Badewa (SS117A-D and EEA Regulations)
| Jurisdiction | UK Non-devolved |
| Judge | Mrs Justice Thirlwall,Storey,Thirlwall J,Storey UTJ |
| Judgment Date | 29 May 2015 |
| Neutral Citation | [2015] UKUT 329 (IAC) |
| Court | Upper Tribunal (Immigration and Asylum Chamber) |
| Date | 29 May 2015 |
[2015] UKUT 329 (IAC)
Upper Tribunal
(Immigration and Asylum Chamber)
THE IMMIGRATION ACTS
The Honourable Mrs Justice Thirlwall
Upper Tribunal Judge Storey
For the Appellant: Mr K Mak, Solicitor, MKM Solicitors
For the Respondent: Mr E Tufan, Home Office Presenting Officer
Badewa (ss 117A-D and EEA Regulations)
The correct approach to be applied by tribunal judges in relation to ss.117A-D of the Nationality, Immigration and Asylum 2002 (as amended) in the context of EEA removal decisions is:
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(i) first to decide if a person satisfies requirements of the Immigration (European Economic Area) Regulations 2006. In this context ss.117A-D has no application;
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(ii) second where a person has raised Article 8 as a ground of appeal, ss.117A-D applies.
The appellant, born in November 1995, is a national of Nigeria. He brings an appeal against a decision of the First-tier Tribunal (FtT) comprising Judge Gillespie and NLM Winstanley. On 10 December 2014 the FtT dismissed the appellant's appeal against a decision dated 24 June 2014 expressed as a deportation order against him pursuant to regulation 19(3)(b) of the Immigration (European Economic Area) Regulations 2006 (hereafter “the 2006 EEA Regulations”).
The appellant came to the UK in May 2009 in the company of his younger brother on an EEA family permit to join their mother and stepfather. Their stepfather was a Portuguese national. On 1 December 2011 the appellant was issued with a residence card as the family member of an EEA national valid until 1 December 2016. The appellant's criminal history began in November 2012 when he was arrested for robbery. For this he was convicted and placed on a twelve month referral order. On 6 July 2013 he was convicted of two counts of robbery and one of possession of a knife in a public place. For these offences he was sentenced to 24 months' detention and a training order. Whilst in detention he has received a number of adjudications for violence.
The FtT heard evidence from the appellant, his mother and younger brother. The FtT found that all three were unreliable witnesses in relation to his family circumstances in Nigeria which adversely affected their credibility generally. The FtT did not accept that his father in Nigeria had abandoned him. It considered that the appellant's equivocal attitude to his past offending cast doubt on the extent of his willingness to accept responsibility for his wrongdoing. It found that he had not settled into home life in the UK and had fallen into a delinquent lifestyle. The FtT highlighted that despite being given significant opportunities to overcome difficulties at home, in the form of separate accommodation, an allowance, school and college placements, he had re-offended and continued his resort to violence in a Young Offenders Institute.
The FtT stated that it was required to decide the appeal under regulation 19(3) of the 2006 EEA Regulations in respect of whether his deportation was on grounds of public policy or public security. It then recited the principles set out in regulations 21(2), 21(5) and 21(6). It will assist if before proceeding further we set out the provisions of regulation 19(3)-(5) and regulation 21(1)-(6) respectively:
“19. …
(3) Subject to paragraphs (4) and (5), an EEA national who has entered the United Kingdom or the family member of such a national who has entered the United Kingdom may be removed if
(a) that person does not have or ceases to have a right to reside under these Regulations;
(b)the Secretary of State has decided that the person's removal is justified on grounds of public policy, public security or public health in accordance with regulation 21; or
(c) the Secretary of State has decided that the person's removal is justified on grounds of abuse of rights in accordance with regulation 21B(2).
(4) A person must not be removed under paragraph (3) as the automatic consequence of having recourse to the social assistance system of the United Kingdom.
(5) A person must not be removed under paragraph (3) if he has a right to remain in the United Kingdom by virtue of leave granted under the 1971 Act unless his removal is justified on the grounds of public policy, public security or public health in accordance with regulation 21.
