Upper Tribunal (Immigration and asylum chamber), 2016-10-04, DA/00606/2015
| Jurisdiction | UK Non-devolved |
| Date | 04 October 2016 |
| Published date | 25 July 2018 |
| Hearing Date | 13 September 2016 |
| Court | Upper Tribunal (Immigration and Asylum Chamber) |
| Status | Unreported |
| Appeal Number | DA/00606/2015 |
Appeal Number: DA/00606/2015
Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: DA/00606/2015
THE IMMIGRATION ACTS
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Heard at Newport |
Decision & Reasons Promulgated |
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On 13 September 2016 |
On 4 October 2016 |
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Before
UPPER TRIBUNAL JUDGE GRUBB
Between
THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Appellant
and
Mohammed [A]
(ANONYMITY DIRECTION NOT made)
Respondent
Representation:
For the Appellant: Mr A McVeety, Senior Home Office Presenting Officer
For the Respondent: Mr D Paxton instructed by South West Law
DETERMINATION AND REASONS
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The Secretary of State appeals against a decision of the First-tier Tribunal (Judge O’Brien) allowing the appeal of Mohammed [A] against a decision of the Secretary of State taken on 1 December 2015 to deport him under regs 19(3) and 21 of the Immigration (EEA) Regulations 2006 (SI 2006/1003 as amended) (the “EEA Regulations”).
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Although this is an appeal by the Secretary of State, for convenience I will refer to the parties as they appeared before the First-tier Tribunal.
Introduction
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The appellant, who was born on 2 April 1997, is a citizen of the Netherlands. He came to the UK in January 2002 with his mother and siblings. His father came to the UK in May 2002 but did not live with the appellant or the family until around April 2014. The appellant was 4 years old when he came to the UK and he has been educated and attended school and college in the UK until around April 2014. He was, at the date of the hearing, just short of his 19th birthday.
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Between 20 November 2013 and 18 March 2015, the appellant was convicted on five occasions of eight offences. Apart from the last offence, the appellant did not receive a custodial sentence. These offences included possession of a bladed object in a public place, resisting or obstructing a police constable, burglary and theft of a non-dwelling and possession of cannabis. The final offence was that of being concerned in the supply of a class A controlled drug, namely cocaine and heroine. He pleaded guilty to that offence at the Bristol Crown Court on 16 April 2015 and on 12 October 2015 was sentenced to two years’ detention in a Youth Offenders’ Institution.
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On 22 October 2014, the appellant was notified of his liability to be deported. On 1 December 2015, the Secretary of State decided to deport the appellant as an EEA national on grounds of public policy under regs 19(3)(b) and 21 of the EEA Regulations.
The Appeal to the First-tier Tribunal
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The appellant appealed to the First-tier Tribunal. The appellant argued that his deportation could not be justified under the EEA Regulations and under Art 8 of the ECHR. Having concluded that the appellant could not be deported under the EEA Regulations, the judge (Judge O’Brien) made no decision in relation to Art 8 and no matter in relation to Art 8 was raised before me.
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Before Judge O’Brien, the appellant argued that, as he had been resident in the UK for over ten years since 2002, he could only be removed on the basis of ‘imperative grounds of public security’ by virtue of reg 21(4)(a) of the EEA Regulations. His offending did not fall into that category. In addition, the appellant argued that he had acquired a permanent right of residence under reg 15 as the “family member” of his father who had been exercising treaty rights as a worker in the UK between 17 June 2002 and 12 September 2008. As a result of his five years’ residence on that basis, and therefore his acquisition of a permanent right of residence, the appellant argued that (even if the “imperative grounds of public security” protection was not applicable to him) he could only be deported if there were “serious grounds of public policy or public security” (see reg 21(3)).
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Judge O’Brien accepted both the appellant’s primary and alternative arguments.
