Upper Tribunal (Immigration and asylum chamber), 2018-03-07, DA/00496/2016
| Jurisdiction | UK Non-devolved |
| Date | 07 March 2018 |
| Published date | 23 March 2018 |
| Hearing Date | 02 February 2018 |
| Court | Upper Tribunal (Immigration and Asylum Chamber) |
| Status | Unreported |
| Appeal Number | DA/00496/2016 |
Appeal Number: DA/00496/2016
Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: DA/00496/2016
THE IMMIGRATION ACTS
|
Heard at Field House |
Decision & Reasons Promulgated |
|
On 2 February 2018 |
On 7 March 2018 |
Before
UPPER TRIBUNAL JUDGE KOPIECZEK
Between
Ruslanas Bobrovas
Appellant
and
THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent
Representation:
For the Appellant: In person
For the Respondent: Mr I Jarvis, Senior Home Office Presenting Officer
DECISION AND REASONS
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This appeal comes back before me after a hearing on 19 July 2017 following which I decided that the decision of the First-tier Tribunal (“FtT”) was to be set aside for error of law. I include the error of law decision headed ‘Decision and Directions’ as an annex to this decision and to which reference should be made for the full background to the appeal before the Upper Tribunal.
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However, it is as well at this point to reproduce some paragraphs of the error of law decision to put this, my further decision, into context. Thus, at [2] – [12] I said as follows:
“2. The appellant is a citizen of Lithuania, born in 1976. He arrived illegally in the UK in 1999, either in March according to the appellant, or September according to the respondent. A decision to make a deportation order against him was made on 22 September 2016 as a result of his conviction on 26 April 2013 for an offence of conspiracy to cheat the public revenue, for which he received a sentence of six and a half years’ imprisonment. The decision to deport was made with reference to the Immigration (European Economic Area) Regulations 2006 (as amended) (“the EEA Regulations”).
3. The appeal under the EEA Regulations was certified pursuant to reg 24AA. The human rights appeal was certified pursuant to s.94B of the Nationality, Immigration and Asylum Act 2002 (“the 2002 Act”).
4. The appellant’s appeal came before First-tier Tribunal Judge Osborne (“the FtJ”) on 12 January 2017, resulting in the appeal being allowed, both under the EEA Regulations and under Article 8 of the ECHR.
5. Permission to appeal against the FtJ’s decision was granted on the basis that it was arguable that the FtJ erred in concluding that the appellant had acquired 10 years’ residence in the UK, and in failing to take into account the significant public interest in the deportation of the appellant in the light of the fact that he was convicted of an offence involving a conspiracy to cheat the public out of £2.3 million.
6. In pursuance of the deportation order the appellant was removed from the UK on 17 December 2016 but returned illegally on 7 January 2017, without having made an application to return pursuant to reg 29AA, and he was present for his appeal. The FtJ stated at [6] that “on the basis that the Appellant had taken the trouble to travel from Lithuania to the UK for the specific purpose, I had no wish or reason to deny him the opportunity of giving evidence in his own appeal”.
7. The appeal was first listed before me on 24 April 2017. The appellant was not represented. I adjourned the hearing for the respondent to consider whether the appellant’s illegal re-entry to the UK invalidated the appeal before the FtT, and also to consider the question of whether it was the Immigration (European Economic Area) Regulations 2006 that applied or the 2016 Regulations.
8. Mr Jarvis very helpfully provided a detailed and comprehensive skeleton argument setting out the respondent’s position on the above points, and with a note dated 18 July 2017 also considered the relevance of the decision of the Supreme Court in Kiarie and Byndloss v Secretary of State for the Home Department [2017] UKSC 42. I consider those matters further below. I should add that the respondent’s written submissions as contained in those documents were provided to the appellant in advance of the resumed hearing, a fact which he confirmed at the hearing.
Further background to the deportation order
9. On 9 September 1999 the appellant claimed asylum in a false name, claiming to be a national of Belarus. However, the application for asylum was refused on non-compliance grounds. There was a subsequent appeal but it was dismissed without substantive consideration.
10. On 28 May 2002 the appellant was convicted of an offence of indecent assault for which he received a conditional discharge and ordered to pay compensation of £250.
11. The offence which prompted the decision to deport the appellant was one of conspiracy to cheat the public revenue, as detailed above. The sentencing remarks reveal that the offence involved the making of fraudulent claims for tax rebates. The two main methods were that workers, predominantly from Poland, were tricked into answering advertisements for jobs in newspapers and other places. The jobs were fictitious and the applicants were tricked into providing information such as their national insurance numbers, tax references, dates of birth and so forth.
12. The female telephone operators who received the information were, on the whole, illegal immigrants in the UK. About 200 bank accounts were opened as part of the conspiracy. Fraudulent claims for tax rebates were made over a five year period, amounting to £2.3 million. Many of the false claims were identified by Revenue and Customs and so the actual payments amounted to about £658,000. The appellant was found by the sentencing judge to have been fully aware of the extent of the organisation and its workings.”
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It is evident from the error of law decision therefore, that the re-making of the decision involves a reassessment of the extent to which the appellant is entitled to resist deportation under the Immigration (European Economic Area) Regulations 2006 (“the EEA Regulations”), and the level of protection, if any, afforded to him under the EEA Regulations against the deportation decision. To that end, I heard further evidence from the appellant.
Oral evidence and submissions
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The appellant had the assistance of a Russian interpreter but confirmed that he would only need the assistance of the interpreter if there were any matters that he did not understand or if he felt unable to express himself in English. In fact, he gave all of his evidence in English without apparent difficulty.
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As to why he should not be deported from the UK, the appellant said that he relied on the explanations he had previously given. He had been in the UK for about 20 years. He said that was sorry for the offences he had committed.
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He came to the UK in March 1999 with his Lithuanian passport. He registered with the Home Office when he came back from Lithuania in August 2004. He moved to Worthing and did work buying and selling. He never knew about the need to register with the Home Office.
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It was true that previously he had said that he paid £60 or £80 in 2006 to the Home Office in order to register as a worker. He had started looking for a job with agencies and they said he needed to register with the Home Office. They gave him about a month to do that. He paid £60 to the Home Office and showed the registration paper to the agency. He does not have that document now. When he came out of prison everything was lost. Not every agency required registration, and everything was new for everyone. In 2009 there was no registration regime anymore.
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It was true that he had claimed asylum as a national of Belarus. He did not speak English at the time. As soon as he got permission from the Home Office he worked. He registered for work as a Lithuanian. When he came back to the UK in 2004 he never used the name Sluzbyn, that he had previously used. He used his correct name and nationality.
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As to the suggestion by the Secretary of State that he may commit further offences, he said that he had had enough of that last time. He had lost almost everything.
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His daughter lives in Southampton and he is still in touch with her. He has now moved to Peterborough. As to how often he sees his daughter, he tries to contact her by phone, because he could not work. He is now working for Amazon and is due to start a job (on Monday 5 February 2018) as a bricklayer.
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He lives with a woman called Nela who is from Latvia. She has a daughter aged 9 and he would like to carry on with family life with them. Nela knows about his case and almost everything about his situation and his past. As to whether he had asked her to attend the hearing today, his answer was “not really”. He has been with her since October 2017. He thought that it would not be necessary for Nela to come to the hearing with him because she has a daughter and there is no-one to look after her.
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In cross-examination he said that he did not ask Nela to attend the hearing today but the last time, before the New Year, he had asked her to attend the court. They just decided that he would go on his own. She is worried and keeps texting him about what...
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