Tribunal decisions

The decision

IN THE UPPER TRIBUNAL
IMMIGRATION AND ASYLUM CHAMBER Case No: UI-2026-000135
First-tier Tribunal No: EU/54944/2023
LE/02907/2024

THE IMMIGRATION ACTS

Decision & Reasons Issued:

On 29th of April 2026

Before

UPPER TRIBUNAL JUDGE FRANCES

Between

ROBERT CONSTANTIN COLAN
(NO ANONYMITY ORDER MADE)
Appellant
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: Mr R Halim, instructed by Forest & Co Solicitors
For the Respondent: Mrs A Nolan, Senior Home Office Presenting Officer

Heard at Field House on 21 April 2026

DECISION AND REASONS

1. The appellant is a citizen of Romania born on 8 May 1979. He appeals against the decision of First-tier Tribunal Judge Russell dated 7 October 2025 dismissing his appeal against the respondent’s decision to cancel leave to remain under paragraph A3.2 of Annex 3 of Appendix EU of the Immigration Rules.

2. On 24 September 2020, the appellant was granted limited leave to remain under the EU Settlement Scheme (EUSS). On 31 July 2023, the respondent cancelled the appellant’s leave having discovered that he had been convicted on 5 April 2012 of sexual activity with a child under 16 in Romania and sentenced to 8 years’ imprisonment. The appellant did not declare his conviction in his application for limited leave to remain under the EUSS.

Respondent’s decision

3. The respondent cancelled the applicant’s leave to remain on the basis it was justified on grounds of public policy, public security and public health in accordance with Regulation 27 of the Immigration (EEA) Regulations 2016 (the Regulations) under A3.2 of Appendix EU. This was because the appellant had been convicted of a very serious sexual offence against a child and sentenced to 8 years’ imprisonment. The respondent was satisfied the appellant’s conduct represents a sufficiently serious threat to the fundamental interests of UK society in accordance with Schedule 1 of the Regulations. The respondent considered the appellant’s personal circumstances in accordance with Regulation 27 and stated:
“You stated that you have been living in the UK since 2017 and you were granted limited leave to remain in the UK in September 2020. You have not been documented by the Home Office as a person who is a permanent resident of the UK.”

4. The respondent did not consider the appellant had been rehabilitated because he was not truthful in his EUSS application, he did not accept responsibility for his actions, he sought to minimise the impact of his conduct and he blamed others. The respondent stated that, had the Home Office known about the risk the appellant’s conduct presents to UK society, his pre-settled status in the UK would not have been granted.

Relevant Immigration Rule

5. Paragraph A3.2 of Annex 3 of Appendix EU states:
“A person’s indefinite leave to enter or remain or limited leave to enter or remain granted under this Appendix may be cancelled on or before their arrival in the UK where the Secretary of State or an Immigration Officer is satisfied that it is proportionate to cancel that leave where:
(a) Because of the person’s conduct committed before the specified date, the cancellation is justified on grounds of public policy, public security or public health in accordance with regulation 27 of the Immigration (European Economic Area) Regulations 2016, irrespective of whether the EEA Regulations apply to that person (except that in regulation 27 for “a right of permanent residence under regulation 15” read “indefinite leave to enter or remain under, or who would be granted indefinite leave to enter or remain if they made a valid application under, Appendix EU to the Immigration Rules”; and for “an EEA decision” read “a decision under paragraph A3.2.(a) of Annex 3 to Appendix EU to the Immigration Rules”); or
(b) The cancellation is justified on grounds that, in relation to the relevant application under this Appendix, and whether or not to the applicant’s knowledge, false or misleading information, representations or documents were submitted (including false or misleading information submitted to any person to obtain a document used in support of the application); and the information, representation or documentation was material to the decision to grant the applicant leave to enter or remain under this Appendix.”

Appeal to FTT

6. The appellant appealed on the grounds that the respondent’s application of A3.2 of Annex 3 of Appendix EU read with Regulation 27 and Schedule 1 of the Regulations was unlawful. The appellant submitted “the respondent failed to carry out a Regulation 27 complaint assessment of the consequences of cancelling” the appellant’s leave to remain. The appellant stated the respondent unlawfully concentrated on the conviction rather than the appellant’s conduct and lack of offending for over 11 years contrary to Regulation 27(5)(e) and the respondent’s guidance. In addition, the respondent failed to take into account the appellant’s complex family life in the UK when assessing proportionality. Accordingly, the respondent’s decision “breaches Appendix EU read with Regulation 27” of the Regulations.

