Upper Tribunal (Immigration and asylum chamber), 2016-02-01, DA/00724/2014
| Jurisdiction | UK Non-devolved |
| Date | 01 February 2016 |
| Published date | 19 October 2016 |
| Hearing Date | 30 November 2015 |
| Court | Upper Tribunal (Immigration and Asylum Chamber) |
| Status | Unreported |
| Appeal Number | DA/00724/2014 |
Appeal Number: DA/00724/2014
Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: DA/00724/2014
THE IMMIGRATION ACTS
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Heard at Field House |
Decision & Reasons Promulgated |
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On 30 November 2015 |
On 1 February 2016 |
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Before
UPPER TRIBUNAL JUDGE GLEESON
Between
THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Appellant
and
A C
[ANONYMITY ORDER MADE]
Respondent
Representation
For the appellant: Mr N Bramble, a Senior Home Office Presenting Officer
For the respondent: Mr M Moriarty, counsel instructed by Luqmani Thompson Solicitors
DECISION AND REASONS
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The Secretary of State appeals with permission against the decision of the First-tier Tribunal allowing the claimant’s appeal against her decision to remove him to Italy, his country of origin. The Secretary of State’s decision to remove him was made pursuant to Regulation 21 of the Immigration (European Economic Area) Regulations 2006 (as amended).
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This appeal has been heard in the First-tier Tribunal on two occasions, on 25 November 2014 before First-tier Tribunal Judge Widdup and Dr C Winstanley, a Non-Legal Member. That decision was set aside because the panel erroneously applied the highest level of protection pursuant Regulation 21(4).
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The appeal was heard again on 12 June 2015 before First-tier Tribunal Judge Grant and Mrs S Hewitt JP, a Non-Legal Member. The Secretary of State’s challenge is that the First-tier Tribunal’s reasons are inadequate. Permission to appeal was granted on that basis.
Error of law decision
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There is a material error of law in the First-tier Tribunal’s decision in that its reasoning is inadequate, as Mr Moriarty for the claimant conceded at the hearing. The question of whether the claimant is entitled to the imperative grounds level of protection in Regulation 21(4) remains in issue.
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By consent, the First-tier Tribunal decision will be set aside. The decision will be remade, in the light of any written submissions received from the parties within 7 days of the error of law hearing, with particular reference to the issue of the appropriate level of protection and the additional material submitted by the appellant in Bundle B.
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It is not considered that any evidence from the claimant is required in order for the decision in this appeal to be properly determined. Neither party has applied for a further oral hearing. I consider that having regard to the submissions received, and to the overriding objective, the decision can justly be remade on the documents before me without a further oral hearing.
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I now proceed to remake the decision in this appeal on that basis.
Legal framework
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The appeal falls to be decided under Regulation 21 of the Immigration (European Economic Area) Regulations 2006 (as amended):
“Decisions taken on public policy, public security and public health grounds
21.—(1) In this regulation a “relevant decision” means an EEA decision taken on the grounds of public policy, public security or public health.
(2) A relevant decision may not be taken to serve economic ends.
(3) A relevant decision may not be taken in respect of a person with a permanent right of residence under regulation 15 except on serious grounds of public policy or public security.
(4) A relevant decision may not be taken except on imperative grounds of public security in respect of an EEA national who–
(a) has resided in the United Kingdom for a continuous period of at least ten years prior to the relevant decision; …
(5) Where a relevant decision is taken on grounds of public policy or public security it shall, in addition to complying with the preceding paragraphs of this regulation, be taken in accordance with the following principles–
(a) the decision must comply with the principle of proportionality;
(b) the decision must be based exclusively on the personal conduct of the person concerned;
(c) the personal conduct of the person concerned must represent a genuine, present and sufficiently serious threat affecting one of the fundamental interests of society;
(d) matters isolated from the particulars of the case or which relate to considerations of general prevention do not justify the decision;
(e) a person’s previous criminal convictions do not in themselves justify the decision.
(6) Before taking a relevant decision on the grounds of public policy or public security in relation to a person who is resident in the United Kingdom the decision maker must take account of considerations such as the age, state of health, family and economic situation of the person, the person’s length of residence in the United Kingdom, the person’s social and cultural integration into the United Kingdom and the extent of the person’s links with his country of origin. …”
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That provision implements the provisions of Article 28(3) of Directive 2004/38/EC. The Upper Tribunal in 2012 referred to the Court of Justice of the European Union two cases for preliminary rulings concerning the proper interpretation of Article 28(3)(a) for in relation to imprisonment in the host state, in Onuekwere (imprisonment – residence) Nigeria [2012] UKUT 269 (IAC) and in MG (EU deportation - Article 28(3) - imprisonment) Portugal [2012] UKUT 268 (IAC).
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In Onuekwere (Judgment of the Court) [2014] EUECJ C-378/12, the Court of Justice held that:
“1. Article 16(2) of Directive 2004/38/EC of the European Parliament and of the Council of 29 April 2004 … must be interpreted as meaning that the periods of imprisonment in the host Member State of a third-country national, who is a family member of a Union citizen who has acquired the right of permanent residence in that Member State during those periods, cannot be taken into consideration in the context of the acquisition by that national of the right of permanent residence for the purposes of that provision.
2. Article 16(2) and (3) of Directive 2004/38 must be interpreted as meaning that the continuity of residence is interrupted by periods of imprisonment in the host Member State of a third-country national who is a family member of a Union citizen who has acquired the right of permanent residence in that Member State during those periods.”
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In MG’s case, the Court of Justice held that:
“1. On a proper construction of Article 28(3)(a) of Directive 2004/38/EC of the European Parliament and of the Council of 29 April 2004 …the 10-year period of residence referred to in that provision must, in principle, be continuous and must be calculated by counting back from the date of the decision ordering the expulsion of the person concerned.
2. Article 28(3)(a) of Directive 2004/38 must be interpreted as meaning that a period of imprisonment is, in principle, capable both of interrupting the continuity of the period of residence for the purposes of that provision and of affecting the decision regarding the grant of the enhanced protection provided for thereunder, even where the person concerned resided in the host Member State for the 10 years prior to imprisonment. However, the fact that that person resided in the host Member State for the 10 years prior to imprisonment may be taken into consideration as part of the overall assessment required in order to determine whether the integrating links previously forged with the host Member State have been broken.”
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In the light of that decision, the Upper Tribunal in MG (prison-Article 28(3) (a) of Citizens Directive) [2014] UKUT 392 (IAC) held as follows:
“(1) Article 28(3)(a) of Directive 2004/38/EC contains the requirement that for those who have resided in the host member state for the previous 10 years, an expulsion decision made against them must be based upon imperative grounds of public security.
(2) There is a tension in the judgment of the Court of Justice of the European Communities in Case C-400/12 Secretary of State v MG, [2014] EUECJ C-400/12, in respect of the meaning of the “enhanced protection” provision.
(3) The judgment should be understood as meaning that a period of imprisonment during those 10 years does not necessarily prevent a person from qualifying for enhanced protection if that person is sufficiently integrated. However, according to the same judgment, a period of imprisonment must have a negative impact in so far as establishing integration is concerned.”
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The Upper Tribunal has drawn together the various authorities on rehabilitation in MC (Essa principles recast) [2015] UKUT 520 (IAC), as follows:
“1. Essa rehabilitation principles are specific to decisions taken on public policy, public security and public health grounds under regulation 21 of the 2006 EEA Regulations.
2. It is only if the personal conduct of the person concerned is found to represent a genuine, present and sufficiently serious threat affecting one of the fundamental interests of society (regulation...
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