Tribunal decisions

The decision

IN THE UPPER TRIBUNAL
IMMIGRATION AND ASYLUM CHAMBER Case No: UI-2026-001836
First-tier Tribunal No: DA/00007/2024

THE IMMIGRATION ACTS

Decision & Reasons Issued:
On 13 October 2026

Before

UPPER TRIBUNAL JUDGE BLUNDELL

Between

THE SECRETARY OF STATE
FOR THE HOME DEPARTMENT
Appellant
and

VAC
Respondent

Representation:
For the Appellant: Mr Kevin Ojo, Senior Presenting Officer
For the Respondent: Ms Althea Radford of counsel, instructed by Turpin Miller LLP

Heard at Field House on 26 August 2026

Order Regarding Anonymity

Pursuant to rule 14 of the Tribunal Procedure (Upper Tribunal) Rules 2008, the appellant is granted anonymity. No-one shall publish or reveal any information, including the name or address of the appellant, likely to lead members of the public to identify the appellant. Failure to comply with this order could amount to a contempt of court.

DECISION AND REASONS
Summary
1. The appellant is a Brazilian national who has permission to stay in the United Kingdom under the EU Settlement Scheme. The Secretary of State sought to deport her from the United Kingdom because she had been convicted of being involved in a substantial conspiracy to supply drugs, for which she was sentenced to six years’ imprisonment. On appeal to the First-tier Tribunal, the judge concluded that the appellant did not represent a genuine, present and sufficiently serious threat to the fundamental interests of the United Kingdom, and allowed her appeal accordingly. The Secretary of State submitted on appeal to the Upper Tribunal that the judge erred in law in assessing the risk of the appellant offending in the future. For the reasons set out below, however, the Upper Tribunal finds that the First-tier Tribunal did not err in law in reaching that conclusion. The Upper Tribunal is consequently required (by s12 of the Tribunals, Courts and Enforcement Act 2007) to dismiss the Secretary of State’s appeal and to uphold the decision of the First-tier Tribunal.
Introduction
2. The Secretary of State for the Home Department appeals with the permission of Upper Tribunal Bruce against the decision of a First-tier Tribunal Judge (“the judge”). By her decision of 24 February 2026, the judge allowed VAC’s appeal against the Secretary of State’s decision to deport her from the United Kingdom under Part 4 of the Immigration (European Economic Area) Regulations 2016.
3. To avoid confusion, I will refer to the parties as they were before the First-tier Tribunal: VAC as the appellant and the Secretary of State as the respondent.
4. Anonymity was ordered by the First-tier Tribunal on account of the fact that the appellant was at that stage pursuing a claim under the Refugee Convention. That limb of the appeal was dismissed by the FtT, however, and no appeal against that conclusion was pursued to the Upper Tribunal. Ms Radford nevertheless submitted that the order should remain in force for a different reason, which was that the appellant had been accepted (on conclusive grounds) to be a victim of forced prostitution and was entitled, as such, to lifelong anonymity under s2(1)(db) of the Sexual Offences (Amendment) Act 1992. I accept that submission and order accordingly. Like the judge below, I have also anonymised the identity of the appellant’s co-defendant. I have done so not to protect his identity but to ensure that the appellant cannot be identified by way of “jigsaw identification”.
Background
5. The appellant is a Brazilian national who was born in 1991. She arrived in the United Kingdom in 2016 and was granted leave to enter as a visitor. At some point, she returned to Brazil and then came back to the UK. In December 2019 she married an Italian national and in June 2020 she was granted five years’ limited leave to remain under the EU Settlement Scheme. On 25 March 2025, she applied for and was granted a further five years’ leave under that scheme, until 26 June 2030.
6. Meanwhile, on 7 May 2021, the appellant was convicted at Southwark Crown Court of being involved in a conspiracy to supply drugs of class A and B between 11 April 2020 and 22 February 2021. She was ordered to serve a total sentence of six years’ imprisonment. The principal of the operation, “DL”, received a sentence of 18 years’ imprisonment for selling drugs on both a “wholesale” and “retail” basis. The sentencing judge, HHJ Perrins, accepted that the appellant had had a significant role in the retail side of DL’s operation. He said that the appellant had an operational or management function within the conspiracy, in that she managed the distribution centres, packaged drugs, and organised the deliveries. She had also been responsible for renting premises.
7. The respondent served the appellant with notice of intention to make a deportation order in January 2022. She did not respond. In November 2022, following a referral the previous month, the respondent accepted that there were reasonable grounds on which to conclude that the appellant was a victim of trafficking. On 19 September 2023, it was accepted that there were conclusive grounds to accept that the appellant had been subjected to forced prostitution in various parts of London between 2016 and 2020. She was refused leave to remain as a victim of trafficking on 3 October 2023. On 17 January 2024, the respondent made a decision to deport the appellant to Brazil, under the EEA Regulations. The appellant then made a protection claim which was refused in a supplementary decision dated 30 July 2025.
