Tribunal decisions

The decision

IN THE UPPER TRIBUNAL
IMMIGRATION AND ASYLUM CHAMBER Case No: UI-2026-000835
First-tier Tribunal No: EA/50376/2024

THE IMMIGRATION ACTS

Decision & Reasons Issued:
On 1 September 2026

Before

DEPUTY UPPER TRIBUNAL JUDGE SOLANKI

Between

TUNDE LAWAL ALAO
(NO ANONYMITY ORDER MADE)
Respondent
and

SECRETARY OF STATE FOR THE HOME DEPARTMENT
Appellant

Representation:
For the Appellant: Ms Keerthy, Senior Presenting Officer
For the Respondent: Mr Shah, Legal Representative of 786 Law Associates

Heard at Field House on 4 June 2026

DECISION AND REASONS
Introduction
1. The Secretary of State for the Home Department (SSHD) has appealed to this Tribunal. For the purposes of this document, the Tribunal refers to the parties in the way in which they were before the FtT hereafter. The Secretary of State will be referred to as the Respondent and Mr Alao as the Appellant.
2. By a decision dated 12 December 2025, First-tier Tribunal (FtT) Judge Andrews (‘the Judge’) allowed an appeal brought by the Appellant, a citizen of Nigeria, against a decision of the Secretary of State dated 22 April 2014 that made a deportation order against him under the Immigration (European Economic Area) Regulations 2016. The SSHD now appeals to this Tribunal against the decision of the Judge to allow that appeal.
3. The issue for this Tribunal to determine is whether the FtT made a material error of law is allowing this appeal.
Factual Background
4. The Appellant first arrived in the UK in 2004-2005. His last entry was in 2006, when he was around age 24. The Respondent accepts this.
5. On 24 August 2020, he applied for leave under the EU Settlement Scheme (EUSS) as a non-EU national dependant of his EU national wife. He was granted limited leave to remain on 11 February 2021.
6. The Appellant was convicted of conspiracy to defraud in June 2022 for the production of fake driving licences between 2019 and January 2022. He pleaded guilty to the charge. He was sentenced to 31 months and ordered to pay a victim surcharge of £149. He was in prison between 5 May 2022 and 28 August 2023.
7. Since October 2023, he has been in employment (part-time) with the same employer. The Respondent accepts this.
Procedural History
8. On 26 January 2023 he was served with a one stop notice and other documents dated 22 January 2023 informing him he was liable to deportation with reference to s32(5) of the UK Borders Act 2007. The Respondent accepts this was served as an ‘oversight’ with reference to the wrong legal framework (para.2 decision of SSHD). On 2 October 2023 he responded to this notice. He also appealed the decision dated 22 January 2023.
9. On 14 February 2024 the SSHD wrote to the Appellant to notify him that they intended to make a deportation order against him on the grounds of public policy and/or public security in accordance with Regulation 23(6)(b) and Regulation 27 of the Immigration (European Economic Area) Regulations 2016.
10. On 8 March 2024 the Respondent served the Appellant with a notice to say he was liable to deportation under the Immigration (European Economic Area) Regulations 2016. On 22 April 2024 the Respondent made a deportation order and provided reasons for doing so with reference to the Immigration (European Economic Area) Regulations 2016 and Article 8 ECHR. The Appellant appealed this decision.
11. On 22 March 2024 his appeal against the decision dated 22 January 2023 was treated as withdrawn by the Tribunal.
12. His appeal came before the FtT on 25 November 2025. His appeal was allowed in a decision dated 12 December 2025.
13. Before the FtT it was agreed by the parties that his appeal fell to be determined by reference to the EEA Regulations 2016, and not the domestic regime. As explained above, the Respondent before the FtT had accepted that an earlier decision was made under the wrong legislation (para. 7 FtT decision).
14. It was also agreed by the parties before the FtT that the issues in dispute were (a) whether the Appellant had a right of permanent residence, (b) whether the Appellant’s deportation was justified on grounds of public policy and/or public security, and (c) whether his deportation would be disproportionate under Article 8 ECHR, i.e., whether there were very compelling circumstances which outweighed the public interest in the Appellant’s deportation (paras. 12-13 FtT decision).
15. The FtT found as follows in summary:
i. The Appellant did not hold leave in the UK prior to 11 February 2021 (para. 20) and had spent time in the UK unlawfully (para.24(a)).
ii. He had not demonstrated continuity of residence and had not acquired permanent residence. As such, he was not entitled to enhanced protection (paras. 21-23).
