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IN THE UPPER TRIBUNAL IMMIGRATION AND ASYLUM CHAMBER |
Case No: UI-2022-006349 |
|
First-tier Tribunal No: EA/03259/2021 |
THE IMMIGRATION ACTS
Decision & Reasons Issued:
2 nd May 2025
Before
UPPER TRIBUNAL JUDGE RASTOGI
DEPUTY UPPER TRIBUNAL JUDGE ATHWAL
Between
Ladislav Libal
(NO ANONYMITY ORDER MADE)
Appellant
and
The Secretary of State for the Home Department
Respondent
Representation :
For the Appellant: Not present nor represented
For the Respondent: Mr P. Lawson, Senior Home Officer Presenting Officer
Heard at Birmingham Civil Justice Centre on 28 April 2025
DECISION AND REASONS
1. This is the remaking of a decision of the First-tier Tribunal dated 22 July 2022 which, on 31 October 2023, was found to contain an error of law and was set aside by the Upper Tribunal with certain preserved findings. As this is a remake decision, the appellant before us is Mr Libal and we will refer to the respondent as the Home Office.
Summary of our decision
2. There has been a protracted procedural history since the error of law decision was made but, in summary, at the hearing today Mr Lawson conceded the appeal should be allowed on the basis that the two decisions under challenge, both dated 14 October 2020, were wrongly made. As a consequence, his indefinite leave to remain ("ILR") granted pursuant to the European Union Settlement Scheme ("EUSS") on 13 September 2019 is to be reinstated. At the end of the hearing we announced that the appeal is allowed and we set out our brief reasons for doing so below.
Preliminary Matter
3. Before doing so, we deal briefly with Mr Libal's absence from the hearing and his application for Mr M. Slisko to act as his Litigation Friend, made by email on 28 April 2025.
4. Mr Libal in a document called "On request for adjournment and transfer of judges," sent by email to the Tribunal on 28 April 2025, stated that he was unwell and would not be able to attend the hearing of 28 April 2025. He provided a copy of a current sicknote issued by his GP. We were satisfied that there was good reason for the Appellant's absence and proceeded to consider whether the case should be adjourned.
5. Prior to the hearing the we were informed by our clerk of the Home Office's revised position so we knew what the likely outcome would be and that Mr Libal's need to input into the hearing was likely to be unnecessary. We therefore exercised our discretion to hear the case in Mr Libal's absence as, although there was a good reason for his absence, given the Home Office's concession (which is set out below) it was in Mr Libal's interests and the overall interests of justice for the hearing to go ahead in his absence (rule 38 of The Tribunal Procedure (Upper Tribunal) Rules 2008 applies).
6. Although Mr Slisko attended the hearing as the proposed Litigation Friend, once he learned of the likely outcome, he confirmed that his only concern was whether or not Mr Libal had capacity to send him our decision (once issued) within an appropriate timescale. One of the reasons he was concerned about this was the fact that he (Mr Slisko) cannot always answer his phone so he may not hear from Mr Libal in a timely fashion, which does not relate to Mr Libal's capacity but rather his own situation. At this point we decided that it was necessary to decide the application for a Litigation Friend on the specific question of whether the appellant had capacity to send a copy of this decision to Mr Slisko.
7. Mr Libal has a diagnosis of schizophrenia. That is not in dispute. There were concerns raised about his capacity at the hearing on 3 March 2025 but no specific medical evidence on that issue was before us. We noted that notwithstanding the apparently obvious decline in Mr Libal's mental health and his recent sicknote issued by his GP, Mr Libal had been able to arrange for Mr Slisko to attend the hearing on his behalf and he had continued to email the Tribunal raising certain issues related to the hearing over the past few weeks including on the date of the hearing itself. Accordingly, we were not satisfied that Mr Libal did not have capacity to pass the decision of the Tribunal to Mr Slisko (in other words we decided he would have capacity to do that). In any event, the decision was one that was in his favour and timescales would not apply. For these reasons, applying the test for capacity as contained at section 2(1) of the Mental Capacity Act 2005 and in light of the guidance in the Joint Presidential Guidance No. 1 of 2024: Appointment of litigation friends in the Upper Tribunal (Immigration and Asylum Chamber) and First-tier Tribunal (Immigration and Asylum Chamber), we refused the application for a Litigation Friend.
The decisions under challenge
8. There were two decisions under challenge dated 14 October 2020. The first was the cancellation of the appellant's ILR (granted under the EUSS) purportedly pursuant to paragraph 321(b)(iv) of the Immigration Rules ("the cancellation decision").
9. The second decision was a refusal of admission when Mr Libal sought admission to the UK pursuant to Regulation 11 of the Immigration (European Economic Area) Regulations 2016 (EEA Regs) applying regulations 23 (1) and 27 ("the exclusion decision"). The Home Office decided that Mr Libal's admission to the UK should be refused on public policy grounds as he posed a threat to society in light of his criminal convictions (in the Czech Republic). It was said to be taken to protect the fundamental values of society and that the decision was proportionate to his free movement rights and to his right to respect for his family life as contained within Article 8 of the ECHR.
