Tribunal decisions

The decision

IN THE UPPER TRIBUNAL
IMMIGRATION AND ASYLUM CHAMBER Case No: UI-2026-004255
First-tier Tribunal No: EA/00522/2025

THE IMMIGRATION ACTS

Decision & Reasons Issued:

21st October 2026

Before

UPPER TRIBUNAL JUDGE HOFFMAN

Between

SECRETARY OF STATE FOR THE HOME DEPARTMENT
Appellant
and

TAULANT ILIEVA
(NO ANONYMITY ORDER MADE)
Respondent

Representation:
For the Appellant: Ms S Keerthy, Senior Home Office Presenting Officer
For the Respondent: Mr A Pipe of Counsel, instructed by Rashid Law Ltd

Heard at Field House on 19 October 2026

DECISION AND REASONS
1. The Secretary of State appeals, with permission, against the decision of First-tier Tribunal Judge Codd (“the judge”), promulgated on 24 June 2026, allowing Mr Ilieva’s appeal against the Secretary of State’s decision, dated 10 February 2025, notifying him of her intention to deport him on conducive grounds. The judge’s decision did not entitle the appellant to remain in the United Kingdom. Rather, it required the respondent to reconsider the matter and make a fresh decision in accordance with her published guidance.
2. While it is the Secretary of State who is the appellant in this matter, for consistency I will refer to the parties as they were before the First-tier Tribunal. Therefore, the Secretary of State will be referred to as the respondent and Mr Ilieva as the appellant.
Background
3. The appellant is a national of Albania, born on 12 July 1986. It is unclear when he first arrived in the United Kingdom. On 7 January 2020, he applied for leave to remain under the EU Settlement Scheme (“EUSS”). That application was granted on 30 June 2020, and he was granted leave to remain until 1 July 2025. On 20 October 2021, the appellant applied for indefinite leave to remain under the EUSS. That application was successful and, on 10 November 2024, he was granted settled status.
4. However, on 30 January 2025, the appellant was convicted of possession of a Class B drug (cannabis) with intent to supply and was sentenced to six months’ imprisonment.
5. Although the appellant’s sentence was not of sufficient length to engage the automatic deportation provisions in s.32 of the UK Borders Act 2007, on 10 February 2025 the respondent served a decision on him notifying him that she considered his deportation to be conducive to the public good pursuant to s.3(5) of the Immigration Act 1971 (“the Stage 1 decision”). The appellant was also served with a s.120 one-stop notice, requiring him to provide, within 28 days, any reasons why he should not be deported. At the hearing before me, Mr Pipe informed me that the appellant did make such representations and that those representations have since been considered in a Stage 2 decision. The appellant’s human rights appeal against the Stage 2 decision is currently pending before the First-tier Tribunal.
The appeal to the First-tier Tribunal
6. The appellant exercised his right of appeal against the Stage 1 decision under regulation 6 of the Immigration (Citizens’ Rights Appeals) (EU Exit) Regulations 2020. The appeal was brought on the ground set out in regulation 8(3)(d), namely that the decision was not in accordance with s.3(5) or (6) of the Immigration Act 1971 (“the 1971 Act”).
7. The appeal came before the First-tier Tribunal on 22 June 2026. As recorded at [17] of the decision, the parties were agreed that the judge’s task was to conduct a public law review of the respondent’s decision-making process, rather than a merits review of the Stage 1 decision: see headnote 5 of Vargova (EU national; post 31 December 2020 offending: deportation) [2024] UKUT 00336 (IAC).
8. At [18], the judge noted that he had been referred to the Home Office guidance, Deportation on conducive grounds: Immigration Act 1971 and UK Borders Act 2007, published on 22 March 2026 (“the Guidance”). He further observed that neither party had provided a copy of the version of the Guidance in force at the date of the Stage 1 decision and that he had been unable to locate the earlier version in the publicly accessible archive.
9. At [32], the judge concluded that the respondent’s decision was “incredibly brief” and that, in determining that the appellant met the criteria for deportation on conducive grounds, the respondent had failed properly to apply her own Guidance. In particular, the respondent had not addressed matters such as the nature of the appellant’s offending, the sentencing remarks, the reasons why the offending was said to have caused serious harm to the public, the significance of the appellant’s residence in the United Kingdom, or his relationship with his partner and child.
10. At [33], the judge found that the only factor considered by the respondent was the appellant’s conviction for a drug offence. The judge held that the respondent had therefore failed to demonstrate how she had exercised her discretion under s.3(5) of the 1971 Act to reach the conclusion that the nature of the appellant’s offending rendered his deportation conducive to the public good. The appeal was accordingly allowed on that limited basis. At [35], the judge emphasised that it remained open to the respondent to remake the Stage 1 decision and issue a “compliant decision” and that, consequently, this “may well not be the end of the deportation process” for the appellant.
The appeal to the Upper Tribunal
11. The respondent sought permission to appeal to the Upper Tribunal on the four grounds:
(1) The judge materially erred in law by determining the appeal by reference to Home Office guidance not been shown to have been in force at the date of decision.