iii. The fraud in which he was involved was unsuccessful, but it would have generated a great deal of money had it been successful (para. 24(b)).
iv. He was assessed in the pre-sentence report as at low risk of serious harm to others and at low risk of offending more generally. However, the probation officer departed from this on the basis that owing to lack of status and the impact of this on sustained employment. The probation officer placed him at medium/high risk of offending (para.26).
v. He had since been employed for over two years, his employer spoke very highly of him, the employer expected his employment to continue. As such, the reason the probation officer gave for departing from the low risk of reoffending assessment no longer pertained (para. 26(a)).
vi. The pre-sentence report said his risk would increase if he did not address his criminogenic and offence triggering behaviour. The Appellant said he had undertaken courses to address his behaviour; only one certificate was before the Tribunal (para. 26(b)).
vii. It had between 2 years since he had left prison and he had not committed further offences (para.26(c)).
viii. The weight of the evidence pointed to the conclusion that he was now at low risk of offending (para. 27).
ix. His offences were serious, there was public interest in protection from fraud which was a very serious problem in UK society, his crimes could have impacted the individuals, there was public interest in removal of foreign criminals from the UK and in maintaining public confidence in the ability of the UK authorities to take such action. He was here without leave for many years and the fundamental interests of society include preventing unlawful immigration and abuse of immigration laws (para.28).
x. Under Regulation 27(5)(c) what had to be considered was the level of threat he now posed and whether he was a present threat. Regulation 27(5)(e) states that a person’s criminal convictions do not themselves justify a removal decision. As per SSHD v Straszewski [2015] EWCA Civ 1245, the future was the focus as opposed to the past.
16. The Judge concluded as follows:
‘30. The appellant’s past offending was very serious and contrary to the fundamental interests of society. However, the weight of the evidence suggests that he now has a low risk of reoffending. Having considered all the evidence in the round, the respondent has not satisfied me that the appellant’s personal conduct represents a genuine, present and sufficiently serious threat affecting one of the fundamental interests of society. I have considered the considerations referred to in EEA Regulation 27(6) (paragraph 10 above), and in Schedule 1 to the EEA Regulations. However, I am not satisfied that any of these suggests that the appellant should lose his appeal, given that I am not satisfied that his personal conduct represents a genuine, present and sufficiently serious threat affecting one of the fundamental interests of society. Because of this, I find that the respondent’s decision is not in accordance with the EEA Regulations. This means the appellant’s appeal succeeds, by reference to EEA Regulation 27(5).’
‘31. In view of the wording in EEA Regulation 27, I need not go on to address the principle of proportionality, or the other principles referred to in EEA Regulation 27(5). It is also not necessary for me to address Article 8 of the ECHR.’
17. The Respondent appealed the decision of the FtT to the Upper Tribunal on 17 December 2025. She was refused permission to appeal by Resident Judge Clarke in a decision dated 16 February 2026.
18. The Respondent renewed her application for permission to appeal on 23 February 2026.
19. The Appellant was granted permission to appeal by Deputy Upper Tribunal Judge Parkes in a decision dated and sealed 2 April 2026.
Issues on Appeal to the Upper Tribunal
20. There is only one ground of appeal advanced by the SSHD. The grounds of appeal are badly particularised. The author of the grounds may in the future be assisted by considering the guidance set out in Rai & Anor v Secretary of State for the Home Department (Grounds of Appeal - Limited Grant of Permission) [2025] UKUT 150 (IAC). I summarise the grounds here:
i. Ground One: The Judge has failed to give adequate reasons for findings on a material matter.
a. The Judge has failed to give adequate regard to the pre-sentence report in which a probation officer places the Appellant at medium/high risk of offending at para. 30 where she finds that the Respondent has not shown that his conduct does represent a genuine, present and sufficiently serious threat to the fundamental interests of society.
