Tribunal decisions

The decision

IN THE UPPER TRIBUNAL
IMMIGRATION AND ASYLUM CHAMBER Case No: UI-2026-000954
First-tier Tribunal No: HU/50283/2025
LH/01822/2025

THE IMMIGRATION ACTS

Decision & Reasons Issued:
On 17 July 2026

Before

UPPER TRIBUNAL JUDGE HOFFMAN

Between

MARCO ANTONIO RODRIGUES DAVID
(NO ANONYMITY ORDER MADE)
Appellant
and

SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: Mr J Doerfel of Counsel, instructed by Ricardina Bridges Solicitors
For the Respondent: Ms L Clewley, Senior Home Office Presenting Officer

Heard at Field House on 25 June 2026

DECISION AND REASONS
1. The appellant appeals with permission against the decision of First-tier Tribunal Judge Oxlade (“the judge”) promulgated on 10 December 2025 dismissing his appeal against the respondent’s decision dated 5 November 2024 refusing to revoke a deportation order made against him.
Background
2. The appellant is a national of Portugal, born in 1979. He arrived in the United Kingdom in 1994 with his mother and brother. On 9 June 2009, he was convicted at Inner London Crown Court of wounding and sentenced to 42 months’ imprisonment. On 21 December 2009, the respondent made a decision to deport him pursuant to the Immigration (European Economic Area) Regulations 2006. The appellant appealed that decision, but his appeal was dismissed and he exhausted his appeal rights on 11 September 2012.
3. In the meantime, on 8 January 2012, the appellant was convicted of two counts of making threats to kill. He was sentenced to 18 months’ imprisonment and made subject to a restraining order.
4. A deportation order was signed on 4 December 2012, and the appellant was removed to Portugal on 8 April 2013.
5. On 23 May 2018, the appellant applied for revocation of the deportation order. That application was refused on 13 October 2018, and the appellant did not exercise his right of appeal.
6. On 15 September 2023, the appellant made a further application for revocation of the deportation order. He relied upon the passage of time since his deportation, the fact that he had served his sentence and learned from his past mistakes, and his claim that he had not reoffended since being removed from the United Kingdom. He also relied upon his family ties in the United Kingdom and contended that there were no longer sufficient reasons to maintain the deportation order. In addition, it was explained that he was receiving support from social services in Portugal, had undergone rehabilitative treatment, and had experienced a significant improvement in his mental health.
7. In a decision dated 5 November 2024, the respondent refused to revoke the deportation order. The reasons for that decision were set out in a refusal letter dated 1 November 2024. The respondent reviewed the appellant’s immigration and offending history and, at paragraph 30, referred to his claim that he had learned from his mistakes and had not reoffended since his deportation. The respondent noted that the copy of the appellant’s Portuguese criminal record was neither translated nor certified and was of poor quality (as it later transpired, that was incorrect). She went on to state that, even if the appellant had not reoffended,
“that fact alone is not accepted to be a significant material change in your circumstances as a lack of reoffending is a societal norm. In the absence of evidence that there has been any improvement in your personal circumstances since your conviction, or that you have successfully addressed the issues that prompted you to offend, it is considered reasonable to conclude that there remains a risk of re-offending and you continue to pose a risk of harm to the public, or a section of the public.”
8. At paragraph 32, the respondent concluded that the evidence did not demonstrate a material change in the appellant’s circumstances. At paragraph 33, she further concluded that the appellant retained a propensity to reoffend, represented a genuine, present and sufficiently serious threat affecting a fundamental interest of society, and posed a serious risk to the safety of the public or a section of the public.
9. The respondent decided that the continued maintenance of the deportation order was proportionate in light of the risk posed by the appellant. She then considered, and rejected, the appellant’s claim under Article 8 of the European Convention on Human Rights ("ECHR").
The decision of the First-tier Tribunal
10. The appellant exercised his right of appeal against the respondent’s decision. However, in her decision dated 10 December 2025, the judge dismissed the appeal under the EEA Regulations. She made no express findings in relation to the appellant’s Article 8 ECHR claim.
The appeal to the Upper Tribunal
11. On 2 March 2026, Judge Oxlade granted permission in part against her own decision on the following grounds:
a. Ground 1: The judge failed to apply the correct burden of proof by finding that it was for the appellant to prove that he no longer posed a genuine, present and sufficiently serious threat, rather than the respondent to prove that he still poses such a threat.
