Upper Tribunal (Immigration and asylum chamber), 2018-12-18, DA/00235/2017
| Jurisdiction | UK Non-devolved |
| Date | 18 December 2018 |
| Published date | 21 January 2019 |
| Hearing Date | 13 November 2018 |
| Court | Upper Tribunal (Immigration and Asylum Chamber) |
| Status | Unreported |
| Appeal Number | DA/00235/2017 |
Appeal Number: DA/00235/2017
Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: DA/00235/2017
THE IMMIGRATION ACTS
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Heard at Field House |
Decision & Reasons Promulgated |
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On 13 November 2018 |
On 18 December 2018 |
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Before
UPPER TRIBUNAL JUDGE CANAVAN
Between
VOJTECH [H]
Appellant
and
THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent
Representation:
For the appellant: No appearance
For the respondent: Mr I. Jarvis, Senior Home Office Presenting Officer
DECISION AND REASONS
1. The appellant appealed the respondent’s decision dated 05 April 2017 to remove him from the UK on public policy grounds under regulation 27 of the Immigration (European Economic Area) Regulations 2016 (“the EEA Regulations 2016”).
2. First-tier Tribunal Judge Buckwell allowed the appeal in a decision promulgated on 05 December 2017. In a decision promulgated on 16 March 2018 the Upper Tribunal found that the First-tier Tribunal erred in failing to give adequate reasons for concluding that the highest ’10 years’ continuous residence’ threshold for removal applied and set aside the decision (annexed). The Tribunal outlined the law as it then stood in relation to the ’10 year’ assessment and made clear directions to the appellant explaining the issues that he would need to address by way of evidence at the resumed hearing. The appeal was listed for a resumed hearing on 11 June 2018. The appellant failed to comply with the previous directions. The parties agreed that an adjournment was necessary for the appellant to formulate his case in a way that the respondent could understand and respond to. Further directions were made for the appellant to serve a detailed witness statement and a chronology of events for the Upper Tribunal to assess whether he had acquired a right of permanent residence in the UK for the purpose of the ’10 years’ continuous residence’ test. By that stage, the Court of Justice of the European Union had issued its judgment in B v Land Baden-Würtemberg and SSHD v Vomero [2018] EUECJ C-316/16 confirming that permanent residence was a prerequisite to the highest level of protection against expulsion.
3. On 30 July 2018 the appellant’s legal representatives, TNA Solicitors, confirmed that they were “withdrawing from representing” the appellant. After a further adjournment, the appeal was listed for hearing on 13 November 2018. There was no appearance by or on behalf of the appellant. I noted that he had attended previous hearings. There was no message or correspondence from the appellant. There was no adjournment request. I was satisfied that the notice of hearing was sent to his last known address. Mr Jarvis also made enquiries and confirmed that the Home Office notes recorded the following information:
“Subject has attended Becket House today with a fitness for work statement, reason given is mental health for 8 weeks.
I telephoned [name] in the absence of [name] to check if it was ok for the subject to Voluntarily Depart due to being DO signed, and he was of the opinion that this was ok, subject is an EEC national.
Subject will be departing Dover Eastern docks at 13:45 on 10 November 2018 by Blueline Bus Ref: BL47051YX Praha - UAN Florenc”
4. The notes indicate that the appellant may have left the country on 10 November 2018. An appeal under the EEA Regulations 2016 is not treated as abandoned if the appellant leaves the UK. However, in light of this information I was satisfied that it was unlikely that the appellant would attend the hearing and that there were no grounds for an adjournment. I was satisfied that I could proceed to hear the appeal in his absence.
5. In the absence of the appellant or any other witnesses, I have considered the documentary evidence contained in the three bundles served on his behalf during the course of these proceedings, as well as the documents contained in the Home Office bundle.
Decision and reasons
6. The appellant and his sister gave evidence before the First-tier Tribunal and were found to be generally credible witnesses. The appellant prepared a witness statement in support of the appeal before the First-tier Tribunal. However, the appellant’s statement is general in nature and does not contain detail on relevant issues, which is why the Upper Tribunal directed him to produce a more detailed statement. The appellant failed to comply with the direction. He did not attend the hearing to give evidence about his life in the UK. I must determine the appeal on the limited evidence currently before the Upper Tribunal.
Level of protection
7. Regulation 27 of the EEA Regulations 2016 provides three levels of protection against expulsion on public policy grounds. The respondent can make a ‘relevant decision’ to expel an EEA national from the UK on “grounds of public policy, public security or public health”. The decision must comply with the principle of proportionality. It must be based exclusively on the personal conduct of the person concerned, which must represent a genuine, present and sufficiently serious threat affecting one of the fundamental interests of society. Before taking a ‘relevant decision’ the respondent must take account of considerations such as the age, state of health, family, length of residence and the person’s economic situation as well as the extent of his links to his country of origin. This is the minimum level of protection against expulsion.
8. In the case of a person who has acquired a right of permanent residence the respondent can only expel the person if there are “serious grounds of public policy, public security or public health”. In the case of a person who has resided in the UK for a continuous period of at least 10 years prior to the ‘relevant decision’ the respondent can only expel the person if there are “imperative grounds of public security”.
9. The Court of Justice of the European Union has made clear that permanent residence is a prerequisite to establishing a continuous period of 10 years’ residence to benefit from the highest level of protection from expulsion: see Vomero. In assessing the 10-year period it is also necessary to consider whether any integrating links with the UK might have been broken by periods of imprisonment. One can see from this synopsis of the law that the highest level of protection against expulsion is not available simply because a person has lived in the UK for a chronological period of 10 years. The protection against expulsion is directly linked to the extent that a person has established rights under EU law and the extent of their integrating links to the UK.
10. The appellant is a Slovakian national. The exact date when he entered the UK is unclear, but he says that he entered with his parents in 2005 when he was around 14 years old. It is reasonable to infer that, at that age, the appellant was likely to be living with his parents. At that time, as Slovakian nationals, his parents were required to register under the Accession State Worker Scheme. There is evidence to show that the appellant’s parents registered under the scheme in 2005. There is some evidence in the form of P60 and P45 certificates to show that his parents may have carried out some work during 2005-2006 but there is no evidence to indicate a consistent pattern of work thereafter. A letter from the appellant’s mother to the Secretary of State indicates that his father may have worked until 2008 but there is no evidence to support this statement. The appellant’s mother asserted that he gave up work to care for her but there is little or no evidence to show the extent of her condition or to show whether it was sufficiently serious to show a permanent incapacity to work. The weight of the evidence indicates that it is likely that the appellant’s parents have been largely dependent on state support for most of their time in the UK.
11. I have considered whether the appellant acquired a right of permanent residence in his own right. The appellant says that he went to school and then attended Thanet College. He has produced evidence from the school to confirm that he attended The Royal Harbour Academy from 2006-2008. Educational certificates from Thanet College indicate that he was studying there from 2009-2011. The appellant was studying for a continuous period of five years but there is insufficient evidence to show that he acquired a permanent right of residence on this basis. To acquire a right of permanent residence the appellant would need to show that he lived in the UK “in accordance with” the relevant EEA Regulations for a continuous period of five years. An EEA student is only a ‘qualified person’ for the purpose of the EEA Regulations if he has comprehensive sickness insurance and is not a burden on the social assistance system. There is no evidence to show that the appellant met those requirements during the period from 2006-2011 when he was studying in the UK. There is no evidence to show that the appellant has worked in the UK or that he has resided in accordance with the EEA Regulations as a worker for the required period. For these reasons I conclude that the appellant has failed to show that he acquired a right of permanent residence in his own right.
12. I have considered whether the appellant might...
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