Factual and Procedural Background
The Appellant appealed against decisions of the Upper Tribunal, which had dismissed the Appellant’s challenge to a First-tier Tribunal decision allowing the Respondent’s appeal against deportation and refusal of his application under the European Union Settlement Scheme. [1]
The Respondent, a citizen of State A, was convicted there in 2011 of drug-related and firearms offences and sentenced to 13 years’ imprisonment. He was released in 2019, entered State B later that year, and applied under the EUSS in 2020. [2][3]
In his application, the Respondent disclosed a criminal conviction but described it only as a “Drug-related offence”. The Appellant subsequently decided that he should be deported on public-policy and public-security grounds, asserting that he posed a genuine, present and sufficiently serious threat and had failed to disclose the full extent of his criminality. [4][5][6]
The First-tier Tribunal allowed the Respondent’s appeal, finding that the required threat was not genuine or present. The Upper Tribunal upheld that decision. [7][8][9][10][11]
The Court of Appeal allowed the Appellant’s appeal and remitted the case to a freshly constituted Upper Tribunal. [12]
Legal Issues Presented
- Whether the First-tier Tribunal erred by applying an allegedly “high threshold” when assessing deportation under Regulation 27 of the 2016 Regulations. [13]
- Whether the First-tier Tribunal adequately considered the Respondent’s firearms-related offending and his incomplete disclosure in the EUSS application. [14][13]
- Whether the Appellant had obtained sufficient information about the Respondent’s convictions from the authorities of State A. [15][16][17]
- Whether the decisions of the First-tier and Upper Tribunals should be set aside and the matter remitted for reconsideration. [12]
Arguments of the Parties
Appellant’s Arguments
- The First-tier Tribunal failed to consider that the Respondent had not fully disclosed his criminal history, which was said to demonstrate continuing risk and a willingness to deceive. [18][19]
- The First-tier Tribunal applied an excessively high threshold and adopted a flawed approach to rehabilitation and proportionality. [19][20]
Respondent’s Arguments
- The Appellant had failed to comply with Article 27(3) of the Citizenship Directive 2004/38 when making the deportation decision. [21][22]
- The Appellant had failed to obtain all relevant information concerning the Respondent’s convictions from the authorities of State A. [23][16]
- The Appellant had incorrectly described the firearms convictions in the deportation decision. [24]
Table of Precedents Cited
| Precedent |
Rule or Principle Cited For |
Application by the Court |
| Essa |
A conviction alone is insufficient; in cases falling short of the most serious threats, deportation generally requires a present threat arising from a propensity or unacceptably high risk of reoffending. [25] |
The First-tier Tribunal referred to this principle, but the Court of Appeal found that the tribunal had wrongly described the applicable test as a “high threshold” and had omitted material features of the offending. [25][13] |
Court's Reasoning and Analysis
The Court confirmed that the preserved provisions of the 2016 Regulations applied to the Respondent’s case. Deportation required conduct representing a genuine, present and sufficiently serious threat affecting a fundamental interest of society, while also requiring proportionality and consideration of personal circumstances. [26][27][28][29]
The Court rejected the Respondent’s technical objections. The available Slovak judgment and criminal-record material sufficiently established that the Respondent’s long sentence covered both drug trafficking and firearms offending. It was immaterial whether the sentence was structured as concurrent sentences or as an aggregate sentence under the “Asperation Principle”. [30][31][32][17]
The Court considered the EUSS answer “Drug-related offence” misleading because it did not disclose the firearms offending. However, the First-tier Tribunal could not properly treat the non-disclosure as evidence of dishonesty when that allegation had not been put to the Respondent in cross-examination. [14]
The principal errors concerned the First-tier Tribunal’s use of the expression “high threshold” and its failure to maintain focus on the fact that the Respondent was not merely a drug dealer but had trafficked in, or had available, firearms and ammunition. Those omissions materially affected the required balancing exercise. [13]
Because of those errors, the Court concluded that the Upper Tribunal could not uphold the First-tier Tribunal’s decision. The Court declined to determine the ultimate lawfulness of the deportation and EUSS decisions itself, considering that the case should be reconsidered by a freshly constituted tribunal. [13][12]
Holding and Implications
APPEAL ALLOWED. The decisions of the Upper Tribunal and First-tier Tribunal were set aside, and the case was remitted to a freshly constituted Upper Tribunal to hear the Respondent’s appeals against deportation and refusal of the EUSS application. [12][33][34]
The direct effect was that the Respondent’s appeals required a new determination; the Court did not itself decide whether deportation or refusal of the EUSS application was lawful. [12] No broader implications were stated, and no new precedent was set.