10. In his original notice of appeal to the First-tier Tribunal, Mr Libal appealed the decisions dated 14 October 2020.
11. Whilst these were two separate decisions, they are nevertheless linked. The reason the Home Office gave for cancelling Mr Libal's ILR was because he failed to disclose his criminal convictions from the Czech Republic. As Mr Libal's leave had been cancelled and, given that he answered very few questions about his application and his offending in the Czech Republic when interviewed at the border on 14 October 2020, the respondent decided that his deception and offending justified refusing him admission.
12. The cancellation decision was purportedly taken pursuant to paragraph 321(b)(iv) of the Immigration Rules. As we pointed out at the hearing on 3 March 2025, that paragraph does not exist in the Rules and did not do so on the date the cancellation decision was made. We also noted that the Home Office had not provided a copy of Mr Libal's application for ILR.
The Home Office's concession
13. At the hearing today, Mr Lawson conceded that the cancellation decision had been made under the incorrect provision. It was said to be made under paragraph 321(b)(iv) although Mr Lawson referred to it being made on the basis of a change in circumstances that is, or would have been, relevant to that person's eligibility for that entry clearance (which in fact is paragraph 321B(b)(iv) of the Rules then in force). Mr Lawson stated that it should have been taken under paragraph 321B(b)(iii) which relates to deception. However, he went on to explain that it could not have lawfully been taken under that paragraph applying the guidance in force at the time, as such a decision could only have been taken then if there was evidence of intent to cause problems on entry. Mr Lawson conceded there was not and neither could the Home Office rely on Mr Libal's subsequent offending to establish intent at the time of entry. For these reasons, he invited us to find the cancellation decision to be wrong in law and he accepted the exclusion decision was infected as a result.
Our conclusions
14. We are satisfied this concession was rightly made. It is not in dispute (and Mr Lawson confirmed as much at the hearing on 3 March 2025) that the Home Office has the burden of proving that the two decisions under challenge were justified.
15. Insofar as the basis for allowing the appeal, the position is different as between each decision. The cancellation decision was made pursuant to the Immigration Rules but in relation to leave granted under the EUSS. As the decision letter confirmed, the right of appeal is found within regulation 3(1)(b) of the Immigration (Citizens' Rights Appeal) (EU Exit) Regulations 2020 and the grounds are contained within Regulation 8(2)(a) and (3)(a). In summary they are that the decision under challenge represents a breach of a person's rights under the Withdrawal Agreement and/or is not in accordance with the Immigration Rules. The appellant is entitled to bring his appeal from inside or outside the UK (regulation 14).
16. The exclusion decision was made under the EEA Regs. The appellant can only appeal the decision from outside the United Kingdom (regulation 37(4) applies). At the hearing on 3 March 2024, Mr Lawson confirmed that he was not taking a jurisdictional point here, notwithstanding Mr Libal was now in the UK (and was at the time the First-tier Tribunal heard his appeal) as there was evidence that he was abroad when he lodged his appeal. The right of appeal is found within regulation 36 and the grounds of appeal are that the decision breaches the appellant's rights contained within the EU Treaties. As the Home Office made a human rights decision, Mr Libal also has a right of appeal under section 82(1) of the Nationality, Immigration and Asylum Act 2002.
17. In light of the Home Office's concession, we are satisfied that the cancellation decision was not in accordance with the Immigration Rules.
18. As one of the bases of the exclusion decision was wrong (deception), we are satisfied (and it is not argued to the contrary) that the Home Office's assessment that Mr Libal's exclusion was justified on public policy grounds and proportionate (regulation 23) was also wrong. Accordingly, we are satisfied that this decision amounts to a breach of the appellant's EU rights.
19. For these reasons the appeal is allowed.
Possible future action by the Home Office
20. As Mr Lawson conceded, Mr Libal's ILR will be reinstated. However, Mr Lawson raised an important issue. When Mr Libal was in prison in 2023, he was apparently served with a Stage 1 deportation letter in relation to his criminal offending. So far, Mr Libal appears not to have responded to that letter. Mr Lawson confirmed that the Home Office is likely to make a Stage 2 deportation order very soon. This will have the effect of not only seeking the appellant's removal from the UK and return to the Czech Republic, but also of cancelling (lawfully) his ILR. Mr Libal will have the right to appeal that decision to the First-tier Tribunal. The usual time-limits apply. Mr Lawson raised this fairly to put Mr Libal on notice. We explained this carefully to Mr Slisko in order that he could talk to Mr Libal about this and we stressed the importance of Mr Libal keeping an eye out for any letter. We suggested he seek some legal advice. We also flagged that our decision, refusing to appoint Mr Slisko as litigation friend for Mr Libal, was specific to the proceedings before us and, if a deportation decision was made and Mr Libal is still considered to lack capacity, a fresh application would have to be made within any appeal against the deportation decision.
Notice of Decision
The appeal is allowed.
SJ Rastogi
Judge of the Upper Tribunal
Immigration and Asylum Chamber
29 April 2025