b. It was an error of law for the judge to find that the Appellant’s part-time employment which he had held for over two years meant this risk level fell away and to take a narrow interpretation of ‘sustained’ as referring only to past employment. There is no consideration as whether his employment on this basis is ‘sustainable’ on an ongoing basis such as to avoid the risk.
c. It was observed by the probation officer that his offending was financially motivated and he had no regard to the impact on his victims. The pre-sentence report shows his rent is £950 a month and his pay slips show he earns £1000 a month. The Judge has failed to consider how such an income can be regarded as sustainable such as to demonstrate he will not be motivated to offend in the future on the basis identified by the probation officer.
d. There is no evidence that he has undertaken rehabilitation to show awareness on the impact on his victims or that he has addressed the deficit in his thinking skills to dissuade offending. By failing to take these factors in account the judge has failed to give adequate reasons for finding he does not pose a genuine, present and sufficiently serious threat to the fundamental interests of society.
Hearing
21. The matter came before me on 4 June 2026 in an error of law hearing. I had before me a composite bundle of 180 pages (CB) and a Rule 24 Reply sent by email 12 May 2026.
22. The decision under appeal, dated 22 April 2024, was not in the CB in full (in that mine had missing words and letters). As such, I obtained the complete copy of this decision from My HMCTS.
23. I heard submissions from Ms Keerthy and Mr Shah.
The Law
24. EEA Regulation 27(5) effectively requires the Respondent’s decision to be 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.’
25. The ‘fundamental interests of society’, as referred to in EEA Regulation 27(5)(c), are expanded upon in Schedule 1 of those Regulations (to which EEA Regulation 27(8) also requires me to have regard).
26. If a person has a right of permanent residence in the UK under relevant EEA regulations, then no removal decision may be taken against him/her except on serious grounds of public policy and public security; or (if he/she has been continuously resident in the UK for a continuous period of 10 years, prior to the relevant decision) on imperative grounds of public security (EEA Regulations 27(3) and 27(4)).
27. EEA Regulation 27(6) states that, before making such a decision, the decision maker must take account of considerations such as the appellant’s age, state of health, family and economic situation, length of residence in the United Kingdom, social and cultural integration into the United Kingdom, and the extent of his links with his country of origin.
28. The jurisdiction of the Upper Tribunal on an appeal from the First-tier Tribunal lies only in relation to an error of law, not a disagreement of fact; see R (Iran) v Secretary of State for the Home Department [2005] EWCA Civ 982 at paragraph 9. The criteria there summarised by the Court of Appeal include the following:
i. Making perverse or irrational findings on a matter or matters that were material to the outcome ("material matters");
ii. Failing to give reasons or any adequate reasons for findings on material matters;
iii. Failing to take into account and/or resolve conflicts of fact or opinion on material matters;
iv. Giving weight to immaterial matters;
v. Making a material misdirection of law on any material matter;
vi. Committing or permitting a procedural or other irregularity capable of making a material difference to the outcome or the fairness of the proceedings;
vii. Making a mistake as to a material fact which could be established by objective and uncontentious evidence, where the appellant and/or his advisers were not responsible for the mistake, and where unfairness resulted from the fact that a mistake was made.
29. It is important, as has been repeatedly emphasised in many authorities, not to construe disagreements of fact as errors of law. See the decision of the Presidential Panel in Joseph (permission to appeal requirements) [2022] UKUT 218 IAC at paragraphs 13-14:
13. …As Warby LJ put it in AE (Iraq) v Secretary of State for the Home Department [2021] EWCA Civ 948; [2021] Imm AR 1499 at [32]:
“Commonly, the suggestion on appeal is that the FTT has misdirected itself in law. But it is not an error of law to make a finding of fact which the appellate tribunal might not make, or to draw an inference or reach a conclusion with which the UT disagrees. The temptation to dress up or re-package disagreement as a finding that there has been an error of law must be resisted.”