8. The appellant appealed to the First-tier Tribunal against both decisions. The appeal was heard by the judge, sitting at Hatton Cross, on 11 February 2026. The appellant was represented by Ms Radford, as she was before me. The respondent was represented by Ms Sandal, a Presenting Officer. The judge heard oral evidence from the appellant and submissions from the representatives before reserving her decision.
The Decision of the First-tier Tribunal
9. The judge’s decision spans fifteen pages of single-spaced type and what follows is merely an outline of a carefully structured determination.
10. Having set out the background and dealt with the question of anonymity, the judge recorded at [8] that she had treated the appellant as a vulnerable witness and had made reasonable adjustments accordingly.
11. At [9]-[28], under the sub-heading “The EU Appeal”, the judge considered the appellant’s case under the 2016 Regulations, as it was common ground that those regulations continued to apply because the appellant’s offending began before 31 December 2020. It was also common ground, as the judge recorded at [10], that the appellant was entitled to the basic level of protection under those regulations. The judge set out regulation 27(5) of the 2016 Regulations at [11]. At [12] and [13], the judge mentioned some trite principles on the test to be applied. The second of those principles was attributed to the decision of the Court of Appeal in BF (Portugal) v SSHD [2009] EWCA Civ 923, which the judge summarised in this way:
the Court of Appeal identified that the Tribunal had to determine what was the relevant personal conduct of the offender. Having determined that question, it had to decide whether that conduct represented a genuine, present and sufficiently serious threat and, if so, whether that threat affected one of the fundamental interests of society. It also had to consider whether the deportation of the respondent would be disproportionate in all the circumstances.
12. At [14], the judge considered (in more detail than I have set out above) the details of the drug supply conspiracy and the way in which the appellant had been involved in it. She set out some of HHJ Perrin’s sentencing remarks at [15]. At [16]-[17], the judge made reference to what was said by the European Court in Land Baden Baden-Württemberg v Tsakouridis (C-145/09); [2011] 2 CMLR 11 about the threat posed by drug trafficking to the legal economy, stability and security of Member States. The judge concluded, having cited those remarks, that at the time of the appellant’s offending, her conduct represented a genuine and sufficiently serious threat to the fundamental interests of society: [18]. In the same paragraph, she directed herself to consider “whether that threat is present at the date of the hearing”.
13. At [20]-[28] of her decision, the judge considered a number of items of evidence which informed the assessment of the risk posed by the appellant at the date of the hearing. That included an OASys report dated January 2023; evidence of the appellant’s behaviour in prison and following her release on licence; and written evidence from her Probation Service Officer dated July 2024 and September 2025. The judge drew the following conclusions from that evidence at [27]-[28]:
[27] Despite these risk factors being present, the appellant has still not reoffended. I find that to be important evidence of her rehabilitation. The refusal decision states that the lack of evidence that the appellant has improved her personal circumstances leads to a reasonable conclusion the risk of her re-offending remains. I do not find that to be the present position. The appellant remains at the low risk of reoffending identified by the probation officer. Despite the challenges she has faced since her release from prison, she has not re-offended. It could be considered that it more difficult to demonstrate that where circumstances have not been easy. She has addressed the issues relating to education and employability. I have also noted from the report of Dr Preston that the appellant’s substance dependence disorder met the criteria for sustained full remission. Additionally, the appellant gave evidence at the hearing that she has been contacted by TL since her release from prison. He is also out of prison. She asked him not to contact her as there is a court order that she should not contact him. TL wanted her to work for him again and tried to persuade her, saying that she did not need to be scared and they just needed to be more clever. She said no as she did not want to get into trouble again. He has tried twice, the last time was in December 2025, but she has ignored him. I take the point made on behalf of the respondent that the temptation is still there for the appellant to reoffend, but in practice the outcome was that the appellant resisted any temptation to do so, making clear that she intended to comply with the order of the court not to contact him and also to remain out of trouble. She has rectified the lifestyle and associations that lead her into offending.
