Tribunal decisions

The decision

IN THE UPPER TRIBUNAL
IMMIGRATION AND ASYLUM CHAMBER Case Nos: UI-2026-000433
UI-2026-000437
First-tier Tribunal Nos: EA/01819/2024
HU/01618/2024

THE IMMIGRATION ACTS

Decision & Reasons Issued:

14th August 2026

Before

UPPER TRIBUNAL JUDGE KEBEDE

Between

SECRETARY OF STATE FOR THE HOME DEPARTMENT
Appellant
and

AHMEDBUKHARI MOSE MOHAMED
(No Anonymity Order)
Respondent

Representation:
For the Appellant: Mr A Tan, Senior Home Office Presenting Officer
For the Respondent: Mr J Holt, instructed by TMC Solicitors

Heard at Manchester Civil Justice Centre on 28 July 2026

DECISION AND REASONS

The anonymity order made by the First-tier Tribunal is hereby discharged.

1. This is an appeal by the Secretary of State for the Home Department against the decision of the First-tier Tribunal allowing Mr Mohamed’s appeals against the decisions of 20 August 2024. For the purposes of this decision, I shall hereinafter refer to the Secretary of State as the respondent and to Mr Mohamed as the appellant, reflecting their positions as they were in the appeal before the First-tier Tribunal.

2. The appellant is a citizen of Sweden born on 29 April 1995. He first arrived in the UK in 2003 at the age of eight years. He attended school and college in the UK. In May 2018 he committed an offence of aggravated burglary of a dwelling with intent. In 2019 he qualified and worked as a personal trainer. His father passed away in 2019. On 2 August 2021 he made an application for settled status under the EU Settlement Scheme (EUSS). On 24 August 2023 he was convicted of the offence of aggravated burglary and was sentenced to nine years’ imprisonment, with his conditional release date being February 2028 and his license period ending in August 2032.

3. On 29 November 2023 the respondent made a stage 1 deportation decision. The appellant’s representatives made representations on 1 May 2024 in response, pursuant to section 120 of the Nationality, Immigration and Asylum Act 2002, claiming protection by way of regulation 27 of the EEA Regulations 2016 and relying upon the imperative grounds standard, as well as raising Article 8 human rights issues based on his family and private life in the UK. The representations were treated as an Article 8 human rights claim, which was refused by the respondent on 20 August 2024, with a right of appeal under section 82(1) of the NIAA 2002. In a separate decision dated 20 August 2024 the respondent refused the EUSS application with a right of appeal under the Immigration (Citizens’ Rights Appeals) (EU Exit) Regulations 2020.

4. In that latter decision, the respondent concluded that the appellant did not meet the requirements in Appendix EU to the immigration rules and did not qualify under the EU Settlement Scheme, because he was subject to a decision to make a deportation order. The respondent refused his application on the grounds of suitability under rule EU15 of Appendix EU. The respondent also certified the appellant’s case under regulation 16 of the Immigration (Citizens’ Rights Appeals) (EU Exit) Regulations 2020 on the ground that, despite the appeals process not having begun or not having been finally determined, his removal would not be unlawful under section 6 of the Human Rights Act 1998.

5. In the decision refusing the appellant’s human rights claim, the respondent concluded that the EEA Regulations 2016 did not apply to him because there was no evidence that he was lawfully resident in the UK immediately prior to 23.00 on 31 December 2020 or that he had an outstanding application to the EUSS. As for his human rights claim, the respondent considered that the exceptions to deportation did not apply to him because of the length of his sentence, and that there were no very compelling circumstances outweighing the public interest in his deportation, but in any event that the requirements of the private and family life exceptions were not met. The respondent accepted that the appellant had been lawfully resident in the UK for most of his life and that he was socially and culturally integrated in the UK, but also considered that his criminal behaviour was not the behaviour expected of someone who was socially and culturally integrated into the UK. It was not accepted that there would be very significant obstacles to his integration into Sweden. It was not accepted that the appellant’s deportation would result in a breach of his rights under Article 8.

