Daha Essa v The Secretary of State for the Home Department [Upper Tribunal]
| Jurisdiction | UK Non-devolved |
| Judge | The Hon Mr Justice Blake |
| Judgment Date | 03 July 2013 |
| Neutral Citation | [2013] UKUT 316 (IAC) |
| Date | 03 July 2013 |
| Court | Upper Tribunal (Immigration and Asylum Chamber) |
[2013] UKUT 316 (IAC)
Upper Tribunal
(Immigration and Asylum Chamber)
THE IMMIGRATION ACTS
THE PRESIDENT, The Hon Mr Justice Blake
UPPER TRIBUNAL JUDGE Warr
For the appellant: Mr R Khubber, instructed by Irving and Co Solicitors
For the respondent: Mr S Allan, Senior Home Office Presenting Officer
Essa (EEA: rehabilitation/integration)
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1. Pending any further clarification of the law by the Court of Justice, the relationship between residence rights and periods of imprisonment should be applied by judges of the Immigration and Asylum chambers as follows:
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i. Permanent residence within the meaning of Articles 16 to 18 of the Citizens Directive requires the claimant to be continuously lawfully resident under EU law, that is to say is residing in the host state as a qualified person or the family member of a qualified person for a period of five years.
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ii. In determining whether permanent residence is acquired voluntary absences from activities that make a person a qualified person may break the continuity of residence applying the provisions of Article 16 (3). Periods of enforced military service do not break the continuity of such residence.
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iii. Periods of penal custody following conviction and sentence and periods of remand in custody that are followed by conviction and a sentence of imprisonment do not contribute to the acquisition of permanent residence by a claimant who was a qualified person shortly before the period of detention. The claimant is not employed, self sufficient etc during these periods and imprisonment is not considered as contributing to the claimant's integration in the host state.
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iv. Periods of wrongful detention, pre-trial remand that lead to an acquittal or a non-custodial sentence, or periods of immigration detention can count towards permanent residence if the claimant qualifies before and after the detention in question.
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v. If a cumulative period of five years residence as a qualified person has been achieved by the claimant discounting periods of penal custody, it is uncertain whether such a term will break the continuity of residence for the purpose of acquiring the right of permanent residence. By reference to the developing principles relating to ten years residence, the indications are that it may not do so.
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vi. If permanent residence has been acquired but a custodial sentence is served in the period of residence between years five and ten, then the period of residence in prison may be counted towards the ten years if the person concerned remains integrated with the host state by reason of home, employment, family and social nexus.
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vii. Once a period of ten years lawful residence in the host state has been acquired, a custodial sentence does not break the continuity of residence up to the date of the decision to deport.
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2. The Court of Justice's reference in Case C-145/09 Land Baden-Wurtemberg v Tsakouridis [2011] CMLR 11 to genuine integration, should mean people who have resided lawfully in the Host state for five years and so have the right to permanent residence, rather than people who have resided for ten years.
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3. For those who at the time of determination are or remain a present threat to public policy but where the factors relevant to integration suggest that there are reasonable prospects of rehabilitation, those prospects can be a substantial relevant factor in the proportionality balance as to whether deportation is justified. If the claimant cannot constitute a present threat when rehabilitated, and is well-advanced in rehabilitation in a host state where there is a substantial degree of integration, it may well very well be disproportionate to proceed to deportation.
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4. At the other end of the scale, if there are no reasonable prospects of rehabilitation, the claimant is a present threat and is likely to remain so for the indefinite future, it cannot be seen how the prospects of rehabilitation could constitute a significant factor in the balance. Thus, recidivist offenders, career criminals, adult offenders who have failed to engage with treatment programmes, claimants with propensity to commit sexual or violent offences and the like may well fall into this category.
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5. What is likely to be valuable to a judge in the immigration jurisdiction who is considering risk factors is the extent of any progress made by a person during the sentence and licence period, and any material shift in OASys assessment of that person.