[28] In Tsakouridis it was further stated that the requirement is to focus on the individual’s present and future risk to the public, rather than purely on the seriousness of the individual's offending. I have taken account of the seriousness of the appellant’s offending. I have also taken account of her behaviour and attitude during her custodial sentence and since her release. The criteria requires that 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. I am not satisfied that the respondent has established that the appellant presents a genuine, present and sufficiently serious threat to meet the threshold for her removal.
14. The judge then considered and dismissed the appellant’s protection claim for reasons which she set out at [29]-[54]. There has been no appeal against that aspect of the judge’s decision and I need not summarise it. The same is true of the judge’s conclusions in relation to Articles 3, 4 and 8 of the ECHR at [55]-[65] of her decision.
The Appeal to the Upper Tribunal
15. The Secretary of State sought permission to appeal from the First-tier Tribunal. Since the judge is a salaried judge of the First-tier Tribunal, it was she who considered the initial application for permission to appeal, in accordance with the practice described in Bittar (PTA – FTT practice) [2025] UKUT 277 (IAC).
16. There were three grounds of appeal, which were in summary as follows. It was submitted, firstly, that the judge had failed to consider or apply Schedule 1 of the 2016 Regulations, which provided a list of mandatory considerations, the importance of which had been emphasised in SSHD v AA (Poland) [2024] EWCA Civ 18. It was submitted, secondly, that the judge had made material mistakes of fact in considering the appellant’s offending and the risk of future offending. Thirdly, it was submitted that the judge had erred in failing to consider the application of the principle in R v Bouchereau [1978] QB 732.
17. The judge refused the application, finding that the grounds represented disagreement with adequately reasoned conclusions. The respondent renewed her application for permission to appeal to the Upper Tribunal. It was submitted that the initial grounds were not properly categorised as disagreement.
18. UTJ Bruce granted permission to appeal on 18 May 2026. She observed that the grounds were “in many respects an attempt to re-argue the appeal.” She was however persuaded that it was arguable that the judge had overlooked the mandatory considerations in schedule 1 and that there may have been a misapprehension as to the facts. UTJ Bruce noted that there was nothing to suggest that the Bouchereau point had been made before the FtT, and that it would be “for the SSHD to make good any argument that it was.”
Submissions
19. Mr Ojo formally withdrew the Secretary of State’s third ground at the start of his submissions. He indicated that he had very little to say on the remaining grounds. In respect of the first ground, he recalled what had been said at [54]-[55] of SSHD v AA (Poland) about the way in which measures such as licence conditions were relevant to an assessment of risk. He reminded me that the sentence imposed on the appellant in this case was one of six years’ imprisonment. Schedule 1 of the 2016 Regulations required the FtT to have regard to the consideration in paragraph 3 of the schedule: “the longer the sentence … the greater the likelihood that the individual's continued presence in the United Kingdom represents a genuine, present and sufficiently serious threat”. The respondent did not dispute the positive aspects of the appellant’s behaviour but submitted that she was still under licence and was still a threat to the United Kingdom.
20. Ms Radford submitted that the first and second grounds disclosed no material error of law on the part of the judge. It was for the judge to assess what level of threat, if any, was posed by the appellant: Bonsignore v Oberstadtdirektor der Stadt Köln (C-67/74); and SSHD v Straszewski [2015] EWCA Civ 1245; [2016] 2 CMLR 3. The judge had clearly had the length of the appellant’s sentence well in mind. She had reasoned that the appellant’s conduct had, in the past, represented a genuine and present threat but she had given extensive reasons for concluding that the threat was no longer real and present. It was not incumbent on the judge to deal with every facet of every argument. SSHD v AA (Poland) concerned the proportionality assessment but in this case there was found to be no threat and that finding was dispositive. The judge was not required to forage for arguments in support of the respondent’s case.
