Tribunal decisions

The decision

IN THE UPPER TRIBUNAL
IMMIGRATION AND ASYLUM CHAMBER Case No: UI-2026-002669
First-tier Tribunal No: HU/00792/2025

THE IMMIGRATION ACTS

Decision & Reasons Issued:

On 30th of September 2026

Before

UPPER TRIBUNAL JUDGE LOUGHRAN

Between

MALICK JONES
(NO ANONYMITY ORDER MADE)
Appellant
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: Mr Georget, Counsel instructed by TMC Solicitors
For the Respondent: Mr Nappey, Senior Home Office Presenting Officer

Heard at Field House on 15 September 2026

DECISION AND REASONS
Introduction
1. The Appellant appeals with the permission of the Upper Tribunal Judge against the decision of the First-tier Tribunal Judge (“the Judge”), dated 28 January 2026.
Background
2. The Appellant is a Swedish national born on 24 October 2001. He appeals pursuant to the Immigration (European Economic Area) Regulations 2016 against the Respondent’s decision to make a deportation order dated 26 April 2024.
3. The Appellant claims to have first arrived in the UK in 2004. The Appellant accepts that he subsequently left the UK. There is conflicting evidence about when that was, for how long, and when he returned to the UK.
4. The Appellant’s mother was granted indefinite leave to remain on 31 July 2019.
5. The Appellant committed his index offences on 16 August 2018 and 8 October 2020. He was remanded into custody on 10 October 2020. On 7 September 2021, the Appellant was sentenced to a term of nine years’ imprisonment following convictions for robbery, causing grievous bodily harm with intent, and possession of a knife in a public place.
6. The Respondent served notice of a decision to deport on 31 January 2023. The stage two deportation decision was issued on 27 April 2024 and a deportation order was signed.
7. In the decision, the Respondent noted that in the application for indefinite leave to remain, the Appellant’s mother had demonstrated lawful residency in the UK from May 2012. The Respondent therefore accepted that the Appellant had been resident in the UK with his mother since 2012.
The Appeal to the First-tier Tribunal
8. The Appellant appealed pursuant to the Immigration Regulations 2016, and the appeal came before the Judge on 16 January 2026. The Appellant, his claimed partner, and his mother all gave evidence.
9. The Judge records that at the hearing, the Home Office Presenting Officer indicated that the Respondent’s position had changed and that the Respondent no longer accepted that the Appellant was present in the UK from 2012 to 2015. This was as a result of the further documentary evidence that the Appellant had provided following the Respondent’s decision. The Home Office Presenting Officer indicated that he intended to cross-examine the witnesses on that matter.
10. It does not appear as though the Appellant’s representative raised any objections to the concession being withdrawn or that they applied for an adjournment to consider the position.
11. At the hearing, it was the Appellant’s claim that he had continuous residence in the UK for a period of 10 years and that his deportation could only be taken on imperative grounds of public security. It was the Respondent’s position that the Appellant’s presence in the United Kingdom commenced in 2015, amounting at most to a continuous period of five years. Thus, it was argued that serious grounds of public policy and public security would be required in order to substantiate the Appellant’s deportation.
12. In a decision dated 28 January 2026, the Judge dismissed the Appellant’s appeal.
13. The Judge considered that he had no alternative to find that the Appellant was not resident in the UK between 2012 and 2015 because there was a “complete absence of any evidence to demonstrate the Appellant’s presence in the UK” during that period.
14. The Judge considered that the Appellant had only been continuously resident in the UK from 2015 and that he therefore did not meet the threshold required to rely on imperative grounds of public security in order to resist deportation.
15. The Judge concluded that the Appellant had a five-year period of continuous residence and the applicable standard was therefore whether there were serious grounds of public policy and public security which would justify deportation. The Judge concluded that there were serious grounds of public policy and public security which justified the Appellant’s deportation.
16. The Judge was not satisfied that the Appellant had established a private life in the UK. The Judge considered that the relationship between the Appellant and his mother was one between two adults which reflected the usual emotional bonds and there was no additional evidence before him about the relationship.
17. The Judge did not accept that the Appellant was in a genuine and subsisting relationship with his claimed partner and the Judge concluded that Article 8 was not engaged but, even if it was, any interference would not be disproportionate and would be justified as necessary for the prevention of disorder and crime, which was clearly in the public interest.
The Appeal to the Upper Tribunal
18. The Appellant appealed against the Judge’s decision. The First-tier Tribunal refused permission to appeal but it was granted by the Upper Tribunal on 9 June 2026.
19. The Respondent did not provide a response under rule 24 but she filed and served a skeleton argument opposing the appeal.
20. I heard submissions from Mr Georget on behalf of the Appellant and Mr Nappey on behalf of the Respondent. The Appellant’s mother also attended the hearing. The Appellant was not in attendance.
21. At the outset of the hearing Mr Georget made an application to amend his grounds to include a further ground of challenge, i.e. that the Judge had failed to have regard to relevant evidence, medical evidence corroborating the Appellant’s account that he had been in the UK between 2012 and 2015.
22. Mr Nappey opposed the application because it had not been raised in the initial grounds and because the Appellant’s representatives conceded at the hearing that the GP records indicated that the Appellant had ceased attending school and went abroad in 2012.