b. Ground 3: In finding that the burden of proof was on the appellant, the judge had acted in a procedurally improper manner.
c. Ground 4(ii): The judge erred by failing to consider the appellant’s Article 8 ECHR rights both as part of the proportionality assessment in relation to regulation 27(5)(a) of the Immigration (European Economic Area) Regulations 2016 (“the EEA Regulations”) or as a freestanding claim outside of the Immigration Rules.
12. Although the judge expressly refused permission in respect of Ground 2, she overlooked that the grounds of appeal contained a further ground, also numbered Ground 4 (which, for clarity, I shall refer to as Ground 4(i)). That ground asserts that, even if the judge correctly directed herself as to the burden of proof, she nevertheless erred by failing to consider whether the appellant continued to pose a “present” threat for the purposes of regulation 34(5) of the EEA Regulations, notwithstanding the evidence said to demonstrate his rehabilitation. The ground further contends that, on the evidence before her, any conclusion that the appellant continued to pose a present threat would have been irrational. As the judge did not expressly refuse permission in respect of Ground 4(i), I am satisfied that the appellant is entitled to rely upon it before the Upper Tribunal: see Safi and others (permission to appeal decisions) [2018] UKUT 388 (IAC).
The legal framework
13. Under regulation 34 of the EEA Regulations (as saved by regulation 2 of, and the Schedule to, the Citizens’ Rights (Restrictions of Rights of Entry and Residence) (EU Exit) Regulations 2020 and regulation 82 to, and Schedule 3 of, the Immigration and Social Security Co-ordination (EU Withdrawal) Act 2020 (Consequential, Saving, Transitional and Transitory Provisions) (EU Exit) Regulations 2020), a person subject to a deportation order made pursuant to regulations 23(6) (or the equivalent provision in the earlier 2006 Regulations) may apply for the order to be revoked in the following circumstances:
“(3) A person who is subject to a deportation or exclusion order may only apply to the Secretary of State to have it revoked on the basis that there has been a material change in the circumstances that justified the making of the order.
(4) An application under paragraph (3) must set out the material change in circumstances relied upon by the applicant and may only be made whilst the applicant is outside the United Kingdom.
(5) On receipt of an application under paragraph (3), the Secretary of State must revoke the order if the Secretary of State considers that the criteria for making such an order are no longer satisfied.
(6) The Secretary of State must take a decision on an application under paragraph (2) no later than six months after the date on which the application is received.”
14. In the present case, the appellant was deported on grounds of public policy or public security. Therefore, for the purposes of regulation 34(5), the respondent is required to consider whether the criteria set out under regulation 27 continue to weigh in favour of the appellant’s exclusion from the United Kingdom. Of particular relevance are paragraphs (5) and (8):
“(5)  The public policy and public security requirements of the United Kingdom include restricting rights otherwise conferred by these Regulations in order to protect the fundamental interests of society, and where a relevant decision is taken on grounds of public policy or public security it must also be taken in accordance with the following principles
(a)  the decision must comply with the principle of proportionality;
(b)  the decision must be based exclusively on the personal conduct of the person concerned;
(c)  the personal conduct of the person must represent a genuine, present and sufficiently serious threat affecting one of the fundamental interests of society, taking into account past conduct of the person and that the threat does not need to be imminent;
(d)  matters isolated from the particulars of the case or which relate to considerations of general prevention do not justify the decision;
(e)  a person's previous criminal convictions do not in themselves justify the decision;
(f)  the decision may be taken on preventative grounds, even in the absence of a previous criminal conviction, provided the grounds are specific to the person.
[…]
(8)  A court or tribunal considering whether the requirements of this regulation are met must (in particular) have regard to the considerations contained in Schedule 1 (considerations of public policy, public security and the fundamental interests of society etc.).”
[Underlining added]
15. The burden of proving that a person represents a genuine, present and sufficiently serious threat affecting one of the fundamental interests of society rests on the Secretary of State, and the standard of proof is the balance of probabilities: see Arranz (EEA Regulations - deportation - test) [2017] UKUT 294 (IAC).
Discussion
Grounds 1 and 3: The burden of proof