1. The background to this appeal is set out in the Ruling and Directions (Annex 1 to this determination) that the panel issued on the 24 April 2013 following the hearing of the previous day. By that ruling we concluded that the panel of the First-tier Tribunal who dismissed Mr Essa's appeal against deportation on the 18 April 2011 had made a material error of law. We indicated that the appeal would be remade by the Upper Tribunal on the 18 June 2013 with the findings of fact made by the First-tier Tribunal preserved with the exception of its decision on the risk that the appellant presented to the public and his prospects of rehabilitation. We further indicated the material that we concluded would be helpful in determining this whole appeal and directed that the Home Office respond to the appeal by 4 pm on 4 June 2013.
2. The appellant provided within the relevant time, an updated report from Mrs Davies the expert instructed in 2011, although little information had been provided by the Probation Service as anticipated in Direction 38 (b). No information of any kind had been received by the Home Office by 4pm on the 4 June 2013.
3. On the 11 June 2013 the Tribunal received a letter from Mr Allan who had previously represented the Secretary of State. It sought a short adjournment of the case listed for the 18 June 2014 because:
“The Secretary of State had decided, given the significance of this case which plainly extends beyond the circumstances of the individual appellant, to instruct Counsel to be able to satisfactorily assist the Tribunal in this matter. I apologise for the shortness of notice in this regard.”
The letter continued that counsel selected to represent the Secretary of State was not available on the 18 June 2013 and an adjournment to a later date in July, August or September was sought.
4. The appellant's solicitors understandably objected to this application that was in due course refused and has not been renewed before us on the date of the renewed hearing. We are surprised that the application was made when it was. It must have been perfectly apparent to the Secretary of State long before the 23 April 2013 that this was an important case. It represented a decision by the Court of Appeal setting aside a refusal of permission to appeal by the Upper Tribunal on the basis of a novel issue of EU law. Any such decision of the Court of Appeal raises second appeal criteria and is almost certainly bound to contain an important issue of law. The Secretary of State was represented at a contested hearing by counsel at the Court of Appeal, but chose to be represented by Mr Allan a Senior Home Office Presenting Officer before us. If it had been intended to instruct counsel in the event that Mr Allan's submission before us on the 23 April 2013 that remaking was not necessary failed to carry the day, we should have been told then and not subsequently.
5. We are further dismayed that no regard was had to our directions until very late in the day. We announced our decision on the hearing of the 23 April 2013 that the appeal would be re-made because it contained a material error of law and heard observations by both parties upon a potential time table that was set in order to bring this long standing deportation appeal to conclusion, but to give a reasonable opportunity to both sides to file all the material that we thought would be needed to enable us to properly remake this decision.
6. Written directions setting out what had already been spelt out orally were sent thereafter to remind the parties of the directions we had given orally but the timetable had started from the date on which the directions were first given on the 23 April 2013. If the Secretary of State fails persistently to adhere to directions and fails to give the Tribunal the assistance it needs on certain questions, then she cannot complain if the matter proceeds when a reasonable opportunity to provide assistance has expired.
7. As it is Mr Allan recognised that the failure to adhere to the directions meant that no fresh information had been provided by the Home Office, and no indication given of a wish to cross examine any of the witnesses called by the appellant. In the circumstances the opportunity to probe some factual issues was expressly waived.
8. We once again remind the Secretary of State of her obligation under rule 2(4) of the Upper Tribunal Rules 2008 to assist the Tribunal in pursuing the overriding objective of economical, fair and efficient disposal of these appeals in a prompt time scale. Ignoring such directions until the last possible moment is a breach of such a duty and is very likely to lead to less weight being given to the Secretary of State's case than it otherwise might have been.
9. In the event Mr Allan did produce a helpful skeleton argument the night before the hearing for which we are grateful. That skeleton made plain that it was accepted positively by the respondent that Mr Essa a Dutch national of Somali origin has achieved a right of permanent residence before the conviction giving rise to these proceedings had arisen.
10. Having regard to the oral submissions of both parties we conclude the following issues arise for determination by us:–
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i. At what point in the proceedings does the Tribunal...
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