United Kingdom Immigration and Asylum (AIT/IAC) Unreported Judgments

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IN THE UPPER TRIBUNAL IMMIGRATION AND ASYLUM CHAMBER	Case No: UI-2023-003204
	First-tier Tribunal Nos: HU /58195/2022 LH/01210/2023

 

THE IMMIGRATION ACTS

Decision & Reasons Issued:

On the 24 March 2025

 

 

Before

 

DEPUTY UPPER TRIBUNAL JUDGE Ó CEALLAIGH KC

UPPER TRIBUNAL JUDGE SHERIDAN

 

Between

 

The Secretary of State for the Home Department

Appellant

and

 

Mr Sali Dragodi

Respondent

Representation :

For the Appellant: Ms S Nwachuku, Senior Home Office Presenting Officer

For the Respondent: Mr A Eaton, Garden Court Chambers

 

Heard at Field House on 10 March 2025

 

DECISION AND REASONS

Introduction

1.               The Secretary of State for the Home Department appeals with permission against the decision of First-tier Tribunal Judge Mulready, who allowed Mr Dragodi's appeal against her decision to refuse his human rights claim. In order to avoid confusion, we will refer to the parties as they appeared below. Accordingly, while the Secretary of State is formally the appellant in this appeal, we shall refer to her as "the respondent" and Mr Dragodi as "the appellant".

2.               The appellant is a national of Greece born on 5 August 1998. He entered the United Kingdom in August 2020 and was granted limited leave to remain pursuant to the EU Settlement Scheme on 26 August 2020, when he was 22 years old. The respondent pursues his deportation following his conviction for possession of cannabis with intent to supply, following which he was sentenced to one year, one month and 21 days' imprisonment. This is his only offence.

3.               The appellant's evidence before the FTT and accepted by it [22] was that the circumstances of the offence were exceptional, coming in the context of financial difficulties arising out of the circumstances of the pandemic. The appellant was at that time living in a single room paid for by the man he committed the offence with, who was more seriously involved.

4.               On 7 September 2021 the respondent served a decision on the appellant refusing his human rights claim. He appealed.

5.               On 29 June 2023 the appellant's appeal was allowed by First-tier Tribunal Judge Mulready. The decision is relatively concise, but on any view very carefully drafted.

6.               On 4 July 2023 the respondent appealed.

7.               On 2 August 2023 permission to appeal was refused by First-tier Tribunal Judge Chohan, who considered that there was no substance to the grounds. This was on the basis that:

"The judge has given more than adequate reasons for the findings made. It is clear from paragraph 23 that the judge was very conscious of the strong public interest in deporting foreign national offenders. It was a matter for the judge as to what weight to attach to the public interest having balanced the interests of the appellant and the public."

8.               The grounds were, it was said therefore, "a simple disagreement with the judge's findings and nothing more".

9.               On 8 August 2023 the respondent appealed to the Upper Tribunal.

10.           On 5 October 2024 permission to appeal to the Upper Tribunal was granted by Upper Tribunal Judge Gleeson, who did not give any reasons for her conclusion in the permission grant

Grounds of appeal

11.           The respondent relied on the following grounds:

(a)            The First-tier Tribunal had not "in practice", provided "any assessment regarding the public interest" in that there had been no "proper recognition" given to the nature of the offence, or expression of public revulsion or deterrence".

(b)           The appellant had not "provided any evidence of rehabilitation" and there was therefore no "guarantee" he might not reoffend.

(c)            The respondent submitted that "no reasons" had been advanced that "the appellant could not return to Greece, given his youth, his health and his skills".

(d)           The decision did not give "due weight" to the public interest.

The Hearing

12.           Before us the respondent and the appellant were ably represented by Ms Nwachuku and Mr Eaton respectively. We thank them for their clear and concise submissions.

13.           At the hearing Ms Nwachuku adopted the Secretary of State's grounds of appeal. She also elaborated on them as follows.

14.           First, relying on a letter referring to employment and the prosecution note of the appellant's sentencing hearing, she argued that it was clear that the appellant had been financially motivated to commit his crime. She said based on his witness statement that at the time of the offence his basic needs were already being met. She noted that the First-tier Tribunal had in paragraphs 22 and 23 assessed him to be a very low risk of reoffending. Her submission was that given his basic needs were covered and it was accepted this was a financially motivated crime, there was inadequate reasoning in respect of the risk of reoffending. She noted the high public interest in deportation and did not understand how the judge could have concluded that the appellant was a low risk of reoffending. She noted the absence of an OASys Report.