6. The appellant appealed against both decisions. The appeals were linked and came before the First-tier Tribunal on 2 April 2025. The First-tier Tribunal Judge, at [10], noted that it was agreed that the 2016 EEA Regulations applied to the appellant, it was accepted that he had been present in the UK since 2003, that he was a Swedish citizen, and that he had acquired permanent residence in 2008, and it was accepted that as of 2013 he had lived in the UK for ten years, and had been exercising Treaty rights since 2003. At [11] the judge observed that, as the application of the EEA 2016 Regulations was agreed, the central issue in the appeal was whether the imperative standard set out in Regulation 27 was met, and if it was not, it was agreed that the appeal should succeed and that the human rights claim should also succeed. At [13] the judge confirmed that the European regime applied to the appellant, as the criminal offending took place in 2018, and he therefore had the protection from deportation of that regime. The judge noted that the appellant was identified as an EEA national whose residence in the UK was being facilitated before the deadline of 2300 GMT on 31.12.20, that the level of protection was of the Upper Tier, and that the appellant had been resident lawfully in the UK since 2003 and was not imprisoned until 23 August 2023.

7. The judge then went on to consider whether the respondent had established that there were imperative grounds justifying the decision under regulation 27. The judge found that the appellant was integrated culturally and socially. He considered that the OASys report was clear that the appellant had consistently shown remorse for his serious offence and was a very low risk of re-offending and that he had empathy with the victim, was remorseful and had demonstrated a positive and receptive attitude to rehabilitation. He rejected the Home Office Presenting Officer’s reliance upon the offence itself in order to show that the imperative grounds were met, relying upon Regulation 27(5)(e) and found that on that basis the imperative grounds were not shown to be met. He also found that the Home Office Presenting Officer’s reliance upon the appellant’s conduct in relation to that offence itself was an insufficient basis to show that he represented a genuine, present and sufficiently serious threat affecting one of the fundamental interests of society. The judge found, therefore, that the appeal succeeded under the CRA Regulations and that it therefore followed that the human rights appeal also succeeded.

8. Permission to appeal was sought by the Secretary of State who applied for the anonymity order previously issued to be discharged, and applied to withdraw the apparent concessions as to the EEA Regulations 2016 applicability and the level of protection afforded to the appellant. It was asserted that, in so far as the judge appeared to suggest that the Presenting Officer had agreed that the extant appeal was brought under the EEA Regulations 2016 or they otherwise applied in their entirely to the matter under appeal, that was considered to be wrong as a matter of law. It was further asserted that any concession made to the effect that the appeal succeeded without a risk of re-offending, owing to the seriousness of the offence, was wrong for the reasons given in Secretary of State for the Home Department v George [2024] EWCA Civ. 1192, with reference to the Bouchereau exception.

9. Permission was sought on two grounds of challenge. Firstly, that the judge had made a misdirection in law/ given inadequate reasoning in regard to the calculation of the qualifying 10 year period, which should have been 20 August 2024 to 21 August 2014, but which would have also been shortened by the UK leaving the EU on 31 January 2020, and that he had failed to consider if the appellant’s imprisonment had sundered his integrative links with the UK. Secondly, that the judge had made a material mistake of fact in relation to the appellant’s risk of re-offending as set out in the OASys report.

10. Permission was refused in the First-tier Tribunal but was subsequently granted in the Upper Tribunal upon a renewed application. In granting permission, the Upper Tribunal Judge said that the issue of the concessions needed to be clearly addressed in writing prior to the error of law hearing, and it would need to be explained how they were made, what their impact was on the First-tier Tribunal’s decision, and what the effect would be of them being withdrawn. Directions were made in the grant of permission for the filing and service of a rule 24 response and skeleton arguments.

11. The matter then came before me for a hearing and both parties made submissions. There was a rule 24 response from the appellant and a skeleton argument from the respondent before me, although neither had been submitted in accordance with the time-frame set out in the directions. Neither party objected to the other’s document being admitted and both were accordingly admitted, albeit unhelpfully late.

Hearing and Submissions

12. At the commencement of the hearing the parties were in agreement that the deportation decision made on 20 August 2024 should have been made with reference to the Citizen Rights Regulations and Regulation 27 of the EEA Regulations 2016, in accordance with the decisions in Abdullah & Ors (EEA, deportation appeals, procedure) [2024] UKUT 66 and Castro (Appendix EU, “deportation order”) [2024] UKUT 00393 and that Regulation 27 was therefore applicable. Any concession made at the hearing to that effect was therefore correct.

