Upper Tribunal (Immigration and asylum chamber), 2019-04-10, DA/00029/2015
| Jurisdiction | UK Non-devolved |
| Date | 10 April 2019 |
| Published date | 29 May 2019 |
| Hearing Date | 25 January 2019 |
| Court | Upper Tribunal (Immigration and Asylum Chamber) |
| Status | Unreported |
| Appeal Number | DA/00029/2015 |
Appeal Number: DA/00029/2015
Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: DA/00029/2015
THE IMMIGRATION ACTS
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Heard at Field House |
Decision & Reasons Promulgated |
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On 29 September 2016 And 25 January 2019 |
On 10 April 2019 |
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Before
UPPER TRIBUNAL JUDGE RINTOUL
Between
Alexandre [A]
(ANONYMITY DIRECTION not made)
Appellant
And
THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent
Representation:
For the Appellant: Mr Solomon, instructed by MKM solicitors (29/09/16)
Ms S Iqbal instructed by EA Law Solicitors (25/01/19)
For the Respondent: Mr S Kotas, Senior Home Office Presenting Officer
DECISION AND REASONS
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The appellant appeals against the decision of the Secretary of State made on 6 January 2015 to deport him pursuant to Regulation 19(3)(b) of the Immigration (European Economic Area) Regulations 2006. His appeal against that decision was allowed by First-tier Tribunal Judge Kamara on 27 October 2015. For the reasons given in my decision promulgated on 30 September 2016 that decision was set aside.
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The remaking of that decision did not take place until 25 January 2019 for a number of reasons including the appellant being held on remand pending a trial in which he was found not guilty, that trial being postponed until June 2017, and, on account of the reference made to the CJEU in SSHD v Vomero [2016] UKSC 49 which was not resolved until relatively recently. Difficulties arose also as the appellant’s representatives were the subject of intervention and there has had to be two changes of solicitors.
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The appellant is a citizen of Portugal who was born on 18 February 1986. He arrived in the United Kingdom in March 1994 with his mother and siblings, and has remained here ever since. He was educated here, and has worked in short-term jobs. He has a partner with whom he has a child; he and his partner have children from previous relationships.
The appellant’s case
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On 14 October 2008, the appellant was on his own confession convicted of robbery, possession of a firearm and taking a conveyance without consent. This was because he had participated in the armed robbery of a delivery van. He was sentenced to 9 years’ imprisonment as a result. He was released from custody on 8 November 2012, entered immigration detention, and was released on bail on 13 December 2012.
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On 7 October 2012, the respondent made a decision to deport the appellant. He appealed against that decision and the decision was withdrawn at his appeal on 8 February 2013. On 9 January 2015, he was convicted of mail in transmission and sentenced to 28 days’ imprisonment.
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The appellant’s case is that, having lived lawfully in the United Kingdom for 10 years prior to his imprisonment, he is entitled to the benefit of reg. 21 (4) of the EEA Regulations; has not lost that benefit despite being imprisoned; and, that it is for Secretary of State to show that there are imperative grounds of public security justifying his deportation.
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Alternatively, the appellant submits that he has acquired permanent residence under the EEA Regulations; has not lost it through being imprisoned; and so is entitled to benefit from reg. 21 (3) of the EEA Regulations such that it is for the Secretary of State to show that there are serious reasons of public policy or security justifying deportation.
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The appellant further submits that, in the event of having lost the benefit of regs. 21 (3) and (4), it is still for the respondent to show that he does not constitute a genuine, present and sufficiently serious threat affecting one of the fundamental interests of society and that she has not done so. It is also the appellant’s case that, having had regard to the factors set out in reg. 21 (5), his deportation would, on any basis, be disproportionate.
The respondent’s case
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The respondent accepted that the appellant has lived in the United Kingdom since 1995 but did not accept that he is entitled to the benefit of regs. 21 (3) or (4) on the basis that he had not shown that he had acquired permanent residence, noting an absence of evidence that he had been exercising Treaty rights or had benefited from comprehensive sickness insurance.
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The respondent considered that the applicant was, in light of his offending, and his assessment as being at MAPPA level 1, that he is a genuine and present threat to society. She also considered that his deportation was, having had regard to the factors set out in reg. 21(5), proportionate. The respondent considered also that his removal would be proportionate having had regard to article 8 of the Human Rights Convention.
The decision of the First-tier Tribunal and grounds of appeal
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On appeal, the judge found that: -
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The appellant had acquired permanent residence on 5 April 2000 [25], on the basis that he had in the five years prior to that lived continuously in the United Kingdom [26] as the child dependant of an EEA national (his mother) who had been exercising Treaty rights as a worker [23] – [25]; and, had been residing continuously in the United Kingdom since March 1994 [28];
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A decision to remove an EEA national who had resided for a period of at least 10 years may not be taken except on imperative grounds of public security [29], this regulation to be taken into account in assessing the evidence;
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Having had regard to the OASys report and NOMS report, as well as the judge’s sentencing remarks [31- [38], his most recent conviction [39] and other matters, that the appellant did not represent a genuine, present and sufficiently serious threat to the fundamental interest of society [53], there being [54], no evidence or submissions that there were imperative public security grounds justifying the appellant’s removal
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The Secretary of State sought permission to appeal on the grounds that the judge erred:
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In finding that the appellant had acquired the permanent right of residence, there being insufficient evidence to that effect;
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In failing to consider whether the appellant’s imprisonment had, in the light of MG [2014] EUECJ C-400/12 deprived him of the right to the highest level of protection set out in reg. 21 (4), this being material as there were serious grounds of public policy justifying his deportation;
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In concluding that the appellant was not a genuine, present and sufficiently serious threat, given that in assessing this, she had wrongly applied a threshold higher than that to which the appellant was entitled, and she failed properly to take into account that he had been assessed as a medium risk.
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On 8 December 2015 Upper Tribunal Judge Smith granted permission on all grounds.
The Hearings before the Upper Tribunal
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The appeal first came before Deputy Upper Tribunal Judge Archer on 25 February 2016 who subsequently became seriously ill and was unable to produce a decision. For that reason, a transfer order was made, and the matter came before me on 29 September 2016.
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I heard submissions from both parties. I deal with the grounds in turn.
Ground 1:
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The Secretary of State appears from the refusal letter to have misunderstood the basis on which it was said that the appellant had acquired permanent residence. Until the age of 21 he was, for the purposes of the EEA Regulations a family member of the EEA national as his mother is an EEA national (see reg. 7 (i) (b)(i)). The issue was therefore whether his mother had been a qualified person and so lawfully resident for a period of five years. The fact that this was acquired prior to the entry into force of the EEA Regulations or the Citizenship Directive 2004/38/EC is not relevant – see Lassal [2010] EUECJ C-162/09
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There was, as the judge noted [23] – [26] substantial evidence that the mother had been employed, and this was adequate and sufficient to justify her conclusion. The submission to the contrary is in reality an argument about weight, or an unfounded submission that the finding of fact was perverse. Accordingly, I conclude that ground 1 does not demonstrate an error of law.
Ground 2
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It does not appear from the decision that the judge directed herself to the principles set out in MG which is binding. Of particular note is what was said at [37] - [38]:
“37 Lastly, as regards the implications of the fact that the person concerned has resided in the host Member State during the 10 years prior to imprisonment, it should be borne in mind that, even though – as has been stated in paragraphs 24 and 25 above – the 10-year period of residence necessary for the grant of the enhanced protection provided for in Article 28(3)(a) of Directive 2004/38 must be calculated by counting back from the date of the decision ordering that...
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