16. Grounds 1 and 3 contend that the judge erred in law by impermissibly shifting the burden of proof under regulation 34(5) onto the appellant, requiring him to demonstrate that he did not represent a genuine, present and sufficiently serious threat, when that burden properly rested on the respondent. It is further argued that she did so notwithstanding her recording at [11] that both parties agreed that the burden lay on the respondent.
17. At [26]-[27] of her decision, the judge set out what she considered to be the relevant law:
“26. The [EEA] Regulations provide that where an application for revocation is made on the basis of a material change in circumstances the application must be considered. I consider that the threshold is low, and that could be satisfied simply the passage of time and an assertion of change. I do not consider that it would be a proper discharge of the Respondent’s function to apply an high threshold, because ultimately, all decisions of the State must be Human Rights complaint [sic], and continue to be complaint [sic].
27. Having met the criteria for the application, I interpret the Regulations as assuming a continuation of the status quo (i.e. continuation of the deportation order), unless the criteria which applied at the time is no longer satisfied. I take that from the plain wording of the Regulations i.e. ”must revoke if … the criteria is no longer satisfied”. Though it was strongly argued by the Appellant that the burden of proof rests on the Respondent to show that it continues to be justified, as many of the facts will be within the Appellant’s knowledge, I reject that submissions, and consider that the burden is on the Appellant to show that it should not be continued.”
18. There are a number of difficulties with that summary of the law. First, it is unclear on what basis the judge concluded that the threshold for demonstrating a material change of circumstances is “low”, as opposed to being assessed in the ordinary way on the balance of probabilities. Secondly, it is unclear why considerations of human rights were regarded as relevant to the question whether a material change in circumstances had been established. Thirdly, it is unclear whether, in [27], the judge was addressing paragraph (3) of regulation 34, which permits an application for revocation only where there has been a material change in the circumstances which led to the making of the deportation order, paragraph (5), which requires the respondent to revoke the order if the criteria for making it are no longer satisfied, or both.
19. In my judgment, the structure of regulation 34 is straightforward. By virtue of paragraphs (3) and (4), the burden rests initially on the applicant, who must establish that there has been a material change in the circumstances which led to the making of the deportation order. An application may only be made when the applicant is outside the United Kingdom. Once a material change of circumstances has been established, regulation 34(5) requires the respondent to show that the criteria for making the deportation order remain satisfied; that is, that the applicant continues to represent a genuine, present and sufficiently serious threat affecting one of the fundamental interests of society.
20. However, while the appellant argues that the judge misapplied the legal burden under regulation 34(5), from reading the decision, it appears that the judge considered only whether the appellant had demonstrated a material change to the circumstances for the purposes of regulation 34(3). At [33], she says:
“For the reasons explained above, I have found that the correct interpretation of regulation 34(1)(3) [sic], [sic] is that the status quo will continue unless the Appellant discharges the burden of showing that the order is no longer justified.”
And at [38]:
“In the circumstances. I have not found that the Appellant has discharged the burden on him to show that there has been a material change in the circumstances that justified the making or the order.”
21. The reference at [33] to the appellant being required to show that “the order is no longer justified” appears, at first sight, to conflate the distinct inquiries required by regulations 34(3) and 34(5). However, reading [33]–[38] in context, I am satisfied that the judge was addressing only the question whether the appellant had established a material change in circumstances. Having concluded that he had failed to do so, it was unnecessary for her to proceed to consider whether the respondent had demonstrated, for the purposes of regulation 34(5), that the appellant continued to represent a genuine, present and sufficiently serious threat.
22. It follows that the judge did not err by placing upon the appellant the burden of establishing a material change in the circumstances which led to the making of the deportation order. Grounds 1 and 3 are therefore not made out.
