Terzaghi v Secretary of State for the Home Department
| Jurisdiction | England & Wales |
| Judge | Underhill,Moylan,Dingemans LJJ |
| Judgment Date | 20 November 2019 |
| Neutral Citation | [2019] EWCA Civ 2017 |
| Date | 20 November 2019 |
| Court | Court of Appeal (Civil Division) |
[2019] EWCA Civ 2017
COURT OF APPEAL
Underhill (Vice President of the Court of Appeal (Civil Division)), Moylan and Dingemans LJJ
Ms A Patyna instructed by Fursdon Knapper Solicitors, for the Claimant;
Ms C van Overdijk instructed by the Government Legal Department, for the Secretary of State.
AA (Iraq) v Secretary of State for the Home Department [2017] EWCA Civ 944; [2018] 1 WLR 1083; [2017] Imm AR 1440; [2018] INLR 1
B v Land Baden-Württemberg; Secretary of State for the Home Department v Vomero (Cases C-316/16 and C-424/16); [2019] QB 126; [2018] 3 WLR 1035; [2018] 3 CMLR 24; [2018] Imm AR 1145; [2018] INLR 399
British Council v Jeffery [2018] EWCA Civ 2253
K v Staatssecretaris van Veiligheid en Justitie (Case C-331/16); [2019] 1 WLR 1877; [2018] 3 CMLR 26; [2018] INLR 693
Onuekwere v Secretary of State for the Home Department (Case C-378/12); [2014] 1 WLR 2420; [2014] 2 CMLR 46; [2014] Imm AR 551; [2014] INLR 613
R (on the application of Jones) v First-tier Tribunal (Social Entitlement Chamber) [2013] UKSC 19; [2013] 2 AC 48; [2013] 2 WLR 1012; [2013] 2 All ER 625
Secretary of State for the Home Department v MG (Portugal) (Case C-400/12); [2014] 1 WLR 2441; [2014] 2 CMLR 40; [2014] Imm AR 561; [2014] INLR 670
UT (Sri Lanka) v Secretary of State for the Home Department [2019] EWCA Civ 1095
VOM (Error of law – when appealable) [2016] UKUT 410 (IAC); [2017] Imm AR 117; [2017] INLR 464
Warsame v Secretary of State for the Home Department [2016] EWCA Civ 16; [2016] 4 WLR 77; [2016] 2 CMLR 28; [2016] Imm AR 645; [2016] INLR 619
Appeals (Excluded Decisions) Order 2009, Article 3(m)
British Nationality Act 1981, section 40A Immigration (European Economic Area) Regulations 2006, regulations 21 & 26
Tribunals, Courts and Enforcement Act 2007, sections 11, 12 & 13
Evidence — assessment of evidence — disagreement with FtT's findings of fact — no error of law — jurisdiction — Immigration and Asylum Chamber — grounds of appeal arising from UT's error of law decision — procedure and process — deportation — ten years continuous residence — enhanced protection — regulation 21 of the 2006 Regulations — integrative links — periods of imprisonment
The Claimant, an Italian citizen, entered the United Kingdom in 2001 as a minor with his parents. In February 2015, he was sentenced to a total of four years imprisonment for a series of criminal offences. The Secretary of State for the Home Department decided to deport the Claimant in 2016. The Claimant appealed against the deportation order on the ground that he had lived continuously in the United Kingdom for over ten years and was therefore entitled to enhanced protection against deportation under regulation 21 of the Immigration (European Economic Area) Regulations 2006 (“the 2006 Regulations”). Pursuant to regulation 21(4) a decision to deport could not be taken except on imperative grounds of public security. Under regulation 21(6) the length of the Claimant's residence and his social and cultural integration into the United Kingdom were to be considered.
The First-tier Tribunal (“FtT”) allowed the Claimant's appeal. It heard oral evidence from the Claimant and his family and considered various reports and a letter from his GP regarding his depression, addiction and suicide attempts. The FtT held that the Claimant was entitled to enhanced protection because he had been continuously resident in the United Kingdom for ten years before any period of imprisonment and the periods of imprisonment had not broken the integrative links previously forged. The Secretary of State appealed to the Upper Tribunal (“UT”).
The UT held that the FtT had erred in law by finding that the Claimant had integrated into society and that the integrative links had not been broken. It found that the FtT had given insufficient weight to the GP's letter and other factors suggesting that his integration with society had been limited. It set aside the FtT's decision and adjourned the appeal to a further hearing in the UT. At the second hearing, the UT held that, although the Claimant had lived in the United Kingdom for ten years before his period of imprisonment, he had not integrated into society. Therefore, he was not entitled to enhanced protection under regulation 21(4) and the deportation order should be restored. The UT's second decision expressly stated that it should be read together with the first UT decision.