21. The second ground was based on a misrepresentation of the judge’s reasons. The judge had noted at [24] that the appellant had “no issues with drugs until November 2020 when she started using crystal meth”. The Secretary of State represented that in the grounds as “she did not have any issues until November 2020”. The judge had understood the chronology very clearly and had understood in particular that the appellant had various “issues” before she became addicted to crystal meth in November 2020. The judge had not proceeded on a misapprehension of the facts and the principle in E & R v SSHD [2004] EWCA Civ 49; [2004] QB 1044 was of no application. Nor was there any identifiable error of fact in relation to the appellant’s ability to work legally at the time of her offending.
22. Ms Radford submitted that the grounds represented nothing more than a disagreement with the judge’s careful analysis of the risk posed by the applicant to the fundamental interests of the United Kingdom. As the judge had found, the considerable period after her release shed a good deal of light on her reform. She had worked diligently at a prestigious restaurant in London and had impressed her Probation Officer. Despite encountering various difficulties, she had not offended. The judge was entitled to conclude on the evidence before her that the appellant presented no risk despite her mental health problems. Ms Radford observed that the judge’s conclusion in relation to Article 8 ECHR appeared to be wrong in light of Abdullah & Ors (EEA, deportation appeals, procedure) [2024] UKUT 66 (IAC) but she accepted that the appellant had not raised the point by way of respondent’s notice in accordance with rule 24(1B) of the Tribunal Procedure (Upper Tribunal) Rules 2008.
23. Mr Ojo did not reply to Ms Radford’s submissions.
24. I indicated that the respondent’s appeal would be dismissed and that my reasons for that conclusion would be provided in writing. I acceded to Ms Radford’s request to maintain the anonymity order for the reasons I have set out above.
Analysis
25. The analysis which follows focuses on the Secretary of State’s first two grounds. As I have noted, the third ground was expressly abandoned by Mr Ojo at the outset of his submissions.
26. Before I turn to the Secretary of State’s grounds of appeal, I will make the following observations.
27. In a deportation case which is to be considered under the framework provided by Part 4 of the 2016 Regulations, a decision maker is required to consider whether the personal conduct of the person represents a genuine, present and sufficiently serious threat affecting one of the fundamental interests of society: regulation 27(5)(c) refers. Where that question is answered in favour of the putative deportee, their appeal falls to be allowed: MC (Essa principles recast) Portugal [2015] UKUT 520 (IAC); [2016] Imm AR 114.
28. The assessment is “forward-looking”, as the deportation of a person who falls within the scope of the Regulations may only be ordered for “breaches of the peace and public security which might be committed by the individual affected”: SSHD v Straszewski and Bonsignore refer. Those authorities also confirm that a decision maker may not (in the absence of R v Bouchereau considerations) factor into their assessment any need to deter other potential wrongdoers and to reflect public revulsion at the offence in question; there is “a need to look to the future” and to focus on the person conduct of the individual concerned.
29. The forward-looking risk assessment involves a holistic analysis of disparate pieces of evidence, both oral and documentary. The question posed by the 2016 Regulations, of whether a person poses a genuine, present and sufficiently serious threat to the fundamental interests of society, is one of fact. At [45] of SSHD v KD [2026] EWCA Civ 349; [2026] Imm AR 734, Peter Jackson LJ (with whom Arnold and Dove LJJ agreed) said that
A judge making an assessment of risk, in this or any other context, undoubtedly enjoys a great deal of latitude. Provided they sufficiently identify the main features of the evidence and weight them up in a broadly coherent way, the assessment will be secure on appeal.
30. That was said in the context of an assessment under s72 of the Nationality, Immigration and Asylum Act 2002 (viz. whether an asylum seeker presented a danger to the community of the United Kingdom) but the words “in this or any other context” indicate that what was said is of more general application. That is potentially unsurprising, with respect, given the numerous authorities in the Court of Appeal and Supreme Court which call for restraint on the part of appellate bodies which are invited to interfere with findings of fact made by specialist judges at first instance. I have in mind, but need not set out, the line of authority which includes AH (Sudan) v SSHD [2007] UKHL 49; [2008] 1 AC 678, Volpi v Volpi [2022] 4 WLR 48 and Ullah v SSHD [2024] EWCA Civ 201; [2024] 1 WLR 4055.
Ground One
31. By this ground, the Secretary of State contends that the judge failed to consider the list of factors set out at schedule 1 of the 2016 Regulations. Regulation 27(8) requires that a court or tribunal which is considering whether the requirements of that regulation are met must have regard to the considerations in that schedule.
