Tribunal decisions

The decision

IN THE UPPER TRIBUNAL
IMMIGRATION AND ASYLUM CHAMBER Case No: UI-2026-001572
First-tier Tribunal No: HU/52034/2024
LH/00246/2025

THE IMMIGRATION ACTS

Decision & Reasons Issued:
On 17 August 2026

Before

UPPER TRIBUNAL JUDGE LANE
DEPUTY UPPER TRIBUNAL JUDGE ALIS

Between

Secretary of State for the Home Department
Appellant
and

Giuseppe Dino Chiaverni
(NO ANONYMITY ORDER MADE)
Respondent

Representation:

For the Appellant: Ms Newton, Senior Presenting Officer
For the Respondent: In person

Heard at Manchester Civil Justice Centre on 13 July 2026

DECISION AND REASONS
1. We shall refer to the appellant as ‘the respondent’ and to the respondent as ‘the appellant’ as they respectively appeared before the First-tier Tribunal.
Background
2. The background to and issues arising in this appeal have been helpfully summarised by Upper Tribunal Judge Norton-Taylor when granting permission to appeal:
The respondent seeks permission to appeal against the decision of a First-tier Tribunal Judge who allowed the appellant’s appeal against the respondent’s refusal of a human rights claim.
4. The appellant is an Italian national, born in 1974, who came to the United Kingdom in 1978 and has remained here ever since. He was granted indefinite leave to remain on 9 December 2020. Prior to that he had accrued a number of convictions. However, the conviction and sentence which prompted deportation action on the respondent’s part was for possession with intent to supply Class A drugs. It appears to have been common ground that those offences were committed in December 2022, after Implementation Day (31 December 2020). The decision to make a deportation order was made 8 February 2023 and the deportation order itself was signed on 12 February 2024. In response to the stage 1 appellant made his human rights claim which was subsequently refused, leading to the appeal.
5. I have not seen any decision relating to the 2016 EEA Regulations.
6. It appears from [18] the judge’s decision that prior to the hearing the respondent took the position that the appellant’s appeal fell to be considered within the domestic legislative framework and not the 2016 Regulations. It appears as though that position changed at the hearing itself, although the judge stated that he would have applied the Regulations in any event.
7. Before turning to the pleaded grounds of appeal, and exercising appropriate caution, I raise an issue not identified in those grounds. In light of the series of events outlined above, and given recent case-law (specifically VDS (Deportation, conduct, IP Completion Date) [2026] UKUT 00152 (IAC) and Molnar and Vargova v SSHD [2026] EWCA Civ 31), it is not at all apparent to me why the appellant’s appeal was considered with reference to the 2016 Regulations and not simply Part 5A of the Nationality, Immigration and Asylum Act 2002. The decision to make a deportation order and the refusal of the human rights claim was, to my mind, predicated on the post-31 December 2020 offending.
8. Whether the appeal was determined on the correct legal basis is a matter which will need to be addressed by the parties in advance of the error of law hearing.
Setting aside the First-tier Tribunal’s Decision
3. At the initial hearing in Manchester, we heard submissions from the respondent’s representative, Ms Newton. The appellant appeared in person and was not legally represented. We sought to explain the legal position to him and invited him to tell us anything which he considered relevant to the respondent’s appeal and, later, the remaking of the decision. It appeared to us that the appellant understood that the decision in the First-tier Tribunal had, for the reasons given by Upper Tribunal Judge Norton-Taylor, been made on an erroneous legal basis and that the presenting officer before the First-tier Tribunal had wrongly given a concession which, in turn, appears to have led the judge to consider the appeal under the 2016 EEA Regulations which do not apply given the date of the appellant’s index offending. For the avoidance of doubt, the correct legal position is that now stated unequivocally in the cases cited by Upper Tribunal Judge Norton-Taylor in his grant of permission (see above). In the light of that jurisprudence, the application of the 2016 Regulations by the parties and by the judge was unequivocally wrong in law.
4. Given the error of law in the First-tier Tribunal’s decision, we consider that it is in the interests of justice that the respondent shall be given permission to amend her grounds of appeal as detailed by response to directions of Senior Presenting Officer Ms Simbi dated 15 May 2026. The amended grounds of appeal seek inter alia to withdraw the erroneous concession given by the presenting officer before the First-tier Tribunal.
5. We find therefore that the decision of the First-tier Tribunal should be set aside. The 2016 EEA Regulations did not apply in the appellant’s case which the First-tier Tribunal should instead have determined by reference to Part 5A of the Nationality, Immigration and Asylum Act 2002 (as amended). Since the respondent’s concession before the First-tier Tribunal was erroneous in matter of law, we find that the Secretary of State should not be bound by it.
6. Notwithstanding the Tribunal’s error in the application of the relevant legal provisions, we find that the judge’s findings of fact at [15-16] are not compromised and we preserve those findings accordingly:
