with his ongoing immigration proceedings. As I have already recorded, there was a previous hearing and Ms Keerthy served the Home Office bundle and her skeleton argument on Mr Yao by post, immediately after hearing.

5. I impressed on Mr Yao at the hearing in June that he was able to be legally represented if he wished, and that he could approach his former solicitors or any other firm. He has had nearly two months in which to do so. There has been no contact from his former solicitors and I did not accept that he had made any real effort to secure legal representation. I did not consider it to be in the interests of justice to adjourn the hearing again. Recalling what was said in SH (Afghanistan) v SSHD [2011] EWCA Civ 1284, I considered that it was fair in all the circumstances to proceed with the hearing and I did so.

Introduction

6. The Secretary of State for the Home Department appeals with the permission of Judge Canavan against the decision of First-tier Tribunal Judge Robinson. By her decision of 26 September 2025, the judge allowed Mr Yao’s appeal against the Secretary of State’s decision to make a Stage 1 deportation decision against him. The Stage 1 deportation decision was made on 8 April 2025. The Secretary of State went on to make a Stage 2 deportation decision on 1 May 2025. Mr Yao did not appeal against the latter decision, so the appeal before the judge concerned only the former.

7. Mr Yao is a French national who was born on 21 April 2003. He states that he came to the United Kingdom as a baby and has lived here ever since. Mr Yao has committed a number of offences in the UK. Between March 2019 and October 2019, he received convictions relating to thirteen offences, including offences of violence and dishonesty.

8. On 27 April 2021, Mr Yao was granted Indefinite Leave to Remain under the EU Settlement Scheme. I infer, therefore, that none of the offences he had committed to that point were considered serious enough to warrant the refusal of that status.

9. Mr Yao continued to commit offences, however, and on 26 September 2024, he received a total of four years’ imprisonment for offences committed on 24 April 2023 and 20 February 2024. The first of those offences – the possession of drugs of Class A (heroin and crack cocaine) with intent to supply – had originally attracted suspended sentence of 24 months. The conviction for the second set of offences – dangerous driving, possession of a bladed article and failure to comply with the suspended sentence – caused that sentence to be activated and the imposition of an additional sentence of 24 months’ imprisonment.

10. The Stage 1 deportation decision which was made by the respondent in reliance on those convictions stated materially as follows:

You fall within the definition of "foreign criminal" in section 32(1) because you are not a British or Irish citizen, and you were convicted in the UK of an offence for which you received a sentence of at least 12 months' imprisonment. Under section 32(5) of the UK Borders Act 2007, the Secretary of State must make a deportation order in respect of a foreign criminal, unless one or more of the exceptions set out in section 33 of the same Act applies. You have not shown that any of the exceptions apply to you.

The deportation of a foreign criminal is conducive to the public good. The public interest in your deportation is further strengthened because of your previous convictions.

The Appeal to the First-tier Tribunal

11. The appeal came before the First-tier Tribunal Judge on 9 September 2025. Before the judge, Mr Yao was represented by Mr Hingora of counsel. The Secretary of State was represented by a Presenting Officer, Mr White.

12. Mr Hingora provided the judge with a skeleton argument in which he made reference to the respondent’s guidance on Conducive Deportation. The version to which he referred in that skeleton argument was dated 27 December 2024. The judge noted that the guidance had been updated on 22 May 2025 and it was to the later version of the guidance that she directed herself. The full title of the guidance is Deportation on conducive grounds, Immigration Act 1971 and UK Borders Act 2007, version 5.0, published on 22 May 2025. I shall refer to that document as “the Guidance”.

13. At [18] of her decision, the judge set out the following extract from the Guidance:

It will normally be appropriate to consider deportation on the ground it is conducive to the public good under the 1971 Act (or regulation 27A of the EEA Regulations, as saved, where it concerns a person protected by the Grace Period Regulations 2020 with conduct committed after 11 pm on 31 December 2020) in the following types of cases (this is not an exhaustive list):
• where the person's offending has caused serious harm in the UK or in another
country
• where the person is a persistent offender
• where the person has been assessed by the police as a high harm offender and is
a threat to the public
• where the person has a conviction for a serious drug offence or for a gun crime
[…]

This is not an exhaustive list and deportation may be pursued in any case where the Secretary of State considers that the individual's presence in the UK is not conducive to the public good. […]

Consideration

When deciding whether it is proportionate to pursue deportation on the ground it is conducive to the public good you must consider each case on its individual merits taking account of:
• the nature of the offending, the length of any sentence or sentences given and
Judge's sentencing remarks
• when the offending occurred
• the impact of the offending on the victim
• any assessment made by the police about the threat posed to the public
• any risk assessment made by HM Prison and Probation Services
• any factors which are capable of outweighing deportation such as length of the
person's residence in the UK, their ties to the UK and the UK's obligations under the ECHR, Refugee Convention or other international treaties or conventions, such as the European Convention on Action against Trafficking in Human Beings.