32. The Secretary of State’s grounds of appeal cited parts of schedule 1 which were not relevant to the risk assessment which was undertaken by the judge. At paragraph (1)(b), the grounds of appeal referred to paragraph 7 of the schedule, which assists a decision maker in considering the meaning of “the fundamental interests of society” but the issue in this case was (unsurprisingly) not whether the supply of controlled drugs to members of the public would be contrary to the fundamental interests of society. The issue was, instead, whether the appellant represented a genuine, present and sufficiently serious threat of becoming involved in that heinous trade once again. By its terms, paragraph 7 was not relevant to that assessment.
33. The grounds of appeal also submitted that the judge had omitted “key proportionality factors” from her assessment. The grounds made reference to parts of the schedule which were designed to assist a decision maker in considering the level of a person’s integration to the United Kingdom and the proportionality of such a person’s removal or deportation. As I have already explained, however, it has been settled since MC (Portugal) that it is only if the personal conduct of the person concerned is found to represent a genuine, present and sufficiently serious threat affecting one of the fundamental interests of society that it becomes relevant to consider whether the decision is proportionate. The judge was therefore correct to treat her finding that the appellant did not pose a current risk of reoffending as determinative of the appeal, and it was not necessary for her to consider either the appellant’s level of integration or the proportionality of the decision.
34. No doubt in recognition of those difficulties, Mr Ojo submitted orally that the judge had erred in failing to have regard to only one paragraph of schedule 1, which he identified as paragraph 3. That provides as follows:
Where an EEA national or the family member of an EEA national has received a custodial sentence, or is a persistent offender, the longer the sentence, or the more numerous the convictions, the greater the likelihood that the individual’s continued presence in the United Kingdom represents a genuine, present and sufficiently serious threat affecting of the fundamental interests of society.
35. Mr Ojo submitted that the judge had failed to apply the principle that “the longer the sentence … the greater the likelihood that the individual’s continued presence in the United Kingdom represents a genuine, present and sufficiently serious threat”.
36. I do not accept that submission. The judge was plainly aware that the appellant had committed a serious offence and that she had received a lengthy custodial sentence. At [14]-[15], she took careful account of HHJ Perrins’ sentencing remarks and she made reference to the “extremely serious” offending and the “lengthy term of imprisonment of 6 years” at [14] and [15] of her decision. Whilst Mr Ojo is correct to assert that the judge made no reference there or elsewhere in her decision to schedule 1 of the 2016 Regulations, she clearly had the relevant principles in mind. She made an express finding that the appellant had previously represented a genuine, present and sufficiently serious threat but she went on to explain why she had concluded, despite the serious offending in the past, that the appellant no longer posed such a threat. In my judgment, nothing more was required of this specialist judge in considering this question of fact.
37. Mr Ojo also submitted that the judge had fallen into error in the manner considered in SSHD v AA (Poland). In order to consider that submission, it is necessary to say a little about the decision of the Court of Appeal in that case.
38. The Polish national in that case had committed serious sexual offences in the United Kingdom, including sexual offences against his own daughter. He received a total sentence of five years’ imprisonment, in addition to which he was subject to a “wide ranging” Sexual Harm Prevention Order (“SHPO”) for five years and he was made subject to the sex offender registration and notification requirements for 10 years and was liable to be placed on the barring list by the Disclosure and Barring Service.
39. The Secretary of State pursued deportation action against him. The FtT allowed his appeal, holding that his removal would breach his rights under the 2016 Regulations. That decision was upheld by the Upper Tribunal. The first issue before the Court of Appeal was whether the FtT had erred in law by misapplying the 2016 Regulations. One aspect of the appeal concerned the level of protection to which the appellant was entitled, and the reasoning process by which the judge had concluded that he was integrated to the UK despite his offending. I need not make reference to the way in which Warby LJ dealt with that issue, since it does not arise before me. Nor, for the same reason, is there any need to rehearse what was said by the Court of Appeal about proportionality or the human rights claim in that case.