15. I find that on the evidence before me the Appellant is a recidivist criminal offender who has over many of his adult years committed acquisitive criminal offences, in all likelihood primarily to provide funds for a controlled drug habit. There is clear evidence that the Appellant has troubled the Police for many years as he has committed these acquisitive offences, and it is trite to note that persistent thieves and shoplifters such as the Appellant has been for much of his adult life, are more than a nuisance in society. They cause loss and expense to the loser, take up time of the Police and Court Service, and resources of agencies engaged to assist with non-custodial disposals aimed at assisting them to address the core reason for their offending, in this case a drug dependency. I find that there is little evidence in the documents before me that the Appellant’s criminal activity has been for profit, rather the sentencing remarks from the index offence show that the Appellant remains a victim of his own dependency and was in thrall to others further up the drugs chain, and he was frightened of them.
16. I find that he has family in the UK and that there are connections with family members and that he enjoys a family life but there are no distinguishing features to the family life which he enjoys in the UK over and above those of any other person. There is nothing exceptional about the relationships and there is some evidence that the Appellant’s criminal offending and personal life has detrimentally affected his life with his children.
Remaking the Decision
7. We have proceeded to remake the decision. The appropriate legal framework is that contained in sections 117B and 117C of the 2002 Act, the appellant being a foreign criminal for the purposes of that Act having been sentenced to a period of imprisonment in excess of 12 months (for the index offence, the appellant was sentenced to 28 months’ imprisonment on 7 December 2022). We have below omitted those parts of the statute which are not relevant to the appellant who, on the evidence, before us, has no partner or minor children in the jurisdiction and was sentenced to a period of imprisonment of less than 4 years:
117B: public interest considerations applicable in all cases
(1) The maintenance of effective immigration controls is in the public interest.
(2) It is in the public interest, and in particular in the interests of the economic well-being of the United Kingdom, that persons who seek to enter or remain in the United Kingdom are able to speak English, because persons who can speak English—
(a) are less of a burden on taxpayers, and
(b) are better able to integrate into society.
(3) It is in the public interest, and in particular in the interests of the economic well-being of the United Kingdom, that persons who seek to enter or remain in the United Kingdom are financially independent, because such persons—
(a) are not a burden on taxpayers, and
(b) are better able to integrate into society.
(4) Little weight should be given to—
a private life … that is established by a person at a time when the person is in the United Kingdom unlawfully and (5) Little weight should be given to a private life established by a person at a time when the person's immigration status is precarious.
….
The deportation of foreign criminals is in the public interest.
117C: additional considerations in cases involving foreign criminals
The more serious the offence committed by a foreign criminal, the greater is the public interest in deportation of the criminal.
In the case of a foreign criminal (“C”) who has not been sentenced to a period of imprisonment of four years or more, the public interest requires C's deportation unless Exception 1 or Exception 2 applies.
Exception 1 applies where—
C has been lawfully resident in the United Kingdom for most of C's life,
C is socially and culturally integrated in the United Kingdom, and
there would be very significant obstacles to C's integration into the country to which C is proposed to be deported.
…..
8. Applying the relevant law to the facts in this case, including the preserved findings of the First-tier Tribunal, we find that the appellant does not appear to be working so is likely to be a financial burden on the state. It is unclear whether the appellant has lived most of his life lawfully in the United Kingdom. He arrived in the United Kingdom as a 4 year old child in 1978 and we accept that he lived here since then. He is a citizen of a member country of the European Union (Italy) but, beyond that, we are not aware of any action he or his parents may have taken to regularise his immigration status. For the purposes of our analysis, we proceed on the basis that he has lived lawfully in the United Kingdom for most of his life. We find that he is integrated in the society of the United Kingdom (he speaks only English; he does not speak Italian) but note his repeated criminality. We consider that the appellant’s long residence in the United Kingdom should be given weight.
9. However, the appellant’s deportation is in the public interest given the length of his index prison sentence unless he can show very significant obstacles to his integration in Italian society (Exception 1). He told us that he does not know anybody in Italy which we accept. His criminality indicates a certain resourcefulness and there is no evidence that he suffers from any physical or mental illness which would render more difficult his integration in Italian society. On the evidence, whilst we accept that he would suffer significant inconvenience as a result of the move and would need to reorient himself in an unfamiliar society, we do not find that the appellant crosses the threshold of facing very significant obstacles if removed to Italy, which is a member state of the European Union and has a modern and comprehensive health and welfare system.
10. For the reasons, we have given, we find that this appeal should be dismissed.
Notice of Decision
The decision of the First-tier Tribunal is set aside. We have remade the decision. The appellant’s appeal is dismissed on human rights (Article 8 ECHR) grounds.

C. N. Lane
Judge of the Upper Tribunal
Immigration and Asylum Chamber
Dated: 22 July 2026