[2024] UKUT 00066 (IAC)

On 14 October 2020, Mr Szuba was convicted on a guilty plea of possession with intent to supply Class A drugs for which on 28 January 2021 he was sentenced to 5 years and 3 months’ imprisonment. On 23 October 2021, the Secretary of State took a decision to deport him pursuant to the Immigration Act 1971 as he was a foreign criminal and none of the exceptions set out in section 33 of the 2007 Act applied. His then solicitors wrote to the Secretary of State on 9 November 2021, submitting that the decision should have been taken pursuant to the EEA Regulations, not domestic law. The Secretary of State replied on 7 March 2022, seeking evidence that he had made an EUSS application in February 2020 as claimed.

On 23 May 2022, the Secretary of State, having treated AS’s representations as a human rights claim, refused it, giving rise to a right of appeal, and serving on him a deportation order dated 23 May 2022.

On appeal, the judge noted at [8] that AS appealed on the basis that his case is governed by the EEA Regulations, recording at [10] that he had confirmed with the representatives that the appeal is governed by those regulations.

The judge directed himself at [16] that by operation of the CRA regulations at reg. 7 the substantive law governing the appeal is the EEA Regulations. Having heard evidence and submissions, the judge went on to find:

The Secretary of State sought permission to appeal on the grounds that the judge had erred as he:

Permission to appeal was granted on 24 February 2023.

In his response pursuant to rule 24, AS avers that the judge did not err in his approach to the law, and that if he did, it was immaterial, observing at [13] that the Secretary of State had not challenged many relevant findings. It is also averred that the judge had, having had regard to all the evidence, given sufficient reasons for concluding that AS had made an application under the EUSS in February 2020.

The relevant issues in this appeal were agreed.

The decision under appeal was a human rights decision and thus the right of appeal was under section 82 of the 2002 Act. There was no decision under the EEA Regulations or under the EUSS and so there was no appeal under the CRA or the EEA Regulations. On that basis, the FtT made a significant error [16] in concluding that the substantive law governing the appeal was the EEA Regulations, an error compounded at [17]. Even had AS made an application under the EUSS in February 2020, there was no decision under those regulations which gave rise to an appeal.

In the circumstances, we agree with Ms Smyth that the judge should have considered the appeal under section 82 (1) of the 2002 Act. He did not do so. Had he applied the five-step Razgar analysis, then he would have had to consider whether the decision was in accordance with the law, before considering whether it was proportionate. He did neither.

Whether that error was material turns primarily on whether the judge erred in finding that AS had made an application under the EUSS in February 2020. It is to that issue that we turn next.

With regard to the finding that AS had made an EUSS application in February 2020, we remind ourselves that as an appellate tribunal we should be reluctant to overturn a finding of fact made by a lower tribunal.

AS’s evidence is that he had made an application for settlement at the same time as his mother and stepfather in February 2020, a point put to the Secretary of State in representations made on 9 November 2021. On 7 March 2022, he wrote to AS’s solicitors seeking further information about that application. There is no indication in the bundle that there was a response to that letter, and in its Notice of Decision dated 23 May 2022, the Home Office stated [2] that AS had not provided documentary evidence of his application, nor that he had an outstanding application to the EUSS. There is, however, an email dated 7 June 2022 from AS’s stepfather, stating that they do not have the confirmation email as Yahoo mail deletes the account after 12 months’ inactivity. That email address is not specified. There is, further, an email from UK Visas sent Wednesday 15 June (presumably 2022), stating that they had closed a UK Visas and Immigration account registered to that address as a result of a phone call and that as a result, any applications linked to that account were deleted.

It appears from the Certificate of Application dated 11 July 2022 that AS had made an application under the EUSS on 30 June 2022.

There is no mention in AS’s Witness statement of having made any application. The judge summarised his evidence as follows:

Here, there was no documentary evidence that an application under the EUSS had been made. The email from the Home Office states simply that any application that had been made would be deleted which is not confirmation than an application had been made. On a proper analysis, it is the oral evidence, not the documents that indicate an application had been made then deleted.

Further, as Ms Smyth submitted, the judge does not engage with the letters from the Secretary of State which concluded that there was no evidence of an application being made. We accept that the Secretary of State’s representative did not suggest that AS was not a credible witness (see decision at [28]) but it was still for AS to prove on the balance of probabilities that he had made an application in February 2020.

We do not consider that the reasoning in this case is adequate in the circumstances of the case, given the lack of any documentary evidence that an application was made and we note this is a case in which it is said that it was received but can no longer be found. AS’s solicitors wrote to the Home Office on 9 November asking them to check their records. But the judge did not engage with this, or why the Home Office could find no record of the application.

Accordingly, we find that ground 2 is made out, and the finding that AS had made an application under the EUSS in February 2020 is unsustainable.

We accept that, in considering a human rights appeal under section 82 of the 2002 Act, it will be necessary, following Razgar to consider whether the decision was in accordance with the law, and whether the requirements of the Immigration Rules (including EUSS) had been met, that being relevant to proportionality. Here, having directed himself wrongly according to the law, and having reached an unsustainable finding of fact as to the making of an EUSS application, the judge did not address the issue of proportionality with reference to the law applicable to human rights appeals. Taking these factors together, we conclude that the error was material, given the fundamental error in approach to the relevant law.

For these reasons, we answer the issues raised in AS’s appeal as follows:

We have given directions for the remaking of this appeal below.