7. First-tier Tribunal Judge Russell (the judge) stated that the sole issue for determination was whether the respondent correctly applied paragraph A3.2 of Appendix EU. He found the appeal turned on two questions derived from subparagraph 5(a) and 5(c) of Regulation 27:
“(i) Does the appellant’s conduct represent a genuine, present and sufficiently serious threat to one of the fundamental interests of society?
(ii) If so, is it proportionate to cancel his leave to remain?”

8. It was the appellant’s case before the First-tier Tribunal (FTT) that he did not represent a threat because he is rehabilitated and there was no evidence he had reoffended in Romania or the UK since his release in February 2017. The appellant relied on an expert report by Lisa Davies.

9. The judge attached little weight to the conclusion in the expert report because it was based on the appellant’s self-reporting. The judge found that the report contained evidence that the appellant was not being honest about his conviction and had still not accepted full responsibility. The judge found that the appellant continued to minimise his misconduct in oral evidence which was inconsistent with the evidence given by his partner and the appellant’s credibility was further undermined by his explanation for why he did not declare his conviction. The judge stated:
“26. I am satisfied to the requisite standard that the Appellant deliberately left the conviction off his application because he knew it would be inimical to its success.
27. I find that the Appellant’s dishonesty about both the circumstances of the conviction itself, and his failure to declare it on his EUSS application, mean that I cannot be confident in his assertion that he no longer represents a threat.
…
29. In light of the above, I find that the Appellant does represent a “genuine, present and sufficiently serious threat” to potentially justify cancellation of his leave.”

10. The judge then went on to consider proportionality taking into account the considerations in Regulation 27(6) and concluded that the respondent was not acting disproportionately in cancelling leave to remain.

Appeal to UT

11. The appellant appealed on the ground that the judge had applied the wrong threshold test. The appellant had acquired permanent residence having lived and worked in the UK for a continuous period of 5 years. Further, even if he did not hold permanent residence, he was prima facie eligible for settled status having been continuously resident in the UK for 5 years irrespective of whether he was working or exercising Treaty rights at that time: Abdullah (EEA; deportation appeals; procedure) [2024] UKUT 00066. Therefore, the appellant had resided in the UK for more than 5 years, as at the date of decision and the date of hearing, and the relevant threshold test was serious grounds of public policy and public security (my emphasis). The judge failed to apply the “serious grounds” test.

12. The appellant also challenged the judge’s findings on the expert report of Lisa Davies. Upper Tribunal Judge Bulpitt refused permission on this ground. Judge Bulpitt granted permission on the ground it was arguable that the judge was required by A3.1A(b) (sic) of Appendix EU to apply the enhanced test of “serious grounds” of public policy and public security.

Submissions

13. Mr Halim relied on his skeleton argument dated 14 April 2026 and submitted the appellant had 5 years’ continuous residence and was entitled to enhanced protection. The appellant would have been granted indefinite leave to remain (ILR) under EU11 if he had made a valid application because he was a relevant EEA citizen with 5 years’ continuous residence. Mr Halim referred me to EU15 (suitability) and the definition of a deportation order in Annex 1 of Appendix EU and submitted that the appellant satisfies EU11(3) and therefore the “serious grounds” test applies notwithstanding the appellant’s conviction. The respondent could only refuse an application under EU15 if the “serious grounds” test was met because the applicant prima facie qualified for ILR under EU11.

14. Mr Halim submitted that paragraph A3.2(a) should be interpreted as meaning that the appellant qualified for ILR under EU11 and therefore he was entitled to enhanced protection. This analysis was consistent with Article 20(1) of the Withdrawal Agreement and Articles 16, 21 and 28(2) of the Citizen’s Directive 2004/38/EC. Those provisions had direct effect under section 7A of the European Union (Withdrawal) Act 2018. He submitted the same threshold applied to A3.2(b) because the respondent had to consider whether the appellant had permanent residence in concluding that cancellation of leave was justified on grounds of public policy and public security.

15. Mrs Nolan relied on her skeleton argument dated 15 April 2026 and submitted the respondent’s decision of 31 July 2023 cancelling leave stated the appellant would not be granted ILR because he would not have been granted pre-settled status had the respondent known of his conviction. It was apparent from the decision that the respondent did not accept the appellant had 5 years’ continuous residence or permanent residence. He only had leave to remain from September 2020. The wording in paragraph A3.2(a) was important. It stated “who would be granted” not who would qualify or who would have a prima facie case.