40. The second issue, as Warby LJ set out at [30], was the level of threat which AA’s personal conduct represented. As Warby LJ said in that paragraph, the FtJ “addressed this question by reference to the OASys report and the protective measures imposed as part of AA’s sentence”. The FtT had rejected a submission – based on Restivo (EEA – prisoner transfer) [2016] UKUT 449 (IAC); [2017] Imm AR 188 – that those measures should be disregarded for this purpose, concluding that it only applied to the protection provided to society by the imprisonment of an offender. The Upper Tribunal found there to be no error of law in the FtT analysis: [38] of the Court of Appeal’s decision refers.
41. Before the Court of Appeal, the relevant submission made by the Secretary of State was that the FtT had erred in considering the level of threat posed by AA: [40](2). She submitted that it had been wrong to take account of the protective measures and to distinguish Restivo as applying only to incarceration, and that it had erred by discounting the risk identified in the OASys report by reference to matters that had already been taken into account in the OASys assessment. Warby LJ accepted these submissions for the reasons he gave at [54]-[59]. For present purposes, it suffices to cite only the reasoning at [55], which followed an analysis of the reasoning in Restivo:
In my view, Restivo was rightly decided on this point and the reasoning applies to the present case. Measures such as imprisonment, licence conditions on release, SHPOs, and notification requirements are all put in place because a person poses a threat to one of the fundamental interests of society. The existence of such measures is relevant because they involve a recognition of that threat and the need to prevent, manage, or mitigate it. But the preventative or mitigating effects that such measures may have are not themselves material to the question of what level of threat exists. The FtTJ's "real world" approach in this case therefore involved the same error as was perpetrated by the FtT in Restivo. The seriousness of the threat that AA's personal conduct represents should have been assessed without regard to the mitigating measures on which the FtTJ placed weight.
42. It was for that reason, and because the judge in the FtT had not appreciated that the OASys assessment “had been discounted to take account of the likelihood of compliance with protective or mitigating measures” that the court allowed the appeal on this ground of appeal.
43. The judge in this case clearly did not fall into the same error as the first instance judge in AA (Poland). Whilst the appellant remained on licence at the time of the hearing in the FtT, it was no part of the judge’s reasoning that any risk posed by the appellant was reduced for that reason. The judge noted at [25] that the appellant was said by her Probation Officer to be doing “exceptionally well” on her licence but the judge’s analysis of the risk posed by the appellant did not rest in any material part on the preventative or mitigating effect of her licence conditions. It rested, instead, on the demonstrable progress which the appellant had made since her release from prison and on the OASys assessment that she presented a low risk of reoffending. The judge would evidently have reached the same conclusion even if the appellant had not been on licence because her conclusion was based on the appellant’s abstinence from drugs, lack of further offences, her engagement in the labour market, and her demonstrable ability to “resist any temptation” to be drawn back into her former circles.
44. Mr Ojo seemed, at one point in his short submissions, to suggest that the mere fact that the appellant was (and is) on licence must indicate that she presents a genuine, present and sufficiently serious threat. That submission involved a misreading of the second sentence of Warby LJ’s [55], as reproduced above. What was said in that sentence was, with respect, conspicuously carefully expressed. Warby LJ did not suggest that the mere fact that a person is on licence demonstrates, without more, that they present a threat. It is necessarily a fact sensitive exercise. As part of that exercise, it might obviously be relevant that a sentencing judge has imposed specific “licence conditions on release” in order to manage any risks which might continue to exist, just as it might be relevant to consider whether the judge has imposed additional orders such as a Sexual Harm Prevention Order or a Serious Crime Prevention Order. But there was no evidence in this case to suggest that any such conditions had been imposed on the appellant’s licence, or that any such orders had been made. The end of HHJ Perrins’ sentencing remarks shows that consideration was to be given to the imposition of a SCPO on the appellant and DL but there is no evidence to show that he decided to take that course following the mention hearing which was provisionally listed for 29 April 2022. The mere fact that the appellant remained on licence at the time of the hearing before the FtT did not show that she represented a genuine, present and sufficiently serious threat to the fundamental interests of the United Kingdom.