14. At [19], the judge recorded Mr Hingora’s argument, which was that the Secretary of State’s decision was unlawful for three reasons. Firstly, because she had failed to consider relevant matters particularised in the guidance. Secondly, because she had reached an irrational conclusion. Thirdly, because she had not afforded Mr Yao an opportunity to make representations before she reached the Stage 1 decision.

15. At [20]-[22], the judge explained why she accepted the first of those arguments. At [21], she noted that the Secretary of State had not considered any of the matters under the sub-heading “Consideration” in the guidance, and that it appeared from the decision that “the only factors taken into account in making the decision were the Appellant’s convictions and his indefinite leave to remain under the EUSS”. At [22], the judge continued as follows:

In particular, and with regard to the Conducive Deportation guidance, there is no evidence in the Stage 1 decision that the Respondent has specifically considered, when deciding the proportionality of the decision, the Judge's sentencing remarks of 26 September 2024 in respect of the Appellant's convictions on the same date, when the offending occurred, the impact of the offending on the victim, any assessment made by the police about the threat posed to the public, or any risk assessment or other factors capable of outweighing deportation. Nor is any of this information in the Respondent's bundle and no OASys has been provided. There is also, on the documents before me, no substantive consideration of how the Appellant's circumstances including holding the status of a person with indefinite leave to remain under the EUSS who has lived in the UK since he was 3 months, some 22 years, with family in the UK and history of being taken into care at age 8 as asserted (and not disputed), might be capable of outweighing deportation. This being the case and looking at all these matters as a whole it appears that the decision maker has disregarded matters which he should have taken into consideration.

16. At [23], the judge concluded that the decision was not “taken lawfully in accordance with section 3(5) of the 1971 Act” and allowed the appeal on that basis. At [24], the judge added for completeness that she was not persuaded by the argument that the decision was procedurally unfair. She reached that conclusion because Mr Yao had been notified that he had a right of appeal, which he had duly exercised.

The Appeal to the Upper Tribunal

17. The Secretary of State sought permission to appeal from the FtT but that was refused by the judge. The application was renewed before Upper Tribunal Judge Canavan. It was submitted in the Secretary of State’s grounds of appeal that the judge had misdirected herself in law because Mr Yao was a foreign criminal to whom the automatic deportation regime in the UK Borders Act 2007 applied, and it was not incumbent on the Secretary of State to consider whether his deportation was conducive to the public good.

18. Judge Canavan granted permission to appeal. She noted that the Secretary of State’s grounds were not clearly particularised but she adjudged the point raised to be arguable and she considered that it might be useful for the Upper Tribunal to have regard to the decision of the Court of Appeal in Molnar & Vargova v SSHD [2026] EWCA Civ 31.

19. Ms Keerthy relied on her skeleton argument and submitted that the judge had misunderstood the applicable legal regime. The judge had made reference to the Upper Tribunal’s decision in Vargova [2024] UKUT 00336 (IAC) and had seemingly understood that the appeal was limited to the grounds set out in regulation 8 of the Immigration (Citizens Rights Appeals)(EU Exit) Regulations 2020 (“the CRA Regulations”). But, Ms Keerthy submitted, the judge had erred in concluding that the Secretary of State had failed to take material matters into account. Mr Yao was liable for deportation under s3 of the Immigration Act 1971 because his sentence was more than 12 months; that was the effect of s32 of the UK Borders At 2007. It was as a result of that sentence that Mr Yao was a “foreign criminal” as defined, and the judge was wrong to think that the Secretary of State needed to turn her mind to any of the matters set out in the policy document on which had Mr Hingora relied.

20. Mr Yao addressed me briefly. He did not consider Mr Keerthy to have made any “airtight” submissions and a lot of things had not seemed accurate to him. He did not really see the point of it all. He had been raised by the government of the United Kingdom and he did not understand why the government now sought to deport him. His mother was registered blind and he had been in the UK since he has a baby. He accepted that his behaviour had been wrong in the past but no one had told him that he should go and get a British passport. He did not understand the difference between ILR and British citizenship. He did not know anything about France and had only been there three or four times. The Home Office was trying to ruin his life.

21. I indicated that I did not need to hear from Ms Keerthy in response and that I was satisfied that the judge had erred in law in the manner contended by the Secretary of State. I indicated that I would set aside the decision of the judge and that I would order that the matter be retained in the Upper Tribunal for remaking. I explained to Mr Yao that there would be a further opportunity for him to secure legal representation. He asked me whether the case was “back at square one”. I said that that was nearly accurate; the decision of the first judge had been set aside and the case would be considered afresh but that the rehearing would take place in the Upper Tribunal. I assured Mr Yao that he would receive the reasons for my decision in writing.

