Tribunal decisions

The decision

IN THE UPPER TRIBUNAL
IMMIGRATION AND ASYLUM CHAMBER Case No: UI-2026-002488; UI-2026-002489
First-tier Tribunal No: HU/00782/2025
HU/56701/2025
EA/00842/2025
EU/60281/2025

THE IMMIGRATION ACTS

Decision & Reasons Issued:

On 22nd of September 2026

Before

UPPER TRIBUNAL JUDGE BLUM

Between

EDMIR LUKA
(NO ANONYMITY ORDER MADE)
Appellant
and

SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: Mr P Georget, counsel, instructed by Morgan Pearse Solicitors
For the Respondent: Ms J Isherwood, Senior Presenting Officer

Heard at Field House on 7 September 2026

DECISION AND REASONS

1. The appellant is a national of Italy born on 10 September 1985. He has obtained permission to appeal the decision of Judge of the First-tier Tribunal Zucker (the judge) dated 3 March 2026, following a hearing on 19 February 2026. The exact nature of the decision(s) that are the subject of this appeal are a matter of dispute. It is therefore necessary to set out the chronology of events in some detail.

Background

2. The appellant was born in Albania and claims he moved to Italy when he was 13 years old. He met his wife in Albania and, after getting married, they lived in Italy. They both obtained Italian citizenship. Their eldest daughter was born in Italy in 2018. The appellant claims to have entered the UK in March 2019 for work reasons and his wife and eldest daughter soon followed. Their 2nd daughter was born in the UK in 2020.

3. On 17 August 2020 the appellant made an application under the EU Settlement Scheme (EUSS) and was granted limited leave to remain on 17 August 2020, valid to 18 August 2025. The appellant’s wife and children were also granted limited leave to remain, and subsequently they obtained indefinite leave to remain.

4. On 30 October 2024 the appellant was convicted, on his plea, to possession of Class A drugs with intent to supply and sentenced to 30 months imprisonment.

5. On 13 November 2024 the appellant was served with a Notice of Decision to Deport him (dated 8 November 2024). The decision indicated that the appellant has a right of appeal under regulation 6 of the Immigration (Citizens’ Rights Appeals) (EU Exit) Regulations 2020 (the 2020 Regulations). The appellant did not appeal this decision within the prescribed time. Representations amounting to a human rights claim were made on the appellant’s behalf on 13 December 2024.

6. On 2 May 2025 the respondent refused the human rights claim and made a deportation order. The effect of the deportation order was to invalidate the leave previously enjoyed by the appellant (see s.5(1) of the Immigration Act 1971). On 12 May 2025 the appellant, who was legally represented, lodged an appeal with the First-tier Tribunal (IAC) (FtT) against the refusal of his human rights claim (ref: HU/56701/2025). Then on 22 May 2025 the appellant, via his solicitors, lodged an out-of-time notice of appeal against the decision dated 8 November 2024. The application was blank under the section ‘Grounds of Appeal’. Significantly, a preliminary decision by a FtT Legal Officer dated 9 July 2025 extended the time for lodging the appeal under the 2020 Regulations.

7. An Appellant’s Skeleton Argument (ASA) dated 15 February 2026 was filed and served on the appellant’s behalf. The ASA focused on the decision dated 2 May 2025 to make the deportation order and refuse the appellant’s human rights claim. There was no reference in the ASA to the challenge to the decision dated 8 November 2024 and no separate arguments were advanced in the ASA in respect of the grounds of challenge open to the appellant in respect of this decision (that the decision breaches any rights the appellant has under the EU Withdrawal Agreement, and/or that the decision was not in accordance with section 3(5) of the Immigration Act 1971 (where the respondent deems the deportation to be conducive to the public good)). The ASA was however headed with both appeal reference numbers (HU/00782/2025 and EA/00842/2025).

8. I should add for completeness that the appellant received an automatic extension of his pre-settled status on 24 June 2025. By this time the deportation order had been made and there was no leave that could have been extended, and indeed no leave of any kind could have been granted to the appellant. Mr Georget wisely acknowledged this at the ‘error of law’ hearing and made no further submissions in respect of this purported grant of further leave.