(2) The judge misdirected himself as to the scope of a Stage 1 appeal and also conducted an impermissible merits review.

(3) The judge failed to give adequate reasons for concluding that the respondent had acted unlawfully.

(4) The judge erred in treating the absence of express references to particular matters as evidence that those matters had not been considered.
12. Permission to appeal was granted by First-tier Tribunal Judge V Davies on 30 July 2026. Judge Davies considered Ground 1 to be arguable, observing that Judge Codd’s findings concerning the Guidance “do not appear to have been supported by evidence of the Home Office policy and guidance in force at the time of the relevant Decision”. Judge Davies also found Ground 2 to be arguable. While it can be inferred that she was less convinced by the remaining grounds, she did not limit the grant of permission.
The hearing
Preliminary issue regarding the Guidance
13. At the outset of the hearing, I explained to Ms Keerthy that I had concerns about the way in which the grounds of appeal had been presented by the respondent. It should however be noted that Ms Keerthy is not the official responsible for drafting those grounds. As explained above, for the purposes of Ground 1, the respondent contends that the judge erred by considering the lawfulness of her decision against Guidance that was in force at the date of the hearing rather than that which was extant on the date of the Stage 1 decision. The grounds continue,
“In the absence of evidence establishing that those requirements existed at the material time, the conclusion was legally unsustainable and involved the application of the wrong legal framework”.
14. However, the respondent fails to say whether the version of the Guidance in force at the date of decision did contain the same requirements as the later Guidance relied upon by the judge. Just as surprising is the respondent’s failure to provide copies of either version of the Guidance in her appeal bundle. Like Judge Codd, I too had found it difficult to find the exact version of the guidance in force on the date of the Stage 1 decision online. Ms Keerthy did not have a copy either. However, I had managed to find version 3.0 of the Guidance, then simply titled Conducive deportation, dated 15 March 2024, and version 4.0, dated 31 March 2025. Reading those versions of the Guidance, it is clear that the passages relied upon by the judge were materially identical to those applicable on 10 February 2025.
15. In those circumstances, I indicated to Ms Keerthy that my provisional view was that it would be difficult for the respondent to maintain that Ground 1 disclosed a material error in the judge’s approach. Ms Keerthy agreed and indicated that she did not intend to pursue the ground. Nevertheless, I explained that I was concerned that the respondent had neither expressly acknowledged in Ground 1 that the relevant passages of the different versions of the Guidance were materially identical nor provided the Upper Tribunal with copies of the versions of the Guidance in issue. Had either course been taken, it seems unlikely that Judge Davies would have granted permission to appeal on Ground 1. I therefore informed the parties that, following the hearing, I would issue directions seeking an explanation from the author of the grounds of appeal as to the circumstances in which that ground came to be advanced.
16. I then proceeded to hear submissions from the parties.
The parties’ submissions
17. Ms Keerthy submitted that the judge had exceeded the permissible scope of a Stage 1 appeal by undertaking a substantive merits assessment of the deportation decision. Relying on Molnar and Vargova v Secretary of State for the Home Department [2026] 1 WLR 3997, Ms Keerthy argued that the issue was simply whether the appellant fell within the statutory framework permitting the commencement of deportation action, not whether deportation was ultimately justified. That, she submitted, was a matter for Stage 2. The judge had therefore wrongly criticised the respondent for failing to consider matters relevant to a later Stage 2 decision, such as factors weighing against deportation, and had misconstrued the respondent’s Guidance by treating those matters as mandatory considerations at Stage 1.
18. Mr Pipe relied upon the appellant’s Rule 24 response. He submitted that the First-tier Tribunal had correctly adopted a public law approach consistent with the Upper Tribunal’s decision in Vargova and had not strayed into an assessment of the substantive merits of deportation. Mr Pipe argued that the judge’s analysis focused on whether the respondent had complied with her own guidance and taken into account the factors relevant to the assessment that deportation was conducive to the public good. The judge did not substitute his own view for that of the respondent but concluded, on public law grounds, that relevant considerations identified in the guidance had not been properly addressed. Grounds 2 to 4 were therefore without merit, while Ground 1 fell away in light of the evidence concerning the applicable guidance.
19. At the end of the hearing, I reserved my decision.
Discussion
Ground 1: Reliance on the Guidance
20. As discussed at [13]-[15] above, the passages of the 22 March 2026 Guidance relied upon by the judge were identical to those contained in the Guidance that was in force when the Stage 1 decision was made. Therefore, this ground raises an immaterial point incapable of affecting the outcome of the appeal.
Ground 2: Misdirection as to the scope of Stage 1 and impermissible merits review
21. The primary focus of Ms Keerthy’s submissions were directed at Ground 2. Essentially, she argued that the judge erred by finding that the Guidance required the respondent to take into account at Stage 1 the factors that he listed at [32] because those were relevant to the Article 8 ECHR proportionality assessment that would be considered at Stage 2 of the deportation process. All the respondent was required to do at Stage 1, Ms Keerthy suggested, was decide whether, based on the information available to her at the date of decision, the appellant met the criteria for deportation on conducive grounds.
22. The difficulty with that submission is that it does not fairly reflect the structure of the Guidance.
23. Under the heading “Stage 1 decision to make a deportation order”, the Guidance provides that, where a person meets the threshold for deportation, the decision-maker must consider issuing a Stage 1 decision letter “setting out why deportation is conducive to the public good”. The Guidance further requires the decision letter to set out relevant information held by the Home Office concerning the person’s circumstances.
24. That section includes a hyperlink to an earlier part of the Guidance where the deportation threshold is defined, so far as relevant to this appeal, by reference to offending that has caused “serious harm”.
25. The words “serious harm” also contain a hyperlink to the definition of that phrase:
“It is at the discretion of the Secretary of State whether an offence is considered to have caused serious harm.

