Upper Tribunal (Immigration and asylum chamber), 2024-09-06, UI-2024-002446

IN THE UPPER TRIBUNAL
IMMIGRATION AND ASYLUM CHAMBER
Case No: UI-2024-002446

First-tier Tribunal No: HU/02029/2023

THE IMMIGRATION ACTS

Decision & Reasons Issued:
On 6 September 2024

Before

UPPER TRIBUNAL JUDGE CANAVAN
UPPER TRIBUNAL JUDGE MAHMOOD
UPPER TRIBUNAL JUDGE LOUGHRAN

Between

JAN WATROBA
(NO ANONYMITY ORDER MADE)
Appellant
and

SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: Mr E. Nicholson, instructed by HCR Legal LLP
For the Respondent: Ms A. Ahmed, Senior Home Office Presenting Officer

Heard at Field House on 15 August 2024


DECISION AND REASONS
1. The respondent made a decision to deport the appellant on 28 January 2023 because of a conviction for attempted robbery for which he was sentenced to 4 years imprisonment. The appellant is a Polish citizen who was granted Indefinite Leave to Remain (ILR) under the European Union Settlement Scheme (EUSS). The decision to deport attracted a right of appeal under the Immigration (Citizens’ Rights Appeals) (EU Exit) Regulations 2020 (‘the CRA Regulations 2020’). There is no evidence before this tribunal to suggest that the appellant lodged an appeal or that an appeal has been determined in relation to the decision to deport.
2. The appellant made representations to the respondent on human rights grounds. The respondent refused the human rights claim in a decision dated 02 October 2023. The index offence relied on by the respondent was one that took place after the date that the United Kingdom exited from the European Union (31 December 2020). For this reason, the respondent considered the application with reference to the domestic legal framework relating to deportation. The appellant was subject to automatic deportation under the UK Borders Act 2007 (‘UKBA 2007’). Because he had received a sentence of at least 4 years imprisonment, the exceptions to deportation contained in sections 117C(4)-(5) of the Nationality, Immigration and Asylum Act 2002 (‘NIAA 2002’) were not available to him (although might form part of an overall assessment). The appellant needed to show that there were ‘very compelling circumstances’ to outweigh the public interest in deportation with reference to section 117C(6) NIAA 2002. The decision attracted a right of appeal under section 82 NIAA 2002.
3. First-tier Tribunal Judge Buckwell (‘the judge’) dismissed the appeal in a decision sent on 18 April 2024. The judge summarised the background to the appeal, including the respondent’s reasons for refusing the human rights claim [4]-[16]. The judge went on to set out the evidence and submissions at the hearing in some detail [21]-[70]. Under the heading ‘Legal Framework and Findings’ the judge then set out his reasons for the decision [72]-[87].
4. The judge noted that the appellant argued that he met the exception to deportation contained in section 33 UKBA 2007 i.e. where removal of a ‘foreign criminal’ would breach a person’s rights under the European Convention. The appellant relied on the right to private and family life under Article 8 of the European Convention. The judge went on to identify that Part 5A NIAA 2002 was the relevant statutory provision governing the assessment of Article 8. In particular, section 117C related to the assessment of Article 8 in the context of the deportation of foreign criminals [72].
5. The judge set out the terms of Exception 1 (private life) contained in section 117C(4) NIAA 2002 [72]. He noted that all three elements needed to be met before the exception was satisfied These were (i) that the person has been lawfully resident in the United Kingdom for most of their life; (ii) that the person is socially and culturally integrated in the...