The FtT judge’s decision

9. The appellant was represented by counsel at the FtT hearing on 19 February 2026. At [15] of his decision the judge stated;

“Neither representative was able to explain to me how it was that these two appeals which had been linked, came to be so given that the papers on file in relation to both were identical in every material particular. It was not clear whether one of the appeals had lapsed or perhaps been withdrawn or struck out. However, it was agreed that because the papers in relation to both were identical, I would make one decision with reasons which would apply to both appeal numbers so that whichever was live (and if unusually both were still alive for some reason) this Decision and Reasons would be the decision with reasons.”

10. At [16] of his decision the judge noted the issues that were agreed between the parties. These were:

“(i) Would it be unduly harsh for the Appellant’s spouse or children to reside in Italy, were the Appellant to be removed (deported) to that country?

(ii) Would it be unduly harsh for the Appellant’s wife of children to remain in the United Kingdom were the Appellant to be removed (deported) to Italy?”

11. At [17], under the heading “Relevant Law”, the judge stated,

“Because the issues were agreed as set out above it is not necessary for me to make refence to any statutory provisions other than sections 117A-D of the Nationality, Immigration and Asylum Act 2002.”

12. Having refused an adjournment (an element of the judge’s decision not under challenge), the judge heard oral evidence from the appellant and his wife and then submissions from both representatives. The judge then set out his analysis of the evidence and his findings of fact.

13. Although the appellant and his wife both said they had not discussed what they would do as a family if the appellant were deported to Italy, the judge did not find this credible. The judge stated, at [29]:

“This is a family which has hanging over it the prospect of the Appellant being required to leave to United Kingdom which would clearly impact upon each member of the family including the Appellant’s mother (from whom I heard no evidence) and I am asked to accept that the options which face this family have not been discussed. The Appellant and his wife would have known, given the issues in this appeal, that they were likely to be asked at the hearing what each would do in the event of the Appellant’s removal. I do not accept that this was not discussed. The Appellant went on to tell me that neither he nor his wife had any family or support in Italy and that any family members his wife had were in Albania. He and his wife remain nationals of Albania in addition to their Italian nationality.”

14. The judge referred to the evidence from the headteacher of the school attended by his children, and he referred to the best interests of the children being a primary consideration. The judge found that the children were either both entitled to Italian citizenship or would be entitled to enter Italy because of their parents. The judge found the children were young and so would be able to learn a new language if necessary, that their schooling could continue in Italy and that there was no obstacle to them to entering Italy. In respect of an assertion by the appellant’s wife that the family would have nowhere to live the judge referred to funds that could be provided by the respondent to assist them getting started, and noted that the appellant could go to Italy first and secure employment and accommodation (the judge mentioned that he had not been provided with sufficient evidence that the appellant had explored what work might be available for him in Italy), as he did when he first came to the UK, and the family could follow. The judge noted, in any event, that the appellant and his family, as Italian citizens, would be entitled to support by the Italian state. The judge also noted that the appellant could speak Italian and that he first went to Italy when he was 12 or 13 years old.

15. The judge briefly noted that it was open to the appellant’s wife to remain in the UK with the children “should they so choose” and communicate electronically or visit the appellant in Italy. The judge then referred to the sentencing judge’s remarks, and concluded at [35]

“I find no sufficient reason to find that it would be unduly harsh for this Appellant to be deported. I find no sufficient basis to find that it would be unduly harsh upon his family were he to be deported (whether they were to follow him or remain). The offences of which he was convicted were serious…. “

16. The judge dismissed the appeals. I note that both reference number were included in top righthand side of the judge’s decision, and under the heading ‘Notice of Decision’ the judge stated:

“The Appeal (and each of them) dismissed [sic]. As I have dismissed the appeal I make no fee award.”

The grounds of appeal and the grant of permission

17. The grounds contend that the judge failed to consider the appeal under regulation 6 of the 2020 Regulations. As there were two separate decisions under appeal this required two separate decisions, and the failure to make two separate decisions prejudiced the appellant’s rights under regulation 6 (although it was not explained how the appellant’s rights were prejudiced). The grounds noted that it was unclear to the judge whether he had two appeals before him, that time had been extended to allow the appellant to lodge his late appeal under the 2020 Regulations, and that the solicitors could have been contacted if there was an issue with this.

18. The grounds then said the judge was right to note that the live issues in the appeal related to whether the refusal of the human rights claim resulted in undue harshness to the appellant’s wife and/or his children. There was no express reference in the grounds of appeal to the statutory grounds of appeal under the 2020 Regulations. It is also of some note that the grounds appear to confirm the nature of the “live issues” before the judge.