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First, at para 25 the judge found that the appellant had established ten years’ continuous residence and that the “imperative grounds of public security” basis for deportation applied but that the appellant’s offending could not satisfy that requirement. He said this:
“25. However, the Appellant is an EEA national. He has lived in the United Kingdom continuously since 2002, over 14 years. Therefore, he can only be removed from the United Kingdom on imperative grounds of public security. In my judgment, the Appellant’s case falls well short of satisfying that test. It follows that the Respondent’s decision would contravene his rights under the 2006 Regulations.”
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Secondly, as regard the appellant’s claim to have a permanent right of residence, Judge O’Brien accepted that his father had been in continuous employment between 17 June 2002 and 12 September 2008 and, as a result of that, the appellant as his “family member” who had resided in the UK during that period had acquired a permanent right of residence and, assuming the ‘imperative grounds’ provision did not apply, he could only be deported on “serious grounds of public policy or public security” and that the appellant’s offending was not sufficiently serious and his present level of risk of harm not sufficiently high to satisfy that requirement. The judge said this:
“26. In any event, the Appellant’s father has acquired a right of permanent residence by virtue of continuous employment with Faccenda Foods from 17 June 2002 until 12 September 2008. It follows that the Appellant has also acquired a right of permanent residence as a family member who has resided in the United Kingdom continuously for at least 5 years. Therefore, the Appellant can only be removed from the United Kingdom on serious grounds of public policy or public security. Again, in my judgment, the Appellant’s offence is not so serious, and his present level of risk of harm is not so high as to constitute serious grounds of public policy or public security.”
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As a consequence, Judge O’Brien allowed the appellant’s appeal under the EEA Regulations.
The Appeal to the Upper Tribunal
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The Secretary of State sought permission to appeal to the Upper Tribunal on a number of grounds.
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First, the judge had failed in applying the “imperative grounds of public security” test to determine whether the appellant had during the period of his residence had “comprehensive sickness insurance”. The basis of that ground appears to be an argument that the appellant must establish that he was exercising treaty rights as a student which, by virtue of reg 4(1)(d)(ii) would require him to have “comprehensive sickness insurance” in order to be a qualified person.
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Secondly, the Secretary of State argued that the judge had been wrong to find that the appellant had established a “permanent right of residence” since his mother had never been a qualified person and he had not been living with his father.
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Finally, the Secretary of State argued that the judge had failed properly to carry out an assessment of proportionality.
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Permission to appeal was initially refused by the First-tier Tribunal but on 18 May 2016, the Upper Tribunal (UTJ Reeds) granted the Secretary of State permission to appeal.
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On 14 March 2016, the appellant submitted a rule 24 notice seeking to uphold the judge’s decision.
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Thus, the appeal came before me.
Discussion
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The issues
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At the outset of the hearing, I drew to the representatives’ attention the decision of the Supreme Court on 27 July 2016 in the case of SSHD v Vomero [2016] UKSC 49 in which the court referred to the Court of Justice (CJEC) a number of questions concerning the application of the enhanced protection provision in Art 28(3)(a) of the Citizens Directive (Directive 2004/38/EC). That is the provision transposed into domestic law in reg 21(4)(a) setting out the “imperative grounds of public security” ground for removal. Whilst some discussion ensued as to the content of the Supreme Court judgment and its implications, neither representative invited me to adjourn this appeal pending the decision of the CJEC on that reference.
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Having considered the questions referred and the existing case law, in particular the CJEC’s earlier decision in MG v SSHD (Case C-400/12) [2014] 2 CMLR 40, I am confident that the law that I must apply to determine this appeal is clear and it is not necessary to await the CJEC’s decision on the reference.
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The principal issue in this appeal is whether the judge was correct in law to conclude that the appellant was entitled to the enhanced protection from deportation set out in reg 21(4)(a) and, if he was, to conclude in para 25 of his decision that the appellant’s offending did not fall within it. I did not understand Mr McVeety, on behalf of the Secretary of State, to argue with any conviction that the judge was wrong to conclude that the appellant’s offending did not fall within the “imperative grounds of public security” if that ground was applicable.
2. The regulations in summary
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It is well recognised that decisions to remove or deport EEA nationals or their family members, when based on “public policy, public security or public health...
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