An offence that has caused ‘serious harm’ means an offence that has caused serious physical, psychological, emotional or economic harm to a victim, victims or to society in general.

[…]

An evaluative judgement should be made in light of the facts and circumstances of the offending.

Where a person has been convicted of one or more violent, drugs or sex offences, they will usually be considered to have been convicted of an offence that has caused serious harm.”
26. Furthermore, under the heading “Deportation under the Immigration Act 1971 and the subheading “Deportation conducive to the public good”, the Guidance includes the following:
“Section 3(5) of the 1971 Act provides for the Secretary of State to make a deportation order on the basis their deportation is conducive to the public good. This gives the Secretary of State discretion to act in a way that reflects the public interest.

[…]

It will normally be appropriate to consider deportation on the ground it is conducive to the public good under the 1971 Act…in the following types of cases (this is not an exhaustive list):

• where the person’s offending has caused serious harm in the UK or in another country

[…]
27. Importantly, under the subheading “Consideration”, is the following:
“When deciding whether it is proportionate to pursue deportation on the ground it is conducive to the public good you must consider each case on its individual merits taking account of:

• the nature of the offending, the length of any sentence(s) given and Judge’s
sentencing remarks
• when the offending occurred
• the impact of the offending on the victim
• any assessment made by the police about the threat posed to the public
• any risk assessment made by HM Prison and Probation Services
• any factors which are capable of outweighing deportation such as length of the
person’s residence in the UK, their ties to the UK and the UK’s obligations
under the ECHR, Refugee Convention or other international treaties or
conventions, such as the European Convention on Action against Trafficking in
Human Beings”
These are the factors that the judge found, at [32], the respondent had failed to take into account when making her Stage 1 decision.
28. To summarise, the Guidance requires the respondent, at Stage 1, to consider whether the threshold for deportation is met. In the present case, because the appellant had been sentenced to a single term of imprisonment of less than 12 months, the only potentially applicable basis for concluding that the deportation threshold was met was that he had committed an offence that had caused “serious harm”. That assessment requires an evaluative judgment to be made in light of the facts and circumstances of the offending. The Guidance further provides that, where deportation is contemplated under s.3(5) of the 1971 Act on serious harm grounds, the respondent must consider whether such action would be proportionate, taking into account the factors identified at [27] above. Although Ms Keerthy submitted that those factors are relevant only to the Article 8 proportionality assessment undertaken at Stage 2, that is not what the Guidance says.
29. On a fair reading of the Guidance, the respondent is required at Stage 1 to undertake the process described above on the basis of the information available to her at the date of decision. An appellant may, of course, provide representations in response to a Stage 1 decision, which may lead the respondent to reconsider her initial view, whether by discontinuing deportation action or by proceeding to a Stage 2 decision. However, I can find nothing in the Guidance to support Ms Keerthy’s submission that, at Stage 1, the respondent need do no more than make a cursory and provisional assessment of whether deportation on conducive grounds is justified by reference to the conviction alone, with all other relevant considerations deferred until Stage 2.
30. As the judge noted at [32], the Stage 1 decision is incredibly brief. The material passages state:
“On 30 January 2025, at Stafford Crown Court, you were convicted of Possess with intent to supply controlled drug [sic] - Class B Cannabis, for which you were sentenced to imprisonment. As a result of your criminality, the Secretary of State deems your deportation to be conducive to the public good and as such you are liable to deportation under section 3(5)(a) of the Immigration Act 1971.