19. The grounds then contend that the judge failed to consider whether it would be unduly harsh on the wife and/or children if they were to remain in the UK as it was “not clear” from the decision that they would relocate to Italy and they were not bound to do so. The grounds finally contended that it was not open to the judge to find it incredible that the appellant and his wife had not discussed what the family would do if the appellant was deported.

20. Permission to appeal was granted by the Upper Tribunal in the following terms:

It is arguable the judge failed to consider the appellant’s right of appeal (regulation 6) and grounds of appeal (regulation 8) under the Immigration (Citizen’s Rights Appeals) (EU Exit) Regulations 2020.

It is arguable the judge failed to take into account the appellant’s grant of leave to remain under the EU Settlement Scheme until 16 August 2030 and he failed to consider whether the decision of 13 November 2024 breached the appellant’s rights under the Withdrawal Agreement or whether it was not in accordance with Section 3(5) or (6).

The challenge to the appellant’s human rights appeal has less merit. The grounds fail to identify evidence which was before the judge capable of supporting a finding that it would be unduly harsh for the children to remain in the UK if the appellant was deported.

21. Despite the reservations in respect of the human rights appeal, permission was granted on all grounds.

22. I have considered the submissions made by both Mr Georget (representing the appellant) and Ms Isherwood (representing the respondent) at the ‘error of law’ hearing. In broad summary, Mr Georget drew my attention to the late application to lodge the appellant’s appeal against the decision dated 8 November 20204 (but served on 13 November 2024) and the decision by a Legal Officer of the FtT to extend time, that the grounds of appeal in the late application were left blank, and that there was nothing in the ASA relating to the appeal under the 2020 Regulations. Mr Georget nevertheless submitted that it was incumbent on the judge to consider the grounds of appeal under regulation 8 of the 2020 Regulations in order to resolve the appeal. there was no evidence that the appeal under the 2020 Regulations lapsed or were withdrawn or struck out, and, as the Supreme Court had granted permission to appeal in Vargova (Appellant) v SSHD (UKSC/2026/0053), it was arguable that the respondent should have considered whether the appellant’s deportation was proportionate under EU law even though his offence was committed after 31 December 2020. In respect of the remaining grounds Mr Georget submitted that the judge should have dealt with the ‘stay’ scenario (i.e. whether it would be unduly harsh on the appellant’s wife and children if they remained in the UK and he was deported) as the focus of the appeal was on a real-world situation and it was important to ascertain whether the wife and children would actually go to Italy. Mr Georget relied on the grounds relating to the judge’s factual finding concerning whether the appellant and his wife discussed what would happen if he were deported to Italy. In his response to Ms Isherwood’s submission, Mr Georget made a formal application to amend the grounds of appeal to contend that the judge failed to properly apply the ‘unduly harsh’ test by taking into account the appellant’s criminality (by reference to [32] of the decision).

23. Ms Isherwood submitted that there were no written grounds relating to the appeal under the 2020 Regulations and that there was no objection to the judge’s approach at the hearing that his decision would cover both appeals. The onus was on the parties to identify the material issues in dispute and there were no arguments made by the appellant in respect of the statutory grounds of appeal under the 2020 Regulations. The judge therefore effectively dealt with both appeals on the basis upon which they were advanced by the parties. In respect of the remaining grounds Ms Isherwood submitted that the determination had to be read as a whole and that the judge was entitled to focus his attention on the ‘go’ scenario (i.e. whether it would be unduly harsh on the appellant’s wife and children if they relocate to Italy with the appellant).

Discussion

24. The grounds of appeal contend that the judge failed to resolve the appeal before him under the 2020 Regulations. It is not apparent from the decision that the judge (or indeed the respondent) was aware that there had been an extension of time to enable the appellant to appeal to the November 2024 decision to make a deportation order against him. On close inspection however of the decision it becomes apparent that the judge was aware that he had two appeals before him, or, at the very least, that he believed he may have two appeals before him. I have set out at paragraphs 9, 10 and 16 above extracts from the judge’s decision in which he considered, having sought assistance from the representatives, whether there were two appeals before him. It is apparent from the extracts that the judge was cognisant of the two separate appeal references, and that he obtained assistance from the parties as to the scope of the appeals before him. It was specifically agreed by the representatives that the papers in both appeals were identical and that the judge would make a single decision that would apply to both appeals.