The Claimant appealed on the ground that the UT was wrong in its first decision to find that the FtT had erred in law. The Court of Appeal had to consider whether it had jurisdiction to hear the grounds of appeal arising from a first decision of the UT where the UT had disposed of the appeal in a second decision, and whether the UT was wrong to find that the FtT had erred in law in its evaluation of the Claimant's integrative links with the United Kingdom.
Held, allowing the appeal:
(1) The first UT decision was the basis on which the second decision was carried out. The Claimant could, if he obtained permission, pursue grounds of appeal which arose from the first or second decisions. Any other conclusion would be contrary to the intended scheme of appeals because it would require parties who considered that they had a ground of appeal to challenge a first decision of the UT by attempting to appeal that decision to the Court of Appeal before any further decision had been made, in case the ground of appeal was later characterised as a procedural failure. Such a result could not have been the intention of Parliament when it enacted sections 12 and 13 of the Tribunals, Courts and Enforcement Act 2007 which provided that a preliminary decision was excluded from the right of appeal: VOM (Error of law – when appealable)[2016] UKUT 410 (IAC) applied (paras 41 – 42).
(2) There was no error of law in the FtT's decision. The FtT properly analysed and set out the applied principles of law on integration. There was in reality a disagreement by the UT with findings of fact made by the FtT which the UT thought were generous to the Claimant in the light of the contents of the GP's letter. Such a disagreement did not amount to an error of law entitling the UT to set aside the FtT's decision. Even if the UT had jurisdiction to hear an appeal on the facts, it should not have set aside the FtT's decision. The FtT had heard evidence from the Claimant, his father and brother. It had, in a detailed judgment, referred to the relevant facts. What was in issue between the FtT and the UT was the weight to be given to a particular piece of evidence. That was not a principled basis for interfering with a finding of fact. The FtT's judgment was restored (paras 46 – 47).
Lord Justice Dingemans:
[1] The appeal raises, among other issues, a point of practice about the jurisdiction of the Court of Appeal to hear an appeal where the Upper Tribunal disposes of an appeal in two separate decisions.
[2] The appeal is against a decision dated 11 July 2018 by the Upper Tribunal (Immigration and Asylum Chamber) (“the Upper Tribunal”) given by Mr Justice Edis and Deputy Upper Tribunal Judge McGeachy. The Upper Tribunal had allowed an appeal from, and set aside the decision dated 8 February 2018, of the First-tier Tribunal (Immigration and Asylum Chamber) (“the FTT”) given by FTT Judge Dean (“the FTT Judge”) in its first and earlier decision dated 16 April 2018. The FTT had allowed an appeal by the Appellant Michele Terzaghi (“Mr Terzaghi”) against a decision dated 19 May 2016 made by the Respondent Secretary of State for the Home Department (“the Secretary of State”) to deport Mr Terzaghi, a national of Italy, to Italy. In its second and later decision dated 11 July 2018 the Upper Tribunal restored the decision of the Secretary of State to deport Mr Terzaghi.
[3] Mr Terzaghi is a national of Italy. He was born on 13 April 1992 and is now aged 27 years. He was born in Kenya in 1992 and his mother is a national of both Kenya and Italy and his father is an Italian national. Mr Terzaghi lived in Kenya until 1994 when he was 2 years old. Mr Terzaghi then lived in Italy until 1999 when he was 7 years old. Mr Terzaghi then lived in Tanzania until 2001 when he was 9 years old. Mr Terzaghi's parents and Mr Terzaghi then moved to the United Kingdom so that Mr Terzaghi could attend English speaking schools and he has lived in the United Kingdom since 2001. He attended school in the United Kingdom from September 2001 and left full-time education in July 2008, aged 16 years.
[4] Mr Terzaghi has therefore been living in the United Kingdom since 2001. He passed examinations and obtained qualifications. From the age of about 15 years Mr Terzaghi abused controlled drugs and committed various criminal offences. In 2009, when he was aged 16 years, Mr Terzaghi was convicted of taking a motor vehicle without consent, and driving without a licence or insurance. He received a referral order of 6 months and his driving licence was endorsed. In 2012, when he was aged 19 years, Mr Terzaghi was convicted at Cambridgeshire Magistrates' Court of a dwelling house burglary and theft. He was committed to the Crown Court and sentenced to 6 months imprisonment in a Young Offenders Institution. In February 2015, when he was aged 22 years, he was convicted of seven offences and sentenced on 1 May 2015 to a total of 4 years imprisonment. The seven offences were committed on 1 November 2014 and included two counts of wounding or inflicting grievous bodily harm contrary to section 20 of the Offences Against the Person Act 1861. The circumstances were that Mr Terzaghi had been affected by his voluntary consumption of drugs and started behaving bizarrely. His parents called the police and Mr Terzaghi, who had picked up a knife, ran away from the police, slashed a police...
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