16. Mrs Nolan submitted that Regulation 27(3) did not apply because the appellant did not have permanent residence and he was not a person who would be granted ILR under Appendix EU if he made an application. The definition of deportation order in Annex 1 was not relevant. The appellant did not rely on Regulation 27(3) in the notice of appeal to the FTT and no argument was made before the judge that Regulation 27(3) applied. There was no error of law because the judge applied the relevant sections of Regulation 27 which he set out at [6] of his decision. Mrs Nolan submitted the “serious grounds” test did not apply to A3.2(b). The judge’s findings at [26] were sufficient to support such a finding and there was no material error of law in the decision.

17. Mr Halim submitted the respondent had failed to provide an authority to support the submission that the appellant’s conviction prevented him from acquiring permanent residence. The judge did not find the appellant lied and therefore that was the end of the matter. The judge considered risk at [27] but applied the wrong threshold test. A3.2(b) was not a “stand alone” provision and the appellant’s conviction was not relevant to the grant of ILR under EU11.

Conclusions and reasons

18. This case concerns the cancellation of limited leave to enter/remain. It is not a deportation case and reference to EU15 or the definition of a deportation order in Annex 1 of Appendix EU does not assist the appellant. The applicable Immigration Rule is paragraph A3.2 of Annex 3 of Appendix EU.

19. It is apparent from the respondent’s decision of 31 July 2023 that she did not accept the appellant had acquired permanent residence or that he would be granted indefinite leave to remain if he made a valid application.

20. It is also apparent from the grounds of appeal to the FTT that the appellant’s case was not advanced on the basis that the appellant had 5 years’ continuous residence and the evidence in the bundle before the FTT is insufficient to support that contention. The appellant was represented, but there was no skeleton argument before the FTT. There was no evidence before me to show that the appellant’s representative before the FTT made the argument that the appellant had 5 years’ continuous residence and submitted the appellant was entitled to enhanced protection.

21. The judge did not find that the appellant had 5 years’ continuous residence and it was not a “Robinson” obvious point on the evidence before him. The judge set out the issues at [14]. These were consistent with the grounds of appeal to the FTT which relied on Regulation 27(5). It is apparent that the judge and the parties conducted the appeal on the basis the appellant had not established he had 5 years’ continuous residence.

22. In any event, I am not persuaded by Mr Halim’s submissions on the interpretation of paragraph A3.2. The rule states “who would be granted indefinite leave to enter or remain if they made an application.” It does not make any reference to EU11 and does not say “who meets the requirements of EU11, EU11A or EU12”. Paragraph A3.2(a) addresses the actual grant of ILR not whether a person meets the eligibility requirements under specified paragraphs of Appendix EU. Annex 3 is phrased in entirely different terms.

23. The appellant’s conviction is relevant to the grant of ILR. It is clear from the respondent’s decision of 31 July 2023 that she would not have granted limited leave to remain had she known of the appellant’s conviction. On a proper application of A3.2(a) the appellant would not have been granted ILR had he made a valid application. The higher threshold test of “serious grounds” did not apply. In any event, the judge’s findings were sufficient to establish that the higher threshold test was met.

24. I am of the view that, in paragraph A3.2(a) of Annex 3 of Appendix EU, the phrase “who would be granted indefinite leave to enter or remain if they made a valid application under Appendix EU” should be given its ordinary meaning. That is, had they made a valid application, it would have been successful on the facts of their case. Further, paragraph A3.2(b) is expressed in the alternative and in clear terms.

25. I am not persuaded the public policy considerations in A3.2(a) also apply to A3.2(b). The judge found that the appellant had deliberately failed to disclose his conviction in his EUSS application. The cancellation of the appellant’s leave was justified on the grounds the appellant submitted false information which was material to the decision to grant limited leave to remain in September 2020. On the facts found by the judge, there was no material misapplication of paragraph A3.2 of Annex 3 of Appendix EU.

26. The judge considered the correct threshold test and properly applied Regulation 27. The judge’s finding that the respondent had not acted disproportionately was open to him on the evidence before him. There was no material error of law in the decision of 7 October 2025. The appellant’s appeal is dismissed.

Notice of Decision

Appeal dismissed

J Frances

Judge of the Upper Tribunal
Immigration and Asylum Chamber

27 April 2026