Upper Tribunal (Immigration and asylum chamber), 2017-10-31, IA/00442/2012
| Jurisdiction | UK Non-devolved |
| Date | 31 October 2017 |
| Published date | 17 November 2017 |
| Hearing Date | 12 October 2017 |
| Court | Upper Tribunal (Immigration and Asylum Chamber) |
| Status | Unreported |
| Appeal Number | IA/00442/2012 |
Appeal Number: IA/00442/2012
Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: IA/00442/2012
THE IMMIGRATION ACTS
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Heard at Field House |
Decision Reasons Promulgated |
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On 12 October 2017 |
On 31 October 2017 |
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Before
UPPER TRIBUNAL JUDGE SMITH
Between
THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Appellant
and
MR ARTURAS DUMBLIAUSKAS
Respondent
Representation:
For the Appellant: Mr T Melvin, Senior Home Office Presenting Officer
For the Respondent: Ms M Cohen, Counsel instructed by Wilson Solicitors LLP
DECISION AND REASONS
PROCEDURAL BACKGROUND
1. In light of the somewhat lengthy procedural history to this appeal, it is appropriate that I begin by setting that out. At the outset of the hearings before me, the Appellant is the Secretary of State, the Court of Appeal having found an error of law in the Upper Tribunal’s previous decision (see below) and remitted the appeal to the Upper Tribunal for reconsideration. For ease of reference, though, and in light of my decision in relation to whether the original First-tier Tribunal decision contains a material error of law, it is convenient to refer to the parties throughout as they were in the First-tier Tribunal.
2. The Respondent’s decision under appeal is one dated as long ago as 21 December 2011 giving notice of the making of a deportation order against the Appellant under the Immigration ((European Economic Area) Regulations 2006 (“the EEA Regulations”). That decision was supplemented by a decision dated 22 May 2012 confirming the deportation order under the EEA Regulations and also rejecting a human rights’ claim under Article 8 ECHR. Although the Appellant has also made an asylum and Article 3 claim, which were the subject of a decision dated 24 February 2012 rejecting those claims and certifying the claims under section 72(2) Nationality, Immigration and Asylum Act 2002, those claims were withdrawn in the course of the First-tier Tribunal appeals and I need say no more about them.
3. By a decision promulgated on 30 August 2012, a panel of the First-tier Tribunal consisting of First-tier Tribunal Glossop and Mr P Bompas dismissed the appeal on all grounds. That decision was set aside by Upper Tribunal Judge McGeachy on 12 December 2012 on the basis that the Appellant had not been brought to the Tribunal hearing (he was at that time in detention) and there were therefore agreed to be procedural errors. The appeal was remitted to the First-tier Tribunal to be heard afresh.
4. By a decision promulgated on 12 June 2013, a panel of the First-tier Tribunal consisting of First-tier Tribunal Judge Bartlett and Ms Emblin formally dismissed the appeal on asylum and Article 3 grounds (as those claims were not by then pursued) but allowed the appeal under the EEA Regulations on the basis that, although the Appellant was found to be a genuine, present and sufficiently serious threat at that time, the decision to deport him was not proportionate, having regard in particular to the lack of prospects of rehabilitation in Lithuania due to the lack of evidence concerning treatment for drug addiction.
5. Permission to appeal was granted by Upper Tribunal Judge Macleman in the following terms:-
“It is debatable whether prospective rehabilitation in the UK rules out deportation, under the regulations, of a person not integrated in the UK.”
6. The appeal next came before the Upper Tribunal (Judges Warr and O’Connor) on 7 October 2013. By a decision sent on 14 October 2013, they found that the First-tier Tribunal decision did not contain a material error of law and declined to set that decision aside.