…
Decisions taken on public policy, public security and public health grounds
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21. (1) In this regulation a “relevant decision” means an EEA decision taken on the grounds of public policy, public security or public health.
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(2) A relevant decision may not be taken to serve economic ends.
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(3) A relevant decision may not be taken in respect of a person with a permanent right of residence under regulation 15 except on serious grounds of public policy or public security.
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(4) A relevant decision may not be taken except on imperative grounds of public security in respect of an EEA national who-
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(a)has resided in the United Kingdom for a continuous period of at least ten years prior to the relevant decision; or
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(b)is under the age of 18, unless the relevant decision is necessary in his best interests, as provided for in the Convention on the Rights of the Child adopted by the General Assembly of the United Nations on 20th November 1989(11).
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(5) Where a relevant decision is taken on grounds of public policy or public security it shall, in addition to complying with the preceding paragraphs of this regulation, be taken in accordance with the following principles-
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(a)the decision must comply with the principle of proportionality;
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(b)the decision must be based exclusively on the personal conduct of the person concerned;
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(c)the personal conduct of the person concerned must represent a genuine, present and sufficiently serious threat affecting one of the fundamental interests of society;
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(d)matters isolated from the particulars of the case or which relate to considerations of general prevention do not justify the decision;
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(e)a person's previous criminal convictions do not in themselves justify the decision.
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(6) Before taking a relevant decision on the grounds of public policy or public security in relation to a person who is resident in the United Kingdom the decision maker must take account of considerations such as the age, state of health, family and economic situation of the person, the person's length of residence in the United Kingdom, the person's social and cultural integration into the United Kingdom and the extent of the person's links with his country of origin.
The FtT considered that the appellant represented a “genuine, present and sufficiently serious threat” to the public interest as was evident from the fact that there existed a “present medium level and sufficiently serious risk to public security and safety, particularly given our finding as to the equivocal nature of the appellant's acceptance of responsibility for his offending …”
The FtT concluded by considering whether the deportation was proportionate. It said his deportation would impact upon the best interests of his brother (born in October 1997) and to a much lesser extent his half-siblings in the UK. It said it accepted his deportation would deprive him of advantages of life in the UK he would otherwise enjoy. At [25] it stated:
“There is a clear public interest in his removal, however, as appears both from the foregoing assessment of risk and from consideration of the public interest question as enacted in sections 117A to 117D of the Nationality, Immigration and Asylum Act 2002. He has not been present in the United Kingdom for a lengthy period of time. He has not shown himself to be integrated into the United Kingdom society, indeed he is not integrated into the family of his mother. He does not fall within any provisions of section 117C or 117D that might exempt him from removal. His personal circumstances are evocative of sympathy, both on his account and on account of his younger brother, who will no doubt be affected by separation from his brother and by contemplation of his brother's misfortune. There is, however, no truthful evidence presented to us as to the likely circumstances of the appellant in Nigeria. It is thus not possible to reach any finding that those circumstances would be so adverse as to outweigh the public interest in removal. The family as a whole has, we conclude, attempted to conceal or obfuscate, rather than satisfactorily to evince the personal and family circumstances of the appellant in Nigeria. It would be vain to speculate as to whether, had a satisfactory account be given of circumstances in Nigeria, a different decision on proportionality could be reached. The fact is that no such satisfactory explanation was given.”
It concluded at [26] that “[t]hese reasons so analysed show both that the appellant may be deported in accordance with the Immigration Rules and that this removal would not be disproportionate for the purposes of general article 8 protection.”
The grounds as amplified by Mr Mak were threefold. Ground 1 directed its fire at the FtT's statement in [25] that “[t]here is a clear public interest in [the appellant's] removal … as appears …from consideration of the public interest question as enacted in Sections 117A to D [of the Nationality, Immigration and Asylum Act 2002, as amended]…”
This statement was said to evince two errors: making the “public interest” a relevant consideration when it was not part of regulation 21(5); and applying sections 117A – D considerations which were not relevant considerations for the purposes of an appeal under the 2006 EEA Regulations.
It was also alleged under the rubric of “Ground 1” that the FtT had failed to take the appellant's age at the...
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