23. I note that the Appellant’s representative’s concession was only that he had ceased attending school and went abroad in 2012 and was not that he had been outside of the UK for the whole period of 2012 to 2015.
24. I heard the parties’ submissions on all the grounds of appeal, including the new ground the Appellant sought to rely on. Having done so, I indicated to the parties that I was satisfied it was in the interests of justice to grant the Appellant permission to amend his grounds.
25. I also indicated that I was satisfied that the Judge made a material error of law and that my reasons would follow in writing.
Discussion
Medical Records
26. The medical records that were before the First-tier Tribunal include the following relevant evidence:
(a) On 27 September 2006 it appears that the Appellant was registered at a GP surgery;
(b) There are references to the Appellant attending school in 2007 and 2008;
(c) There is a reference to the Appellant moving abroad in May 2012;
(d) On 8 January 2014 and 27 June 2014 there are records of the Appellant being examined at a GP surgery;
(e) On 8 August the records note UK entry date as 18 December 2013 and UK exit date as 3 May 2013.
27. I am satisfied that this evidence is relevant as to whether the Appellant was in the UK between 2012 and 2015.
28. The only aspect of this evidence that the Judge refers to in the decision is the Appellant’s representative’s acceptance that the GP records indicate that the Appellant stopped attending school and moved abroad in May 2012. It is not clear whether the Judge was taken to the rest of the evidence, which is unfortunate. However, I note that it was only raised at the hearing that the Respondent did not accept that the Appellant had been in the UK between 2012 and 2015.
29. I am satisfied that the Judge failed to have regard to clearly relevant evidence and that infects all the Judge’s findings in respect of how long the Appellant had been continuously resident in the UK.
Tsakouridis – Centre of Life Test
30. In Land Baden-Württemberg and Tsakouridis Case C-145/09 [2011] 2 CMLR 11 (“Tsakouridis”), the Court found the following:
33. The national authorities responsible for applying Article 28(3) of Directive 2004/38 are required to take all the relevant factors into consideration in each individual case, in particular the duration of each period of absence from the host Member State, the cumulative duration and the frequency of those absences, and the reasons why the person concerned left the host Member State. It must be ascertained whether those absences involve the transfer to another State of the centre of the personal, family or occupational interests of the person concerned.
[…]
38. In the light of the foregoing, the answer to Questions 2 to 4 is that Article 28(3)(a) of Directive 2004/38 must be interpreted as meaning that, in order to determine whether a Union citizen has resided in the host Member State for the 10 years preceding the expulsion decision, which is the decisive criterion for granting enhanced protection under that provision, all the relevant factors must be taken into account in each individual case, in particular the duration of each period of absence from the host Member State, the cumulative duration and the frequency of those absences, and the reasons why the person concerned left the host Member State, reasons which may establish whether those absences involve the transfer to another State of the centre of the personal, family or occupational interests of the person concerned.
31. The Appellant submits that the Judge failed to apply the centre of life test to the Appellant’s absences from the UK as required by Tsakouridis. The Appellant submits that this error is material in light of his circumstances, i.e. that he was in the UK before any absences from the UK.
32. The Respondent claims that the Judge was not required to apply the centre of life test because it was not an issue identified in the Appellant’s skeleton argument.
33. I am not persuaded by the Respondent’s submission. The Appellant’s skeleton argument was drafted before the hearing and therefore on the basis that the Respondent accepted that the Appellant had been continuously resident in the UK since 2012. The Respondent changed her position at the hearing.
34. At [21] the Judge found that they were left with no alternative to find that the Appellant was not resident in the United Kingdom during the period of 2012 to 2015. The Judge found that they were not able to determine with any certainty whether the Appellant and his family were in Gambia or elsewhere. The Judge makes no finding as to contact, if any, with the UK or any relatives or integration prior to that date or subsequent to that date. The Judge’s consideration is limited.
35. I am satisfied that the Judge did not apply the centre of life test and did not consider it at all. Having concluded that the Appellant was absent from the UK for a period of three years, I am satisfied that the Judge was obliged to do so.
Conclusion
36. I am satisfied that the errors infect the entire decision and it should be set aside with no findings of fact preserved.
Disposal
37. Applying AEB [2022] EWCA Civ 1512 and Begum (Remaking or remittal) Bangladesh [2023] UKUT 00046 (IAC), I have considered whether to retain the matter for remaking in the Upper Tribunal in line with the general principles set out in paragraph 7 of the Senior President’s Practice Statements. I am satisfied that it should be remitted to the First-tier Tribunal because the Judge failed to have regard to evidence that was before them and because significant findings of fact will need to be made.
38. Both parties agreed that this was the appropriate course of action in this case.
Notice of Decision
1. The decision of the First-tier Tribunal contains a material errors of law. Accordingly, it is set aside in its entirety with no findings of fact preserved.
2. The appeal is remitted to the First-tier Tribunal for a fresh hearing to be heard by a different Judge.

Judge Loughran

Judge of the Upper Tribunal
Immigration and Asylum Chamber

25 September 2026