7. On 16 April 2014, the Court of Appeal granted permission to the Respondent on the basis that the grounds were clearly arguable and joined the appeal in this case with those in LW (Poland) and ME (Netherlands). Those appeals were heard together on 20 and 21 January 2015 culminating in a judgment of the Court (LJJ Jackson and Floyd and Sir Stanley Burnton) dated 26 February 2015 [2015] EWCA Civ 145. Although the Court held that the prospects of rehabilitation were a relevant consideration, even if an appellant were not permanently resident in the relevant member state, it accepted the argument that the weight given to this factor by the First-tier Tribunal was “manifestly excessive”. Their judgment in relation to this particular appeal is contained in [57] of the judgment as follows:-
“[57] In AD, the First-tier Tribunal accepted that appropriate medical treatment would be available to him in Lithuania, but found that no rehabilitative programme for him, as a recovering drug addict, would be available in Lithuania. I consider that it erred in so doing. Appropriate medical treatment could well include support for his abstinence from hard drugs, and in any event it should not have been assumed that no support is available for a reforming addict. The Upper Tribunal should not have upheld the First-tier Tribunal’s assessment of proportionality, which was flawed for the reason I have given. The Secretary of State’s appeal should be allowed; the decision of the Upper Tribunal should be set aside, and AD’s appeal remitted to be heard by the Upper Tribunal afresh, in the light of the latest evidence. If, while at liberty, he has been abstinent, that may indicate that there are no longer grounds for his deportation, but that remains to be seen.”
An application for permission to appeal the Court of Appeal’s decision was rejected by the Court of Appeal on 9 July 2015 and the Supreme Court on 3 November 2015.
8. Following remittal, on 21 April 2016, Mr Justice Collins gave directions for the reconsideration of the appeal but recognised at that stage that no steps could be taken to obtain up-to-date evidence unless and until public funding was made available to the Appellant to fund his legal representation. He therefore issued a Note urging the Commission to grant legal aid which it duly did.
9. The appeal first came before me on 19 April 2017 for re-hearing. Prior to that hearing, the Appellant’s solicitors sought an adjournment on the basis that it had not been possible to obtain a medical report envisaged by Mr Justice Collins’ directions. I agreed to adjourn but converted the hearing to a CMR and gave directions which were intended to permit a hearing in August 2017. That hearing, on 8 August 2017, also had to be adjourned due to late service of the Appellant’s evidence. I now have before me an Appellant’s bundle which includes the Appellant’s further evidence to which I will refer so far as necessary, a Respondent’s bundle also including material to which I will need to make some reference and written submissions for both parties.
10. Although it had been agreed at the previous hearing, that the Appellant would only be required to give evidence if the Respondent gave prior notice of a wish to cross-examine him (which was not given), the Appellant’s representatives indicated that the Appellant would be giving oral evidence and was available for cross-examination as they realised that the Respondent ought to be given the opportunity to test his evidence. Given the concerns expressed by the medical experts, particular care was taken when the Appellant gave evidence to ensure that the questioning put to him complied with the suggestions made by the medical expert and that he was not put under stress. The Appellant was ably represented by Ms Cohen and I indicated to her that if she had any concerns about the way in which questioning of the Appellant was proceeding, she should indicate that. She did not express any concerns.
Error of Law
11. Given the rather lengthy procedural history to which I refer above, it appeared to me that there had never been a re-determination by the Upper Tribunal whether the First-tier Tribunal’s decision contained an error of law. Both parties agreed that, given what was said by the Court of Appeal in its judgment, it was intended that the First-tier Tribunal’s decision should be set aside for material error and the appeal reconsidered on the basis of the further evidence produced. Ms Cohen urged me to uphold the positive credibility findings made by the First-tier Tribunal when considering the evidence. As Mr Melvin pointed out, though, there is little actual dispute about credibility. The only issue which may turn on my assessment of the Appellant’s own evidence is the extent to which he is a reformed character and genuinely intends to desist from further offending which depends in very large part on whether he intends to remain free from regular use of hard drugs.
12. In light of the above, I formally find that there is an error of law in the First-tier Tribunal’s decision promulgated on 12 June 2013 insofar as concerns the allowing of the appeal under the EEA Regulations. I therefore set aside the decision insofar as it allows the appeal on that ground. The appeal on protection grounds remains dismissed as it was not pursued at that time and the dismissal has not been challenged....
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