The Secretary of State has deemed your deportation to be conducive to the public good and accordingly it is in the public interest that you be removed from the UK without delay. Therefore, the Secretary of State has decided to make a deportation order against you under section 5(1) pursuant to section 3(5) or 3(6) of the Immigration Act 1971”
The judge was therefore entitled to conclude, at [33]-[34], that the decision does not demonstrate that the respondent made an evaluative judgement that took into account the factors identified in her Guidance. In particular, the decision does not explain why the respondent was satisfied that the appellant’s offending had caused serious harm, nor does it indicate that any consideration was given to whether deportation would be proportionate in the circumstances of the case.
31. Furthermore, it cannot be said that the judge impermissibly substituted his own view for that of the respondent. As Mr Pipe submitted, the judge was careful throughout his decision to make clear that he was not determining the substantive merits of the deportation decision. At [33], the judge noted that the respondent had purported to exercise her discretion but that there was no evidence demonstrating how that discretion had in fact been exercised. At [34], he observed that the decision “does not establish that the Respondent took into account all the factors in his [sic] own Guidance” and concluded that she had therefore “disregarded matters which he [sic] should have taken into consideration”. At no stage did the judge express his own view as to whether the appellant ought to be deported on conducive grounds. On the contrary, at [35] he made clear that the consequence of his decision was simply that the respondent was required to make the decision afresh and that she might well reach the same conclusion and continue to pursue the appellant’s deportation. There is nothing in the decision which comes close to demonstrating that the judge failed to approach the appeal in the manner contemplated by the Supreme Court in Begum v Special Immigration Appeals Commission [2021] 2 WLR 556 at [120]-[124].
32. For those reasons, Ground 2 is not made out.
Ground 3: Failure to give adequate reasons
33. There is a degree of tension between Grounds 3 and 4. In Ground 3, the respondent contends that the judge failed to give adequate reasons for his decision. In Ground 4, however, the respondent submits that the absence of reasoning in the Stage 1 decision does not justify a conclusion that she herself erred in law. In any event, there is no merit in the respondent’s submission that the judge failed to give adequate reasons for his decision. As explained above in relation to Ground 2, the judge undertook a careful analysis of the respondent’s Guidance and provided clear, cogent and sustainable reasons for concluding that the Stage 1 decision failed to explain how the respondent had reached the view that the appellant’s deportation on conducive grounds was justified. In particular, the judge was entitled to conclude that the decision did not demonstrate that the respondent had applied the framework set out in her own published policy or considered the matters which that policy required her to take into account.
Ground 4: Error in treating the absence of reasoning as evidence that matters had not been considered
34. Ms Keerthy chose not to advance any oral submissions on this ground, and with good reason. This ground is not arguable. The respondent contends that the judge erred by treating the absence of any express reference to particular matters as evidence that they had not been considered and, somewhat curiously, argues that he “identified no positive evidence demonstrating that the [respondent] failed to consider relevant matters”.
35. As explained above, the material reasoning contained in the Stage 1 decision was extremely brief. Moreover, the respondent did not disclose any file minutes or other contemporaneous material capable of shedding light on the decision-making process or demonstrating what matters had been taken into account. In those circumstances, the judge was entitled to conclude that the respondent had failed to demonstrate that she had complied with the requirements of her own published Guidance.
36. The judge was therefore plainly entitled to focus on the contents of the decision letter itself. He cannot be criticised for concluding that the decision failed to demonstrate that the respondent had considered the matters identified in her Guidance. It is, moreover, difficult to see what “positive evidence” the judge was expected to identify beyond the contents of the impugned decision in the absence of any other evidence explaining how the decision had been reached. Contrary to the respondent’s submission, based on the material available to him, the judge was not required simply to assume that all relevant considerations had been taken into account.
Notice of Decision
The decision of the First-tier Tribunal did not involve the making of a material error of law and shall stand.
The Secretary of State’s appeal is dismissed.

M R Hoffman

Judge of the Upper Tribunal
Immigration and Asylum Chamber

20th October 2026