Gheorghiu (R 24AA EEA Regs - relevant factors)
| Jurisdiction | UK Non-devolved |
| Judge | The Hon Mr Justice Blake,Goldstein |
| Judgment Date | 18 November 2015 |
| Neutral Citation | [2016] UKUT 24 (IAC) |
| Court | Upper Tribunal (Immigration and Asylum Chamber) |
| Date | 18 November 2015 |
[2016] UKUT 24 (IAC)
Upper Tribunal
(Immigration and Asylum Chamber)
THE IMMIGRATION ACTS
The Hon Mr Justice Blake
UPPER TRIBUNAL JUDGE Goldstein
For the Appellant: Ms A Fijiwala, Home Office Presenting Officer
For the Respondent: Mrs B Hamid counsel instructed by SBG Solicitors
Gheorghiu (reg 24AA EEA Regs — relevant factors)
When considering whether or not to suspend certification of EEA appeals pursuant to regulation 24AA of the Immigration (European Economic Area) Regulations 2006, the decision-maker should take into account inter alia: (i) the status of the EEA national; (ii) the impact of removal on family members; (iii) evidence of continuing risk to the public; and (iv) the role oral evidence may play.
This is the Secretary of State's appeal from a decision of FtT Judge Trevaskis promulgated on 27 April 2015. He allowed the respondent's appeal from a decision of the Secretary of State to deport him pursuant to the Immigration (EEA) Regulations 2006.
Mr Gheorghiu is a citizen of Romania who was born on 9 December 1968 and is now aged 46. He married Mihaela Gheorghiu on 14 February 1995. The couple have three children now aged 20, 19 and 15.
Mrs Gheorghiu gave evidence before the FtT and was accepted as a reliable witness. She stated that her husband first came to the United Kingdom in August 2002. It is common ground that he entered illegally and remained without leave. On 1 st January 2007, Romania became part of the EU and transitional arrangements were made for workers. Mrs Gheorghiu states that her husband was legally working as a builder for various contractors on a self employed basis since January 2007 and supported the family back in Romania as the sole breadwinner.
In her witness statement prepared for the appeal she states that she will do her best to obtain documentary evidence of this, in her husband's absence. On the 18 April 2015 Mr Gheorghiu's solicitors submitted a bundle of self assessment tax returns for the Tax Years from 4 April 2010 to 2014 and the provisional figures for 2015. The judge accepted the evidence that he was working and supporting his family, although we observe that since that was based on Mrs Gheorghiu's evidence this could only have been a reference to the period from January 2007 onwards.
Mrs Gheorghiu and the three children of the family came to the United Kingdom to live with their husband/father between 2013 and September 2014. The family live in rented accommodation in the UK. Mrs Gheorghiu is in employment as is the eldest daughter; the younger two children are at college and school.
In November 2007, Mr Gheorghiu was convicted of driving a motor vehicle with excess alcohol, was fined and disqualified from driving for 20 months. There have been no subsequent convictions.
It seems that in June 2014 the Secretary of State became aware that Mr Gheorghiu had a criminal record in Romania. In 1990 he was convicted of the offence of rape and sentenced to 6 years imprisonment. Between 2001 and March 2002 he was convicted on three occasions of forestry offences, cutting timber without a licence, and received custodial sentences on the last two occasions.
On 28 January 2015, the Secretary of State made the decision to deport Mr Gheorghiu, essentially because of the serious nature of his overseas convictions, notably the conviction for rape. It was assessed that he posed a present threat to public policy and his deportation was proportionate under regulation 21. It was also decided to certify his case under regulation 24AA of the Immigration (EEA) Regulations 2006 (the Regulations). He was detained and subsequently removed in March 2015.
An application that was made to the Secretary of State under regulation 29AA of the Regulations to attend the appeal was unsuccessful. The appeal accordingly proceeded in his absence with Mrs Gheorghiu giving evidence. The case for the Secretary of State was that the rape conviction meant that the respondent's presence in the UK represented a genuine, present and sufficiently serious threat affecting one of the fundamental interests of society. The case for Mr Gheorghiu was that his presence in the UK did not represent such a threat; his criminal conduct was long ago; he had since married and supported his family; he had led a law abiding life in the UK since 2002 with the exception of the drink drive conviction and that was not sufficiently serious in itself to engage public policy grounds for removal or suggest recidivism.
The judge noted that he had no information from Romania about the nature of the offence, or rehabilitation in prison. He concluded that as the offence of rape was committed 25 years ago and there was no evidence of subsequent violent or sexual offending, he represented at worst a very low risk of re-offending. He was not satisfied that the drink drive conviction was a persuasive indicator of a propensity to reoffend in a sexual or violent manner.
He considered the requirements of regulation 21 and made a proportionality evaluation on the evidence before him. He concluded at [49] as follows:
“The fact that the appellant has committed previous offences is not a matter which can solely justify deportation; there is no evidence which leads me to find that he is a genuine, present and sufficiently serious threat to one of the fundamental interests of society; his present conduct in the last seven years, has been that of a law abiding and working member of United Kingdom society, exercising treaty rights as a worker. I do not find that deportation is justified on imperative grounds of public security, because there is no evidence which shows that he represents a genuine, present and sufficiently serious threat to public security. The threshold of imperative grounds is a high level of justification for deportation, and I find that the decision made by the respondent in this case has not reached that level”.
(emphasis supplied)
The Secretary of State appeals with leave of the FtT judge on the grounds that the judge fell into error in the reference made to imperative grounds in the passage highlighted above.
We agree that the judge fell into error in this respect. He may have been misled by reading the words of regulation 21 (4) (a) (‘has resided in the United...
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