14. Warby LJ recalled the judgment of Floyd LJ in UT (Sri Lanka) v Secretary of State for the Home Department [2019] EWCA Civ 1095 at [19]:
“…although 'error of law' is widely defined, it is not the case that the UT is entitled to remake the decision of the FTT simply because it does not agree with it, or because it thinks it can produce a better one. Thus, the reasons given for considering there to be an error of law really matter.”
30. I also remind myself of EA v SSHD [2017] EWCA Civ 10 at §27, ‘as Lord Hoffmann said in Piglowska v Piglowski [1999] 1 WLR 1360, 1372, "reasons should be read on the assumption that, unless he has demonstrated the contrary, the judge knew how he should perform his functions and which matters he should take into account". He added that an "appellate court should resist the temptation to subvert the principle that they should not substitute their own discretion for that of the judge by a narrow textual analysis which enables them to claim that he misdirected himself". See also Quarey, R (on the application of) v SSHD [2017] EWCA Civ 47 at §36 onwards.
Decision
Failure to Adequately Consider Pre-Sentence Report and Medium/High Risk of Offending
31. The Respondent firstly states that the Judge has failed to adequately consider the pre-sentence report in which a probation officer places the Appellant at medium/high risk of offending. For completeness, I set out the relevant parts of the pre-sentence report here:
‘Likelihood of further offending:
To inform my risk assessment, I have used the Probation tool Offender Group Reconviction Scale (Offender Group Reconviction Scale) which draws upon statistical data such as number and type of conviction age at first and current convictions, current offence type and estimates the likelihood of reconviction within a two year period of a group of offenders with a similar history of offending. Mr Aloa reconviction calculation is 6% within 1 year and 12% within 2 years. This with the low range. However in light of his lack of status in the country and the impact this will have on finding sustained employment, I would not be inclined to agree with this assessment and instead place him at a medium/high level. This risk could be reduced if Mr. Aloa engages with interventions focused on addressing the identified criminogenic and offence triggering behaviour. Should Mr. Aloa fail to addresses these risk factors, his risk of reoffending will increase.’
32. At para. 26 of the FtT decision the Judge specifically addresses the pre-sentence report, she refers to the assessment (on the reconviction scale) which shows he was assessed to pose only a low risk of further offending and an low risk of serious harm, but she also sets out the reasons why the author of the pre-sentence report departed from this assessment on risk of re-offending (i.e., lack of status and the impact of this on sustained employment).
33. It is clear reading the decision as a whole that the Judge has plainly had adequate regard to the pre-sentence report and to the assessment of risk made by the author of the report. There is no material error of law in this regard.
Failure to Consider whether Appellant’s Employment was Sustainable
34. The Respondent then argues that the Judge has failed to consider whether the Appellant’s employment was sustainable on an ongoing basis, and that it was not enough for the Judge to refer to the fact his employment had been ongoing for a number of years.
35. The Judge specifically refers to the ‘unchallenged letter’ from the Appellant’s employer and the fact that the employer expects the employment for the Appellant to continue at para. 26(a) of her decision.
36. I have considered the initial offer letter dated September 2023 (CB 75) and the follow up letter from the Director of the company dated October 2025 (CB 76) that was before the FtT. The latter states:
“I am writing to express my strong support for Mr. Tunde Alao, who is currently employed at [our company] as Office Assistant and Client Coordinator. Mr. Alao has been a highly valued member of our team since 1st of October 2023, and I believe that it is in the best interest of both our business and the community for him to remain in the UK.
Throughout his time [he] has demonstrated exceptional skills and dedication. He plays a vital role in our operations, particularly in Data Management and getting our customers quality services in excellent time. His knowledge and experience in IT, combined with his excellent work ethic, have made a significant impact on the growth and success of our company.