45. It follows that ground one is not made out.
Ground Two
46. It will be noted that Mr Ojo did not seek to develop any of the submissions which were asserted in this ground of appeal, although he did not expressly abandon it. For her part, Ms Radford submitted that this ground represented a series of disagreements with the judge’s decision. I agree with her, for the following reasons.
47. The gravamen of the second ground is made clear by the emboldened words at the top of page 28 of the appeal bundle:
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 & Failing to give reasons or any adequate reasons for findings on material matters.
48. There are therefore two complaints: (i) that the judge made mistakes as to material facts and (ii) that the judge gave inadequate reasons for certain conclusions. It is now trite that a mistake of fact giving rise to unfairness is a separate head of challenge in an appeal on a point of law. That statement of the law was not without controversy when it was first said by Carnwath LJ at [66] of E & R v SSHD but nothing said in the intervening 22 years has cast doubt on what he said in giving the judgment of the court in that case.
49. The judge in this case is said to have made a number of “mistakes of fact”, which I will consider in turn.
50. The first “mistake”, as asserted at ground 2(b) is said to concern the cause of the appellant’s offending. The judge is said to have overlooked the fact that the appellant’s offending occurred between April 2020 and February 2021 and that the sentencing judge had said that the appellant’s offending was “financially motivated”. The judge also erred, according to this ground of appeal, by proceeding on the basis that the appellant had been unable to work lawfully at the time, since she had a pending application under the EUSS and would have been allowed to work.
51. There is nothing in any of these points. The appellant’s account was that she had been struggling financially during the pandemic and had accepted an offer to become involved in DL’s activities. Her circumstances had worsened in November 2020, at which point she became addicted to crystal meth, but that was not the original reason she had become involved. As Ms Radford submitted, the judge understood all of that very clearly, as is apparent from her reference to the OASys report at [24] of her decision. The judge noted in that paragraph that the appellant had originally offended to manage her day to day living costs but that from November 2020 she was offending in order to fund her drug use. The judge did not suggest that the appellant had “no issues” until November 2020; she said that the appellant had “no issues with drugs until November 2020 when she started using crystal meth.” The judge understood the origin of, and the motivation behind, the appellant’s offending. She understood the factual matrix in her assessment of the risk currently presented by the appellant.
52. The Secretary of State also takes issue with the judge’s observation in [24] that the appellant “was not able to work legally in the UK” when she became involved in DL’s operation. But the judge did not mean to suggest in that paragraph that the appellant was unable to secure legal employment in this country. Having read the papers, including the appellant’s statement and a detailed psychological assessment by Dr Preston (to which the judge referred at [27] and [46]-[48]) the judge would have been aware that the appellant was working as a hairdresser until the pandemic, at which point “the work stopped”. She then struggled to support herself and her husband: [68] of her statement refers, as did the Secretary of State’s conclusive grounds decision. This part of the grounds of appeal also establishes no mistake on the part of the judge, and does not “significantly undermine” her assessment, as was suggested at ground 2(b).
53. At ground 2(c), the respondent submits that the judge overlooked the fact that the appellant’s employment in the restaurant sector had come to an end by the time of the hearing, and that she was working as a cleaner. This is said by the Secretary of State to increase the appellant’s financial pressures and to render it more likely that she would seek to offend for financial reasons once more. The judge was clearly aware of the facts, however. She recorded that the appellant had left her employment at The Shard at [23], and she noted in the same paragraph that the appellant was undertaking cleaning work once more. If the respondent wished to suggest to the appellant that her circumstances rendered it more likely that she would re-offend for financial gain, she was entitled to do so at the hearing, where she was represented by a Presenting Officer. Ms Radford was present at that hearing and confirmed that no such argument was pursued. It is not now open to the respondent to submit that the judge should have considered arguments which were not put to her in adversarial proceedings such as these. What the respondent seeks to do is to re-argue the case on the basis of arguments which have occurred to her since the judge’s decision was issued. Such arguments are incapable of establishing a legal error in the decision of the judge; they merely amount to an attempt to relitigate the case.