15.           Second, it was her submission that the First-tier Tribunal Judge could not have properly found that the appellant's deportation was a significant interference with his right to private and family life. She accepted on further questioning, as she was obliged to, that this was a Wednesbury challenge to the judge's reasoning. Indeed, it became clear over the course of discussions that all of the Secretary of State's grounds, on close analysis, amounted to a Wednesbury challenge to the judge's conclusion.

16.           Mr Eaton maintained as set out in his skeleton argument that it was not apparent that any legal error had been identified. It was impossible to say that the Judge had not considered all relevant factors. The Secretary of State's appeal was just a disagreement with the judge's conclusions. Moreover, the Judge's conclusions were plainly open to her. This was not a career criminal but someone who had done something stupid once and was unlikely to commit an offence again.

Discussion

17.           In HA (Iraq) v Secretary of State for the Home Department [2022] UKSC 22 Lord Hamblen held at paragraph 72:

"It is well established that judicial caution and restraint is required when considering whether to set aside a decision of a specialist fact finding tribunal. In particular:

(i)             They alone are the judges of the facts. Their decisions should be respected unless it is quite clear that they have misdirected themselves in law. It is probable that in understanding and applying the law in their specialised field the tribunal will have got it right. Appellate courts should not rush to find misdirections simply because they might have reached a different conclusion on the facts or expressed themselves differently - see AH (Sudan) v Secretary of State for the Home Department [2007] UKHL 49; [2008] AC 678 per Baroness Hale of Richmond at para 30.

(ii)           Where a relevant point is not expressly mentioned by the tribunal, the court should be slow to infer that it has not been taken into account - see MA (Somalia) v Secretary of State for the Home Department [2010] UKSC 49; [2011] 2 All ER 65 at para 45 per Sir John Dyson.

(iii)        When it comes to the reasons given by the tribunal, the court should exercise judicial restraint and should not assume that the tribunal misdirected itself just because not every step in its reasoning is fully set out - see R (Jones) v First-tier Tribunal (Social Entitlement Chamber) [2013] UKSC 19; [2013] 2 AC 48 at para 25 per Lord Hope."

18.           In the case of Herrera v Secretary of State for the Home Department [2018] EWCA Civ 412 Lord Justice Underhill held at paragraph 18:

"Appellate tribunals must always guard against the temptation to characterise as errors of law what are in truth no more than disagreements about the weight to be given to different factors, particularly if first tribunal had the advantage of hearing oral evidence. In my view that is what has happened here. The review carried out at paragraphs 20 to 24 of the UT's judgment reads more like a fresh assessment than a review of the reasoning of the FTT. Where Judge Farrelly differs, explicitly or implicitly, from the findings of Judge Hembrough it is essentially about matters of assessment: for example, at paragraph 21 he says of the Appellant's evidence, which the Judge Hembrough had accepted, that he would not be able to obtain work in Argentina that "the possibility of his obtaining some employment in his home country cannot be ruled out".  I can understand that the FTT's assessment may have been at the more generous end of the spectrum, and that another judge might have found that the Appellant's evidence was insufficient to satisfy the test under the Rules. But in my view the conclusion reached by Judge Hembrough was one to which he was entitled to come."

19.           In our view the grounds of appeal do not identify any error of law. The Tribunal quite clearly took account of all relevant matters. Indeed, in submissions, Ms Nwachuku accepted in terms that the relevant factors had been considered.

20.           Accordingly, the only question is whether or not the judge was entitled to attach the weight she did to those factors. It is not actually clear that the grounds raise a Wednesbury challenge, perhaps because the drafter of those grounds was conscious of the high threshold. However, in any event, in our view the Wednesbury threshold is not met. It is quite clear that in a very cautious determination, First-tier Tribunal Judge Mulready took account of all relevant factors and reached a conclusion that was open to her on the facts. While the FTT's assessment may have been at the more generous end of the spectrum, it is one that she was entitled to reach.

Notice of Decision

21.           The decision of First-tier Tribunal Judge Mulready, promulgated on 29 June 2023, did not involve the making of an error of law. We therefore uphold that decision. The Secretary of State's appeal against that decision is dismissed with the consequence that the decision of Judge Mulready allowing Mr Dragodi's appeal against the Secretary of State's decision to refuse his human rights claim stands.

 

Greg Ó Ceallaigh KC

 

Deputy Judge of the Upper Tribunal

Immigration and Asylum Chamber

 

 

17 March 2025