Furthermore, Mr. Alao's unique skill set is difficult to replace, and losing him would create a substantial gap in our workforce, affecting productivity and potentially leading to business disruption.
In addition to his professional contributions, Mr. Alao has integrated well into UK society, building strong relationships with his colleagues and actively participating in community events. His presence in the UK is not only beneficial for our business but also for the broader community in which he lives and works.
I kindly request that you consider granting Mr. Alao the right to remain in the UK so that he can continue his employment with us and further contribute to the success of both our company and the UK economy. We are confident that he will continue to be a productive and responsible resident in this country.”
37. The Respondent’s complaint is not made out. It is very clear from the letter that the employer expected and indeed wished for the Appellant’s employment to continue. Moreover, it is clear from para. 26(a) of the FtT decision that the Judge had regard to this letter in coming to her conclusions on the sustained nature of his employment. She considered the assessment made in the pre-sentence report and the risk she considered he posed in light of this evidence specifically.
38. Further, the pre-sentence report (which was dated August 2022) said that, ‘Mr. Aloa's lack of constructive employment could be seen as an offending behaviour triggering factor. It is my assessment that Mr. Aloa would benefit from a referral to Education, Training & Employment partnership agency to explore his employment options.…Mr. Alao advised me that he was unemployed at the time of commission of this offence.’
39. The employment situation at the date of the hearing was clearly very different to the situation at the time of the offence and at the date the pre-sentence report was written. The Judge’s decision shows she considered and weighed the evidence on his employment and likely future employment. There is no material error of law here.
Failure to Consider the Appellant’s Accommodation Costs in Considering Risk
40. The Respondent then says that the pre-sentence report shows his rent is £950 a month and his pay slips show he earns £1000 a month. It is said that the FtT has failed to consider how such an income can be regarded as sustainable such as to demonstrate he will not be motivated to offend in the future on the basis identified by the probation officer. It is said that the probation officer noted that his offending was financially motivated.
41. Having considered the refusal letter, the Respondent’s review (CB 157-162) and the FtT decision this was not an issue argued or raised by the Respondent specifically in the FtT. I remind myself of TC (PS compliance - "issues-based" reasoning) Zimbabwe [2023] UKUT 00164 (IAC) which emphasises the importance of properly identifying the issues in dispute between the parties, the parties focussing on addressing the relevant evidence and law, and the need for meaningful Respondent reviews. I also note that in the decision of Lata (FtT: principal controversial issues) [2023] UKUT 00163 (IAC) parties were reminded of the need to engage in a process of defining and narrowing the issues in dispute, for there to be clarity on the issues in dispute when before the FtT, the appeals procedure has been reformed to ensure that a judge is not required to trawl through papers to identify the issues that need to be addressed, and that a party that fails to identify an issue before the FtT is unlikely to have a good ground of appeal before the Upper Tribunal. On this basis alone, I find that there is no material error of law on this issue.
42. Nonetheless, I consider the point raised.
43. Mr Shah referred me to the fact that the evidence of the Appellant’s brother in his written statement was that during the Appellant’s time in prison, he and some friends had taken it upon themselves to ensure his flat remained accessible and maintained (to provide the Appellant with stability and hope for his future), that they collectively believed by offering him a secure place to stay they could facilitate his transition back to society and his rehabilitation and personal growth (CB 58). The pre-sentence report also referred to the Appellant’s brother paying his rent whilst he was in prison (CB 170).
44. I note that the Appellant’s bank statements are in the bundle that was before the FtT (CB 68-74). As was raised in the error of law hearing, they suggest that he was residing at a different address to the one he lived at when he saw the probation officer for the pre-sentence report (CB 167). Significantly, I note that the evidence which was before the FtT showed the Appellant’s income was going into his bank account each month, and importantly that his balance was consistently over £2000 over the several months of accounts produced.