25. The appellant was represented in the FtT by solicitors and experienced counsel. The judge engaged with the appeal on the basis advanced by the appellant’s legal representatives. Whilst the statutory grounds of appeal under regulation 8 of the 2020 Regulations are that (1) the decision breaches any right the appellant has under the relevant part of the withdrawal Agreement, and (2) that the decision is not in accordance with section 3(5) or 3(6) of the Immigration Act 1971, the appellant’s legal representatives chose not to argue either of these grounds. As stated above, there were no details of any kind under the section ‘Grounds of Appeal’ in the application to lodge the appeal under the 20202 Regulations out of time, and at no stage was any reference made to the statutory grounds in regulation 8, either in the ASA or at the hearing.

26. The judge cannot be said to have erred in law by failing to resolve the statutory grounds of appeal in an appeal under the 2020 Regulations in circumstances where the appellant’s legal representatives did not seek to argue that either of the two relevant statutory grounds were made out.

27. The headnote in Lata (FTT: principal controversial issues) [2023] UKUT 00163; [2023] Imm AR 1416 (‘Lata’) reads:

“1. The parties are under a duty to provide the First-tier Tribunal with relevant information as to the circumstances of the case, and this necessitates constructive engagement with the First-tier Tribunal to permit it to lawfully and properly exercise its role. The parties are therefore required to engage in the process of defining and narrowing the issues in dispute, being mindful of their obligations to the First-tier Tribunal.
2. Upon the parties engaging in filing and serving a focused Appeal Skeleton Argument and review, a judge sitting in the First-tier Tribunal can properly expect clarity as to the remaining issues between the parties by the date of the substantive hearing.
3. The reformed appeal procedures are specifically designed to ensure that the parties identify the issues, and they are comprehensively addressed before the First-tier Tribunal, not that proceedings before the IAC are some form of rolling reconsideration by either party of its position.
4. It is a misconception that it is sufficient for a party to be silent upon, or not make an express consideration as to, an issue for a burden to then be placed upon a judge to consider all potential issues that may favourably arise, even if not expressly relied upon. The reformed appeal procedures that now operate in the First-tier Tribunal have been established to ensure that a judge is not required to trawl though the papers to identify what issues are to be addressed. The task of a judge is to deal with the issues that the parties have identified.
5. Whilst the Devaseelan guidelines establish the starting point in certain appeals, they do not require a judge to consider all issues that previously arose and to decide their relevance to the appeal before them. A duty falls upon the parties to identify their respective cases. Part of that process, in cases where there have been prior decisions, will be, where relevant, for the parties to identify those aspects of earlier decisions which are the starting point for the current appeal and why.
6. The application of anxious scrutiny is not an excuse for the failure of a party to identify those issues which are the principal controversial issues in the case.
7. Unless a point was one which was Robinson obvious, a judge's decision cannot be alleged to contain an error of law on the basis that a judge failed to take account of a point that was never raised for their consideration as an issue in an appeal. Such an approach would undermine the principles clearly laid out in the Procedure Rules.
8. A party that fails to identify an issue before the First-tier Tribunal is unlikely to have a good ground of appeal before the Upper Tribunal.”

28. The decision and principles in Lata have been endorsed by the Court of Appeal: see AL v SSHD [2026] EWCA Civ 370: see [6], [71-83]. At [89] Elizabeth Laing LJ (with whom the President of the Family Division and Holgate LJ agreed) summarised the position as follows:

“It is clear from Lata that it is an appellant’s responsibility to put all her arguments before the FtT. It is her duty to identify the points which the FtT is required to resolve in order to decide the appeal. The UT in Lata described those as ‘the principal controversial issues’. That formula is often used in public law to define the duty of a tribunal or other decision-maker to give reasons … . There is therefore a deliberate symmetry, on the reasoning in Lata, between the parties’ duty to identify the main issues for the FtT, and the FtT’s duty to explain what it has made of those issues. The FtT must decide those issues, and give reasons for its decision on them. But the FtT can only decide them, and is only obliged to decide them, if the parties expressly identify them.”

