Upper Tribunal (Immigration and asylum chamber), 2019-03-05, DA/00768/2017
| Jurisdiction | UK Non-devolved |
| Date | 05 March 2019 |
| Published date | 12 April 2019 |
| Hearing Date | 29 January 2019 |
| Court | Upper Tribunal (Immigration and Asylum Chamber) |
| Status | Unreported |
| Appeal Number | DA/00768/2017 |
DA/00768/2017
Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: DA/00768/2017
THE IMMIGRATION ACTS
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Heard at Field House |
Decision & Reasons Promulgated |
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On 29 January 2019 |
On 5 March 2019 |
Before:
THE HONOURABLE MR JUSTICE KNOWLES
UPPER TRIBUNAL JUDGE GILL
Between
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The Secretary of State for the Home Department
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Appellant |
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And
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Mrs. Natacha [N] (ANONYMITY ORDER NOT MADE) |
Respondent |
Representation:
For the Appellant: Mr T Wilding, Senior Presenting Officer.
For the Respondent: Ms C Robinson, of Counsel, instructed by Bindman's LLP.
DECISION AND REASONS
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This is an appeal by the Secretary of State with the permission of the First-tier Tribunal (FtT) against the decision of the First-tier Tribunal (Judge Herbert) promulgated on 30 October 2018 allowing the appeal of the Respondent, Natacha [N], against the Secretary of State’s decision of 20 December 2017 to make a deportation order for her deportation to Bulgaria.
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For the following reasons we dismiss the Secretary of State’s appeal and uphold the decision of the FtT.
Background
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The Respondent is a Bulgarian national. She arrived in the UK in 1997, prior to Bulgaria joining the European Union on 1 January 2007. She was dependent on her mother’s asylum claim, which was refused on 10 January 1998.
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On 9 January 2003 the Respondent was issued with an EEA residence card valid until 12 November 2007. That was as the spouse of an EEA national, her husband being Portuguese. On 4 March 2004, she was granted indefinite leave to remain as the dependent of her mother.
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Bulgaria joined the EU on 1 January 2007.
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On 21 April 2016 the Respondent was convicted of kidnapping and false imprisonment at Isleworth Crown Court. She had been arrested and remanded in custody for this offence in 2015. On 13 May 2016 she was sentenced to seven years imprisonment (which was reduced on appeal to 6 years in prison). The Respondent was involved with her sister, [RT], in the kidnapping, false imprisonment and robbery of a young woman whom we shall call T. Ms [RT] and T were involved in a dispute over a young man which led to what the judge described as ‘a vicious, wicked and undoubtedly premeditated attack upon an innocent young woman’, that is to say, T. A plan was hatched to kidnap and assault T. The judge said that the Respondent had been ‘instrumental’ in the creation of the plan and that she had demonstrated ‘a cold ruthlessness in relation to the creation of the plant itself’. T was ambushed when she was returning from work one evening and forced into a car. Then, during a period of about an hour and a half, she was punched and beaten in the car. She was then removed from the car and assaulted with a piece of wood, possibly a baseball bat. She suffered injuries to her face and body which took her some time to recover from. She also had to have an operation on her back. This was, as the judge said, a serious attack.
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Following her sentencing, on 23 June 2016 the Respondent was served with a notice of liability to deportation (ICD 4932). She submitted representations in response, however on 20 December 2017 the Secretary of State took the decision to deport the Respondent, which was served on the same date (the Decision Letter).
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As the citizen of an EEA state the decision to deport the Respondent was made under the Immigration (European Economic Area) Regulations 2016 (SI 2016/1052) (the 2016 Regulations). The decision letter indicated that the Secretary of State had concluded that the Respondent had not obtained permanent residence in accordance with the 2016 Regulations because there was no evidence of her exercising treaty rights for five years in accordance with the Regulations. The Secretary of State said, therefore, that consideration had been given to whether her deportation was justified on grounds of public policy or public security, in accordance with reg 23(6)(b) and reg 27(1) (as opposed to the test of serious grounds of public policy and public security which would have applied had the Secretary of State been satisfied about the five year condition, per reg 27(3)). The Secretary of State also said he did not accept that the Respondent had been continuously resident in the UK for 10 years, and so consequently consideration had not been be given to whether her deportation was justified on imperative grounds of public security (which is the applicable test for such a person pursuant to reg 27(4)).
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The Secretary of State’s conclusion in relation to the 2016 Regulations was as follows:
“You have committed a serious criminal offence in the United Kingdom and, as explained above, the professional assessment is that there is a real risk that you may re-offend in the future. You have made representations and account has been taken of these. Nevertheless, for the reasons set out above, and in particular the genuine, present and sufficiently serious threat you pose to one of the fundamental interests of United Kingdom society, it is considered that your deportation is justified on grounds of public policy, public security or public health in accordance with regulation 23(6)(b). Your personal circumstances have been considered but our view is that, given the threat you pose, the decision to deport you is proportionate and in accordance with the principles of regulations 27(3) and (6).”
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The Secretary of State went on to reject the Respondent’s contention that deportation would be incompatible with her rights under Article 8 of the European Convention on Human Rights.
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The Decision Letter therefore concluded:
“Your representations made pursuant to the [2016 Regulations] and your human rights claim are hereby refused and it has been decided to deport you in accordance with regulation 23(6)(b) and regulation 27 of the [2016 Regulations].”
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The Respondent was released on licence on 29 October 2018 and is due to remain on licence (and thus liable to recall) until 2021.
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The Respondent appealed in time to the FtT against the Secretary of State’s decision.
The decision of the FtT
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On the appeal, and contrary to the conclusion in the Decision Letter, the Secretary of State accepted that the Respondent did have permanent residence because she had resided in the UK in accordance with the 2016 Regulations for a continuous period of five years. That concession was based upon evidence submitted by the Respondent on the appeal. Accordingly, the Secretary of State accepted that the decision to deport the Respondent could only be justified according to the heightened standard of ‘serious grounds of public policy and public security’ contained in reg 27(3), and thus that the standard that had been applied in the Decision Letter of public policy and public security simpliciter was not the correct test. However, the Secretary of State did not accept that the Respondent had 10 years or more continuous residence counting backwards from the date of the deportation decision by reason of her imprisonment between 2016 and 2018, and therefore did not accept that deportation could only be justified on ‘imperative grounds of public security’ in accordance with reg 27(4): FV (Italy) v Secretary of State for the Home Department; B v Land Baden-Württemberg [2018] 3 WLR 1035 (CJEU).
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Against that background, the Respondent submitted on the appeal that she did not pose any risk to the public. She relied on her family circumstances, including her supportive children and husband, and evidence from a social worker that she posed a low risk of re-offending. She had addressed her offending behaviour positively and there had been no disciplinary matters recorded against her in prison. She relied on evidence that to deport her to Bulgaria would be damaging for her children (aged 7 and 11 at the date of the decision to deport her) for whom she had been the primary carer until her imprisonment.
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The Secretary of State submitted in response that the test in reg 27(3) was satisfied because of the seriousness of the offence of which the Respondent had been convicted, the punishment which had been imposed, and the medium risk of harm to the public and unknown adults which she had been assessed as posing. He submitted that consideration of the factors in reg 27(5) and those in Sch 1 justified deportation according to the test in reg 27(3) in light of the Respondent’s offending.
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In his decision the judge directed himself that the burden of proof lay upon the Respondent on the balance of probabilities. He also directed himself that the relevant date was the date of the decision (i.e., 20 December 2017) because this was an in-country appeal.
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At [59] et seq the judge set...
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