45. It follows that it was not actually clear what his rent was at the date of hearing. Alternatively, it was not demonstrated on the documents that his income/financial position was ‘unsustainable’. Indeed, the Appellant’s financial position looked ‘sustainable’ on the documents before the FtT. The Respondent was before me unable to point to evidence to show that his income, employment and/or financial position was ‘unsustainable’ as argued in the grounds of appeal or to demonstrate that the Judge had erred by failing to have regard to relevant evidence in this regard.
46. As I say above, this issue was not advanced before the FtT.
47. It follows, that there is no material error of law in this regard.
Failure to Have Take into Account Appellant’s Evidence or Lack of Evidence of Rehabilitation
48. The Respondent next argues that there is no evidence that he has undertaken rehabilitation to show awareness to dissuade offending. In making this argument, she refers to the pre-sentence report and the fact that the Appellant’s thinking, awareness and need to develop his understanding was important to prevent further offending. It is said that by failing to take this into account the Judge has failed to give adequate reasons for finding that the Appellant does not pose a genuine, present and sufficiently serious threat to the fundamental interests of society.
49. The pre-sentence report says:
“It is my assessment that this offence had a clear financial motive. It would be my view that Mr. Alao would benefit from a more thorough exploration and assessment of his thinking as he demonstrated traits -in regards poor perspective taking, a lack of awareness of his actions and poor consequential thinking. He would benefit from developing his understanding further to reduce the likelihood of any further offending behaviour.”
It is argued that the Judge failed to take these factors into account.
50. The Judge refers to the pre-sentence report at para. 26(b) of her decision. She here specifically refers to the fact that the Appellant needed to address his identified criminogenic and offence triggering behaviours.’ She then goes on to refer to the fact the Appellant said he had completed courses to address his behaviours and that there was evidence of only one certificate for a course completed by the Appellant. I have myself considered this document and the certificate shows he successfully completed a Social Crime Awareness and Prevention Course (CB 67). It follows from this that the Judge had regard to this factor and the limited nature of documents before her on this issue in coming to her conclusions.
51. It cannot be said there is any material error of law in this regard, as the Judge has specifically had regard to the point raised by the Respondent, she considered this factor and weighed the relevant evidence before her in coming to her conclusion on the risk posed by this Appellant.
52. Mr Shah also referred me to further aspects of the pre-sentence report in looking at materiality. He said the report made clear that as the Appellant did not have an established pattern of offending he did not meet the threshold for any accredited programmes (CB 170), that he was not assessed as suitable for participation in an offending behaviours programme owing to his low assessments for risk of offending and serious harm (CB 174), and that one of the recommendations made in that report was a rehabilitation activity requirement which may include a referral to the Education, Training and Employment team within a view to support the Appellant as he pursued constructive employment.
53. Reading the decision as a whole, it is clear that the Judge has had regard to the issues and evidence raised by the Respondent in the appeal to this Tribunal. The decision is well reasoned. Whilst the Respondent may disagree with the decision of the Judge, as the case law set out at paras. 28 to 30 of my decision shows, a disagreement of fact is not an error of law.
Notice of Decision
54. For the aforementioned reasons, I find that the grounds of appeal do not make out any material errors of law in the decision of the First-Tier Tribunal.
55. The appeal is dismissed. The decision of the First-Tier Tribunal to allow this appeal stands.

P. Solanki

Deputy Judge of the Upper Tribunal
Immigration and Asylum Chamber

21 August 2026