54. I reach the same conclusion in respect of the next point taken by the respondent in this ground of appeal. The respondent submits at paragraph 2(d) of the grounds that the appellant’s mental health had declined after she had been released from prison and that she was, according to Dr Preston, at risk of “destabilisation” due to her current instability. The judge was evidently aware of this, since she made reference to it at [48] of her decision. But there is nothing before me to suggest that it was suggested to the appellant (or to the judge) that the appellant’s mental health at the time of the hearing rendered it more likely that she would return to offending. There is no “contradiction”, as the respondent seeks to assert in this paragraph of the grounds; the respondent has, in formulating the grounds of appeal, thought of points which could have been put to the appellant and the judge at the hearing. Again, that does not establish an error of law on the part of the judge, and it fails to respect Lewison LJ’s reminder, in Fage v Chobani [2014] EWCA Civ 5; [2014] ETMR 26, that “The trial is not a dress rehearsal. It is the first and last night of the show.”
55. At paragraph 2(e) of the grounds of appeal, the judge is said to have lost sight of the fact that the appellant will remain on licence until 23 February 2027 “so arguably her propensity to reoffend hasn’t been truly tested yet”. Whilst it is correct that the judge did not mention the date on which the appellant’s licence was due to end, she was evidently aware that the appellant remained on licence at the date of the hearing. The judge made reference to the appellant being on licence at [25] of her decision. Absent a submission, it was not incumbent on the judge to consider whether the appellant’s licence represented a brake on her offending behaviour. Again, the point is an afterthought which the author of the grounds might have deployed at the hearing, but it does not establish an error of law on the part of the judge, who was tasked with resolving the competing cases which were actually advanced before her.
56. That conclusion applies equally or possibly a fortiori to the next point taken by the Secretary of State. At paragraph 2(f) of the grounds, the respondent submits that there was no evidence before the judge to substantiate the appellant’s account that she had been approached by DL but had rejected his advances. It is said in this paragraph that there was no evidence of this, and that the judge should have scrutinised what appeared to be “a fabrication of evidence to garner praise”. Again, it was open to the respondent to suggest to the appellant at the hearing that she was lying about this aspect of her case, but there is no evidence to suggest that she did so. The judge cannot now be criticised for failing to doubt the appellant’s credibility on a basis which was not advanced at trial.
57. The respondent concludes this ground of appeal at paragraph 2(g), the language of which shows quite clearly that the challenge is mere disagreement:
(g) When taking her current circumstances into account, it is reasonable to assume that the appellant is susceptible to reoffending as she has not yet lived independently of the probation/prison services, her employment is unstable and her finances are likely strained. There is also an absence of any reliable support network available to her in the UK, with there being no evidence of private/family life (her relationship with her EEA citizen husband being said to have broken down some time ago), which further increases the chances of her returning to former friends and associates, such as TL, particularly if her mental health declines and her personal circumstances do not improve. Because of this, the FTTJ’s assessment of the appeal, and in particular that concerning proportionality, is submitted to be materially flawed.
58. That paragraph and the second ground of appeal as a whole represent nothing more than an attempt to re-argue the case by deploying arguments and alternative case theories which were not developed before the judge. The second ground fails by some margin to establish any mistake of fact or absence of reasons on the part of the judge. I therefore find that this ground is not made out.
Conclusion
59. In my judgment, the judge in the First-tier Tribunal reached a cogently reasoned and rational conclusion that the appellant did not present a genuine, present and sufficiently serious threat to the fundamental interests of the United Kingdom. The Secretary of State’s first and second grounds of appeal establish no legal error in that conclusion, which was determinative of the appeal. The third ground, as I have recorded was not pursued. It follows that the respondent’s appeal will be dismissed.
Notice of Decision
The Secretary of State’s appeal is dismissed. The First-tier Tribunal’s decision to allow the appeal shall stand.

Mark Blundell

Judge of the Upper Tribunal
Immigration and Asylum Chamber

9 September 2026