13. Mr Tan submitted that there nevertheless should not have been any concession that the imperative grounds threshold applied and maintained that that concession should be withdrawn. He submitted that all parties proceeded on an inappropriate basis in law and fact in that regard, as the principles in MG (prison-Article 28(3) (a) of Citizens Directive) Portugal [2014] UKUT 00392 should have been applied and consideration should have been to the ten year window before the deportation decision and whether the appellant’s integrative links had been broken because of his period of imprisonment. Mr Tan relied upon the case of Hafeez v The Secretary of State for the Home Department [2020] EWCA Civ 406 in regard to periods of imprisonment not counting towards the ten year period, and to the necessity to prove both ten years' residence ending with the date of the decision and sufficient integration within the ten year period. Mr Tan submitted that there was therefore a legal basis for the concession to be withdrawn. In so far as the rule 24 response asserted that the findings made by the judge were sufficient to amount to an integrative links consideration, ground two was relevant as it was relevant to consider the judge’s findings on the threat posed by the appellant. With regard to ground two, Mr Tan submitted that the judge made at least two mistakes of fact in his consideration of the OASys report, as he considered at [18] that the appellant posed a very low risk of re-offending whereas the report itself stated that the appellant posed a medium risk and a high risk to the public. That raised concerns about the question of anxious scrutiny in the judge’s decision as he appeared to have misread the evidence. Mr Tan submitted that the judge’s reliance on the appellant’s prospects of employment on release was not supported by the OASys report which, at page 646, referred to the appellant being at risk of re-offending during periods of unemployment. He submitted that the judge had not considered all the relevant points in the OASys report. Mr Tan submitted that the appeal should be allowed and the case remitted to the First-tier Tribunal.

14. Mr Holt submitted that it was not clear if there was any necessity for the concessions to be withdrawn, as it was now agreed that Regulation 27 applied irrespective of when the application was made under the EUSS, and it was accepted that the Bouchereau exception did not apply in imperative grounds cases, as settled by the decision in George. The respondent was effectively seeking to advance the case that they were wrong to say that the seriousness of the offence was sufficient in itself to meet the imperative grounds threshold, and to advance instead further arguments which were not made before the Tribunal, namely in relation to the relevant ten year period. Mr Holt submitted that that argument did not succeed in any event because the appellant was only in prison for the last year of the relevant ten year period and it was only during that time that his integrative links could be considered as broken, as found B (Citizenship of the European Union - Right to move and reside freely - Enhanced protection against expulsion - Judgment) [2018] EUECJ C-316/16. The question was not, therefore, whether the judge did the calculation properly, but whether he considered the Vomero test. Mr Holt submitted that it was accepted that the judge did not consider that test, but that that was immaterial because of the findings he otherwise made, at [16] to [18], which all suggested that the appellant’s integrative links had not been broken by his imprisonment. In any event the judge correctly directed himself at [15] in regard to the relevant period of time to be considered. Mr Holt submitted that the appellant succeeded in any event on the judge’s findings at [21] on Regulation 27(5)(c) and (e) which had nothing to do with the ten year period. On that basis Mr Holt submitted that ground one lacked materiality. As for ground two, Mr Holt submitted that the references made by Mr Tan in the OASys report to high risk and medium risk were not relevant to the current risk of re-offending and the “present” threat. In any event the judge’s decision on the issue of threat was not limited to the OASys report. The judge weighed in all the relevant factors including the appellant’s employment prospects. The operative part of his decision was that he found that the Secretary of State had not identified a present threat posed by the appellant.

15. Mr Tan submitted in response that the judge’s findings at [16] and [17] did not refer to the integrative links assessment and whether the links were broken, in accordance with Vomero, and there was no way of knowing if it was in the judge’s mind.

Discussion and conclusions

16. As a preliminary point, the respondent has requested that the anonymity order previously made in these proceedings be discharged. Mr Holt was unable to advise me why an order needed to be made. There is a strong public interest in the open administration of justice and no reasons have been provided as to why the decision ought to be anonymised. The decision does not involve issues of protection and neither is there reference to children or vulnerable third parties. Accordingly I have discharged the anonymity order made by the First-tier Tribunal.

17. Turning next to the concessions made by the Presenting Officer at the hearing before the First-tier Tribunal and the application to withdraw those concessions, UTJ Norton-Taylor properly pointed out in the grant of permission that the application made in the grounds in that respect was far from clear. Having now heard from Mr Tan and Mr Holt, it is apparent that the parties agree that the substantive standard in Regulation 27 applies within the appeal by incorporation through the definition of “deportation order” in Annex 1 to Appendix EU of the Immigration Rules, as set out in Abdullah & Ors, irrespective of when the appellant made an application under the EUSS. It is also agreed that the respondent’s position before the First-tier Tribunal, that the seriousness of the appellant’s offence was in itself sufficient to meet the imperative grounds threshold, was wrong, as established in George, with reference to Bouchereau. It is now common ground that the only concession of contention is the apparent concession that the imperative grounds threshold was the appropriate level of protection to be considered.