23. I do, however, consider that the judge did not appear to follow her own self-direction at [26] that the threshold for establishing a material change of circumstances was a “low” one. Nevertheless, that self-direction was itself erroneous in law. The judge cited no authority for the proposition that a reduced standard or threshold applies, and I can see no basis upon which the applicable standard differs from the ordinary civil standard of proof, namely the balance of probabilities: see Arranz. It is therefore unclear precisely what standard the judge applied when determining whether the appellant had established a material change of circumstances for the purposes of regulation 34(3). If she in fact applied the balance of probabilities, she may well have been entitled to reach the findings set out at [34]–[37]. However, I need not address this issue: even if this error could be regarded as material, it was not the subject of a ground upon which permission to appeal was granted.
Ground 4(i): Whether the appellant poses a “present” threat
24. Ground 4(i) is misconceived. The judge made no findings in relation to regulation 34(5). Her analysis concluded at regulation 34(3), and she did not go on to consider whether the appellant represented a genuine, present and sufficiently serious threat. In those circumstances, it cannot be said that she erred in her assessment of regulation 34(5), because she made no assessment under that provision at all.
Ground 4(ii): Failure to consider proportionality/Article 8 ECHR
25. I am, however, satisfied that the judge materially erred in law in her approach to Article 8 ECHR. She made no findings whatsoever in relation to this aspect of the appellant’s appeal. At [11], she recorded that
“Mr. Doerfez [sic] said that he conceded that if the Appellant could not meet the Article 8 ECHR test as expressed in Regulation 27(5) then the Appellant could not meet the test in s117C of the [Nationality, Immigration and Asylum Act 2002], so would make no submission on that.”
However, as explained above, the judge did not proceed to consider whether the appellant posed a genuine, present and sufficiently serious threat for the purposes of regulation 34(5). Consequently, she did she not undertake the proportionality assessment required by regulation 27(5). Having brought her analysis under the EEA Regulations to an end at regulation 34(3), she failed to address the issue upon which counsel’s concession was expressly predicated. As a consequence, no assessment of proportionality was undertaken and no determination was made of the appellant’s Article 8 claim. I am therefore satisfied that the judge materially erred in law by failing to consider the proportionality of the respondent’s decision under Article 8.
26. In any event, the appellant’s Article 8 claim was identified as an issue for determination in both the appellant’s skeleton argument and the respondent’s review. Even if the judge considered that the Article 8 claim would stand or fall with the appellant’s case under EU law, she was nevertheless required to address that claim and to give reasons for rejecting it. The failure to make any findings on a live ground of appeal, or otherwise to explain why it was not determinative, constitutes a material error of law. The judge’s failure to resolve the appellant’s Article 8 case therefore provides a separate basis upon which her decision must be set aside.
Conclusion
27. For the reasons given above, the appeal is allowed on Ground 4(ii).
Disposal
28. I remind myself that there is a presumption that an appeal should be retained by the Upper Tribunal unless the proceedings before the First-tier Tribunal were affected by procedural unfairness, or unless the nature or extent of the fact-finding required in order to remake the decision is such as to make remittal appropriate. In the present case, the judge failed to make any findings in respect of the appellant’s Article 8 claim. In those circumstances, I am satisfied that the appellant should have the opportunity for that claim to be determined at first instance by the First-tier Tribunal. Moreover, the fact-finding required to determine the Article 8 issues is sufficiently extensive to favour remittal.
29. I have considered whether the judge’s findings in relation to the application under regulation 34 of the EEA Regulations should be preserved. However, although I have rejected Grounds 1 to 4(i), I retain some doubts as to the judge’s overall approach to those issues. In addition, preserving some findings while remitting the appeal may unnecessarily constrain the First-tier Tribunal’s consideration of the case on remittal. Accordingly, having regard to paragraph 7.2 of the Practice Statements for the Immigration and Asylum Chambers of the First-tier Tribunal and the Upper Tribunal, I conclude that the appropriate course is to remit the appeal to the First-tier Tribunal for a de novo hearing.
Notice of Decision
The decision of the First-tier Tribunal is vitiated by a material error of law and is set aside with no findings preserved.
The appeal is to be remitted to the First-tier Tribunal at Harmondsworth to be heard by any judge other than Judge Oxlade.

M R Hoffman

Judge of the Upper Tribunal
Immigration and Asylum Chamber

3rd July 2026