Analysis

22. As I have already recorded, the appeal brought to the First-tier Tribunal was only against the Stage 1 deportation decision. Mr Yao’s solicitors had apparently sought to widen the scope of the appeal hearing but the Secretary of State had not given consent to that course. The grounds of appeal upon which Mr Yao could therefore rely were only those set out in regulation 8 of the CRA Regulations, as set out at [8] of Ms Keerthy’s skeleton argument:

That the Stage 1 decision was in breach of a person’s rights under the Withdrawal Agreement; or

That the Stage 1 decision was not made in accordance with section 3(5) or 3(6) of the Immigration Act 1971.

23. Mr Hingora evidently realised in light of the Upper Tribunal’s decision in Vargova that there was nothing he could usefully say in relation to the first of those grounds of appeal. He therefore sought to make the only submission available to him, which was that there was some form of public law error in the Stage 1 decision. The submission which the judge accepted was that the Secretary of State had left material matters out of account in deciding that Mr Yao was liable to deportation under section 3(5) of the Immigration Act 1971. The difficulty with the submission which was made, and with the judge’s acceptance of it, is that it was straightforwardly wrong as a matter of law. The judge’s error is clear, with respect, when one considers the paragraph of the policy which immediately precedes the excerpt she set out in her decision:

Where a person referred for deportation consideration does not meet the criteria for deportation under the 2007 Act, consideration must be given to whether the deportation should be pursued under the 1971 Act on the ground it is not conducive the public good.

24. The statutory reference in that excerpt is to the UK Borders Act 2007. That Act introduced the concept of “automatic deportation”. Pursuant to section 32(4) of that Act, the deportation of a “foreign criminal” is conducive to the public good for the purposes of s3(5)(a) of the Immigration Act 1971. By section 32(1) and (2) of the same Act, a “foreign criminal” includes a person (like Mr Yao) who is not a British citizen and who is convicted of an offence for which they are sentenced to a period of imprisonment of at least 12 months. In respect of such a person, there can be no doubt that they are liable for deportation under section 3(5) of the Immigration Act 1971, since that is the effect of the interlocking statutory provisions.

25. Mr Hingora was wrong to submit that the Secretary of State was required to assess whether Mr Yao’s deportation was conducive to the public good. As the policy makes clear, that exercise is only necessary where the individual does not meet the criteria for “automatic” deportation under the 2007 Act. Cases such as SC (Zimbabwe) v SSHD [2018] EWCA Civ 929; [2018] 1 WLR 4474 have considered the regime applicable to such persons and have explored the concepts of serious harm and persistent offending. Those concepts have no part to play where, as in the case of Mr Yao, the offending resulted in a sentence of more than twelve months’ imprisonment. The length of the sentence meant that he was a foreign criminal, as defined, and he was therefore liable to deportation as a matter of law: Molnar & Vargova v SSHD, CA, at [97].

26. The fact that Mr Yao is a French national with status under the EUSS was of no consequence in this context. The relevant conduct on which the Secretary of State relied in concluding that he was liable to deportation was the conduct which I have summarised at [9] above, all of which occurred after Implementation Period Completion Day, and the Secretary of State was entitled in those circumstances to consider his liability to deportation under national law. So much is clear from Vargova & Molnar v SSHD, CA, and was set out with clarity in the Secretary of State’s Stage 1 decision.

27. It follows that the judge was wrongfooted by the submissions made by Mr Hingora. The Guidance to which he referred was completely irrelevant in the context of this appeal. Unfortunately, it seems that the judge was not greatly assisted by the Secretary of State’s Presenting Officer, who is recorded to have described the Stage 1 decision as “not a model example”. It would undoubtedly have assisted the judge if the Presenting Officer had said, in reliance on conduct which took place after IP Completion Day, that the applicant was a foreign criminal who was subject to automatic deportation, and that the section of the Guidance to which Mr Hingora referred was irrelevant. But the absence of that submission cannot alter the position in law. As I said at the hearing, it is clear that the judge misunderstood the law, and that her decision must be set aside as a result.

28. I am grateful to Ms Keerthy for her pragmatism about the disposal of this appeal. She submitted that there was no reason for the appeal to be remitted to the FtT and that it should be retained in the UT. Given the scope of the issues to be considered, that is necessarily correct. Ms Keerthy also indicated, however, that the Secretary of State was content for the decision to be remade immediately or on a subsequent date. Whilst I struggle, frankly, to see what could be said by Mr Yao to contest the appeal on either of the grounds available to him under regulation 8 of the CRA Regulations, I do consider it to be appropriate to give him a further opportunity to consider his position and, if he wishes, to seek legal advice on the next steps which might be taken. I therefore indicated at the hearing that the decision on the appeal will be remade after a further hearing in the Upper Tribunal, which will not be heard for a further 28 days. Mr Yao may therefore consider that he should seek legal advice promptly.

Notice of Decision

The decision of the First-tier Tribunal involved the making of an error on a point of law and that decision is hereby set aside. The decision on the appeal will be remade in the Upper Tribunal on a date to be notified.

Mark Blundell

Judge of the Upper Tribunal
Immigration and Asylum Chamber

10 August 2026