18. A reading of the judge’s decision suggests that he proceeded on an understanding that there was a concession by the respondent that the imperative threshold was the appropriate level of protection to be considered in the appellant’s case. No doubt it was on that basis that the judge therefore went straight on to consider whether the test was met, without engaging in an assessment of the substance and nature of the relevant ten year period and any break in the appellant’s integrative links to the UK caused by his imprisonment, in order to determine if that was indeed the relevant threshold to be considered. However it is apparent from the explanation provided by the Presenting Officer, as set out in Mr Tan’s skeleton argument, that the Presenting Officer was himself proceeding on a misunderstanding of the legal position in making a concession on the basis that he did, believing the ten year threshold for imperative grounds to have been met solely due to the appellant’s residence in the UK under the EEA Regulations rather than by way of consideration of the ten years prior to the deportation decision. It appears that there was therefore a miscommunication at the hearing and, through no fault of his own, the judge proceeded to make the decision on the basis that he did. The question remains, therefore, whether the judge’s decision ought to be set aside because of the Presenting Officer’s lack of understanding of the law, when the judge otherwise determined the appeal on the basis upon which he properly considered it to have been presented by the respondent. The appellant relies on the guidance in Lata (FtT: principal controversial issues) India [2023] UKUT 163 in asserting that the judge was entitled to reach the decision that he did on the basis that he did.

19. It seems to me that, whilst it is to be assumed that a Presenting Officer would be sufficiently knowledgeable in the relevant legal provisions so as to present a reliable case for the respondent, and one upon which the judge can reliably rely in making his decision, there is nevertheless a proper case here for the concession to be accepted as withdrawn. There clearly has been an absence of consideration, through miscommunication and misunderstanding, of an essential stage in the consideration of the appropriate level of protection to be afforded to the appellant, contrary to the position set out in law, in the Regulations themselves and the relevant caselaw, in particular Vomero (C-424/16):

“ 43. In that context, first of all, Article 28(1) of Directive 2004/38 provides generally that, before taking an expulsion decision ‘on grounds of public policy or public security’, the host Member State must take account in particular of considerations such as how long the individual concerned has resided on its territory, his or her age, state of health, family and economic situation, social and cultural integration into the host Member State and the extent of his or her links with the country of origin.”

“65. It follows, in particular, that the 10-year period of residence necessary for the grant of the enhanced protection provided for in Article 28(3)(a) of Directive 2004/38 must be calculated by counting back from the date of the decision ordering that person’s expulsion.”

“ 83. In the light of all the foregoing, the answer to the first three questions in Case C‑316/16 is that Article 28(3)(a) of Directive 2004/38 must be interpreted as meaning that, in the case of a Union citizen who is serving a custodial sentence and against whom an expulsion decision is adopted, the condition of having ‘resided in the host Member State for the previous ten years’ laid down in that provision may be satisfied where an overall assessment of the person’s situation, taking into account all the relevant aspects, leads to the conclusion that, notwithstanding that detention, the integrative links between the person concerned and the host Member State have not been broken. Those aspects include, inter alia, the strength of the integrative links forged with the host Member State before the detention of the person concerned, the nature of the offence that resulted in the period of detention imposed, the circumstances in which that offence was committed and the conduct of the person concerned throughout the period of detention.as regards the behaviour of the person concerned during the period of imprisonment.”

20. In such circumstances there are good reasons for the withdrawal to be accepted in this case, as consistent with the guidance in MH (Appendix EU, withdrawal of concession) Albania [2025] UKUT 351, and in particular [3(iv)] of the headnote to that case:

“An application to withdraw a concession may be more readily found to encompass good reasons if the concession has resulted in a decision which is demonstrably wrong in law. An example may be where a concession has resulted in a manifestly incorrect interpretation of the relevant Immigration Rules.”

21. As submitted by Mr Tan at [5] to [10] of his skeleton argument, in addressing the questions raised in [3(v)] and [3(vi)] of the headnote to MH, any prejudice caused to the appellant by the withdrawal of the concession is minimal given that he remains in custody until at least 2028 and will still have the benefit of a full appeal to assess his position. Furthermore, there has been an expeditious application to withdraw the concession, and full reasons have been given as to why the concession was made, supported by evidence, all of which in my view satisfy the requirements set out in MH.

