Upper Tribunal (Immigration and asylum chamber), 2017-06-01, DA/00450/2016
| Jurisdiction | UK Non-devolved |
| Date | 01 June 2017 |
| Published date | 19 July 2017 |
| Hearing Date | 12 May 2017 |
| Court | Upper Tribunal (Immigration and Asylum Chamber) |
| Status | Unreported |
| Appeal Number | DA/00450/2016 |
Appeal Number: DA/00450/2016
Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: DA/00450/2016
THE IMMIGRATION ACTS
|
Heard at Stoke |
Decision & Reasons Promulgated |
|
on 12 May 2017 |
on 1 June 2017 |
Before
UPPER TRIBUNAL JUDGE HANSON
Between
THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Appellant
and
DOMENICO PERSICO
(anonymity direction not made)
Respondent
Representation:
For the Appellant: Mr Bates Senior Home Office Presenting Officer
For the Respondent: Mr A Hussain instructed by Trent Chambers, Nottingham.
DECISION AND REASONS
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This is an appeal by the Secretary of State against a decision of First-tier Tribunal Judge Colyer (‘the Judge’), promulgated on 4 January 2017, in which the Judge allowed Mr Persico’s appeal against the decision to deport him from the United Kingdom pursuant to the Immigration (European Economic Area) Regulations 2006.
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Although the section of the decision marked “Notice of Decision” only refers to the appeal being allowed under the EEA Regulations, at [82] the Judge also indicates that the appeal is allowed on human rights grounds. This is a reference to Article 8 ECHR.
Background
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Mr Persico was born on 2 December 1966 and is a citizen of Italy. Mr Persico appellant claims to have entered the United Kingdom in 1987 and worked in a restaurant which he left in approximately 1995, undertaking a different occupation importing and exporting clothing as a sole trader. Mr Persico claimed he was self-employed for approximately three years after which he moved to Glasgow when he met his former partner who was working with him. Mr Persico advised the Judge that he had not been absent from the UK for more than six months and had always retained an Italian passport.
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The Judge refers to the appropriate legal provisions before setting out his findings of fact from [23]. A detailed chronology is set out at [25] in the following terms:
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1980 - appellant left boarding school for catering in Italy at the age of 14 in order to be schooled in Switzerland. He also spent the summer working and staying there for three months.
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The appellant returned to Italy after his placement to complete his schooling.
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1982 - the appellant returned to Adeleoden, Switzerland for three months.
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In October 1982, aged 16, the appellant first travelled to the United Kingdom by train to study English and started living in Eastbourne, Sussex.
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On 5 November 1985, the appellant was convicted at Eastbourne Magistrates Court for cultivating cannabis and ordered to pay a £10 fine.
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1985 - the appellant returned to Italy to undertake his national service. He did this until 1987.
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1987 - the appellant returned to the United Kingdom and started employment at [a restaurant] at Kings Street, Manchester. The appellant was living at [ ] Road, Prestwick until 1989.
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1989 - the appellant resided at [ ] Court, Salford in Manchester. This property was bought by him with a mortgage provided by the Royal Bank of Scotland. The appellant also passed his driving test in the UK.
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From 1990 – the appellant was employed at [a restaurant] in Manchester for five years.
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7 April 1992 at Manchester City Magistrates he was sentenced for theft; attempt/obtaining property by deception; and failing to surrender to bail with a conditional discharge for 12 months on the first two and a fine of £10 on the third charge, plus compensation of £151.94 and costs of £25 with eight other offences taken into consideration.
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1995 – the appellant started a self-employed company trading as [ ] Import Export. This was registered and he paid VAT, etc.
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1997 – the appellant bought a property at [ ] Drive, Erskine, Glasgow. The appellant had entered a relationship with [GB].
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On 31 March 1999, at Mosley Magistrates Court, for possession of a controlled drug Class A heroin he was fined £250 with costs of £45.
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On 16 December 1999 for indecent assault he was imprisoned for three months.
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On 6 September 2001 Antonio Persico was born, the child of Mr Persico and [GB].
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In early in 2002 - the relationship with [GB] ended. The appellant moved to Nottingham living first at Greasley Drive.
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11 February 2002 the appellant formed a relationship with [SS].
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On 24 May 2002 at Glasgow Sheriff’s Court appellant was convicted of drink driving and fined £400 and disqualified from driving for three years.
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On 12 June 2002 at Forfar Sheriff’s Court for driving whilst disqualified the appellant was fined £400 and disqualified from driving for four years.
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On 13 June 2002 at South Lakeland Magistrates Court for driving with excess alcohol the appellant was disqualified for three years, fined £400 and costs of £58. For failing to surrender for bail the appellant was fined £100
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In March 2003, the appellant was imprisoned for 12 months for dangerous driving, serving his sentence at HMP Manchester and then moving to HMP Sudbury for the remainder of his sentence.
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On 28 September 2004, the appellant appeared at Oldham Magistrates Court for various offences but he was committed to the Crown Court for sentence, in custody. On 15 October 2004 at Minshull Street Crown Court for driving whilst disqualified the appellant was imprisoned for three months, for failing to stop when required, using a vehicle whilst uninsured is no separate penalty, for dangerous driving the appellant was imprisoned for nine months and disqualified from driving for five years until extended test is passed.
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In 2004 the appellant contracted Hepatitis C and became in receipt of State benefits due to being unable to work. The appellant received treatment from the NHS.
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On [ ] 2006 [BP] was born to the appellant and [SS].
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On 10 March 2008 at Glasgow Sheriff’s Court, for sending offensive/indecent/obscene/menacing messages the appellant was fined £250.
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In 2009 the appellant’s relationship with [SS] ended.
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Of 5 January 2011 at Nottingham Magistrates Court the appellant was sentenced for driving whilst disqualified for which he received a community order, disqualified from driving for six months and until an extended test was passed together with an unpaid work requirement.
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March 2013 [GB] passed away.
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In 2015 the appellant started treatment for his medical condition including a clinical trial at the Queens Medical Centre, Nottingham.
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On 16 December 2015 the appellant was convicted of the production of class B controlled drugs (Cannabis) at Nottingham Crown Court.
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On 27 January 2016 the appellant was sentenced to 15 months imprisonment.
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The Judge was provided with a copy of the sentencing remarks of His Honour Judge Rafferty QC from which the following quote is set out at [27] of the decision:
“Dominic Persico, it’s all very well asking the court to accept everything you say but tragically, when you tell such enormous lies to the police, it’s not a good place for you to start. I have absolutely no doubt that you were setting out - and indeed had set out - when a serious commercial cannabis growing enterprise and if there had only been one crop, this was the first of them, you had not wasted your time equipping the second room to such an extent that it was not going to happen and frankly, for anyone to suggest that is quite simply losing sight of the truth. You maintained to the police that this was all for your own use. Plainly there was far too much cannabis for that. Therefore, inevitably, you were producing it to sell. The world and his wife, seemingly, thinks that growing cannabis in this country and sending it on is permitted. It is not. Cannabis is a pernicious drug. People who take the risk come - as you have - of producing it commercially can only expect one outcome, and that’s imprisonment. I give you full credit for your plea. I reduce the sentence that I would otherwise have imposed. I sentence you on the basis that this is a category 3 case. I discount the maximum sentence from three years to two and a half years because of the fewer number of plants involved than the maximum in that category. I give you some further deduction. So the maximum sentence for you had you had a trial would have been two years imprisonment. You get a third credit because you pleaded guilty at the first opportunity. So the sentence is 15 months imprisonment."
Error of law
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In relation to the level of protection available to Mr Persico in opposing the deportation decision made against him as a result of his criminality, the...
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