29. The bundle of documents provided by the appellant for his appeal before the FtT contained both appeal references (HU/00782/2025 and EA/00842) and the appellant’s representatives must have been aware that the appeal was being advanced both under the Nationality, Immigration and Asylum Act 2002 and the 2020 Regulations, not least because they had applied for an extension of time to lodge a late appeal under the 2020 Regulations. The ASA, a document required to be filed to identify the principal controversial issues in dispute, indicated that there were two matters in issue – whether it would be unduly harsh on the appellant’s spouse and children to expect them to reside it Italy, and whether it would be unduly harsh to expect them to remain in the UK if the appellant was removed to Italy. No issue was raised as a matter of dispute between the parties or a matter that required resolution by the judge in respect of the statutory grounds in the 2020 Regulations. It was indeed agreed between the parties at the hearing that, as the papers in both appeals were identical, the judge would make one decision with reasons that applied to both appeal reference numbers.

30. In the absence of any particularisation under the ‘Grounds of Appeal’ section in respect of the application to lodge the appellant’s appeal under the 2020 Regulations out of time, and in the absence of any specific argument advanced on the appellant’s behalf by his legal representatives in respect of the grounds of appeal available under the 2020 Regulations, the judge was entitled to proceed on the basis agreed by both parties in respect of the principal controversial issues that required resolution and to dismiss both appeals.

31. I can deal briefly with the remaining settled grounds of appeal. The judge found that it would not be unduly harsh on the appellant’s wife and children for them to relocate to Italy (the ‘go’ scenario). No challenge had been made in respect of this finding, and none would have been available. The judge gave clear and cogent reasons for his conclusion (see above at [14]). As the judge found it would not be unduly harsh for the appellant’s family to go to Italy, there was no requirement for him to additionally consider whether it would be unduly harsh for the appellant’s family to remain in the UK if he were deported (the ‘remain’ scenario). It is a matter of choice whether the appellant’s family decide to actually relocate. The possibility that the family may choose to be separated in circumstances where it would not be unduly harsh for them to join the appellant in Italy does not render the judge’s decision even arguably erroneous in law.

32. Nor is there any merit at all in the challenge to the judge’s expressed disbelief that the appellant and his wife would not have discussed what would happen if he was deported to Italy. I have set out the judge’s reasoning at paragraph 13 above of this decision. The reasons given by the clear are clearly reasoned and coherent. The grounds challenging this finding amounts to nothing more than a disagreement with a conclusion reasonably open to the judge on the evidence before him and for the reasons given.

33. I do not consider it appropriate to extend time to allow Mr Georget to amend the grounds of appeal.

34. Applying the 3-stage approach identified in R (Hysaj) v SSHD [2014] EWCA Civ 1633, SSHD v SS (Congo) [2015] EWCA Civ 387and Denton v. TH White Ltd [2014] EWCA Civ 906, I am satisfied there has been a significant delay in the application to amend the grounds of appeal. The decision under appeal was promulgated on 3 March 2026. The amendment sought by Mr Georget could have been identified in the application for permission to appeal lodged with the FtT on 17 March 2026, and then again with the renewed application lodged with the Upper Tribunal on 12 May 2026. It was however not until the Mr Georget’s response to Ms Isherwood’s submissions at the ‘error of law’ hearing that the application was finally made. The delay is significant. Secondly, I must consider where there are good reasons for the delay. Mr Georget was unable to offer any reasons, let alone a good reason, whey the application to amend the grounds was only made during the ‘error of law’ hearing. Third, I must consider all of the circumstances in the round. The application to amend the grounds was submitted significantly late and without good reason. Whilst I accept that the appeal is of importance to the appellant and his family, I am not persuaded that the amendment advanced is meritorious (see below), and, I am not satisfied that the importance of the appeal to the appellant is sufficient to outweigh the importance of the rules being complied with in a jurisdiction where the Court of Appeal has emphasised the importance of procedural rigour: see, for example, Talpada, R (On the Application Of) v SSHD [2018] EWCA Civ 841. I therefore refuse to grant the application to amend the grounds.

35. I have, in any event, considered the merit of the proposed amendment. The judge correctly referred to relevant authorities on the ‘undue harshness’ test at [18] to [20] and then considered the ‘go’ scenario at [28] to [32] of his decision. At no part of this analysis does the judge mention the appellant’s criminality. At [35] the judge deals with the issue of undue harshness before he refers to the appellant’s criminality, suggesting that they were separate considerations. Whilst the decision could have been better structured, I am not persuaded that the judge impermissibly took into account the appellant’s criminality when applying the undue harshness test.

Notice of Decision

The appellant’s appeal is dismissed

D. Blum

Judge of the Upper Tribunal
Immigration and Asylum Chamber

18 September 2026