22. It is Mr Holt’s submission that the fact that the judge did not undertake the test in Vomero was nevertheless immaterial and did not infect the outcome of the appeal. That was because in his submission the judge had addressed all the considerations relevant to the question of whether there had been a break in integrative links in any event, at [16] and [17] of his decision, and furthermore had found at [21] that the appellant had not been shown to represent a genuine, present and sufficiently serious threat affecting one of the fundamental interests of society. Whilst that may be true to some extent, such a submission omits a significant consideration, namely that the judge’s assessment in that regard was based to a large extent upon the fact that the respondent did not seek to identify any factors justifying a finding that the appellant represented a genuine and serious threat, aside from that arising from participating in the criminal offence. That, in turn, as ascertained and accepted by both parties, was as a result of the Presenting Officer’s misunderstanding of the law, that the “Bouchereau exception” did not apply in imperative grounds cases, as confirmed in George. The judge rejected the Presenting Officer’s submission as being contrary to the requirement in Regulation 27(5)(e) that the deportation decision could not be justified by a conviction alone, but it nevertheless remained the case that the judge relied upon a lack of factors identified by the respondent in making the decision that he did on the level of threat the appellant posed. Indeed, as made clear by the Court in Vomero, at [73] and [83], the nature and circumstances of the offence were relevant factors to be taken into consideration, as they formed part of the assessment of whether imprisonment had broken the appellant’s integrative links previously forged with the host Member State. Accordingly, as a result of a misunderstanding of the law by the Presenting Officer and miscommunication of the respondent’s case, there was a lack of a full and proper assessment of Regulation 27(5)(c) in the judge’s decision. It is not possible to conclude that the judge would have reached the same decision had he taken account of all the relevant matters. The error is therefore material.

23. It is also argued by the respondent that the judge’s assessment of whether the personal conduct of the appellant represented a genuine, present and sufficiently serious threat affecting one of the fundamental interests of society, was based upon a flawed analysis of the OASys report. As Mr Tan, that was relevant to both grounds one and two. Having read the OASys report myself, I have to agree with the respondent that the judge’s observation at [18], that the report assessed the appellant as a very low risk of re-offending, appears to be at odds with the references in the report at pages 643 and 674 to him posing a medium risk of re-offending and being assessed as a high risk of harm to the public. I accept, as Mr Holt submitted, that the risk of committing a further offence over the next two years was assessed on the OASys report as 0.33% and low, and that the other risk assessments took account of other elements, but nevertheless the judge did not undertake any analysis of those other risk assessments in his decision and ought, in my view, to have done so in order to justify a finding that the appellant was a very low risk of re-offending. I do not consider that any challenge to the judge’s findings in that regard can be classed as mere disagreement. Accordingly the judge’s assessment of the threat the appellant posed, for the purposes of Regulation 27(5)(c) was flawed on that basis in addition to that mentioned above.

24. In the circumstances, and for all these reasons, I agree with the respondent that the judge’s decision is fatally flawed and must be set aside and re-made. Mr Holt submitted that, in the event an error of law was found and the decision set aside, it could be re-heard in the Upper Tribunal with various preserved findings. However I agree with Mr Tan that the errors are such that the case has to be heard afresh. I do not consider that any findings can be preserved as they were to a large extent based upon concessions made by the Presenting Officer which in turn arose from a misunderstanding of the law and the relevant considerations to be taken into account. The appropriate course is therefore for the matter to be remitted to the First-tier Tribunal for a de novo hearing.

Notice of Decision

25. The making of the decision of the First-tier Tribunal involved the making of an error on a point of law. The Secretary of State’s appeal is allowed and the decision is set aside.

26. The appeal is remitted to the First-tier Tribunal pursuant to section 12(2)(b)(i) of the Tribunals, Courts and Enforcement Act 2007 and Practice Statement 7.2(b), to be heard before any judge aside from Judge Austin. It will be for the First-tier Tribunal to assess afresh whether the ‘serious grounds’ or ‘imperative grounds’ threshold applies to the appellant.

Anonymity

The First-tier Tribunal made an order pursuant to rule 13 of the Tribunal Procedure (First-tier Tribunal)(Immigration and Asylum Chamber) Rules 2014. I see no reason for that order to continue and I therefore discharge the order pursuant to rule 14 of the Tribunal Procedure (Upper Tribunal) Rules 2008 and under the Tribunal’s case management powers in rule 5(2) of the Tribunal Procedure (Upper Tribunal) Rules 2008.

Signed: S Kebede
Upper Tribunal Judge Kebede

Judge of the Upper Tribunal
Immigration and Asylum Chamber

3 August 2026