Upper Tribunal (Immigration and asylum chamber), 2020-01-16, DA/00325/2018
| Jurisdiction | UK Non-devolved |
| Date | 16 January 2020 |
| Published date | 06 March 2020 |
| Hearing Date | 20 December 2019 |
| Status | Unreported |
| Court | Upper Tribunal (Immigration and Asylum Chamber) |
| Appeal Number | DA/00325/2018 |
Appeal Number: DA/00325/2019
Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: DA/00325/2018
THE IMMIGRATION ACTS
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Heard at Field House |
Decision & Reasons Promulgated |
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On 20 December 2019 |
On 16 January 2020 |
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Before
UPPER TRIBUNAL JUDGE STEPHEN SMITH
Between
Mrs Gunaratnam Sriskantharajah
(ANONYMITY DIRECTION NOT MADE)
Appellant
and
THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent
Representation:
For the Appellant: Mr B. Malik, Counsel (direct access)
For the Respondent: Mr D. Clarke, Senior Home Office Presenting Officer
DECISION AND REASONS
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This is an appeal against a decision of the respondent dated 9 May 2018 to deport the applicant, Gunaratnam Sriskantharajah, a citizen of Germany born on 7 April 1966, to Germany under the Immigration (European Economic Area) Regulations 2016 (“the 2016 Regulations”). In a decision and reasons dated 25 September 2019, a panel of the Upper Tribunal (Upper Tribunal Judge Rintoul, Upper Tribunal Judge Stephen Smith) allowed the appellant’s appeal against a decision of First-tier Tribunal Judge Hollingworth promulgated on 2 May 2019 dismissing her appeal against the respondent’s decision to make a deportation order against her. The error of law decision may be found in the Annex to this decision.
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The error of law decision preserved Judge Hollingworth’s findings that the appellant represented a genuine, present, and sufficiently serious threat affecting one of the fundamental interests of society, and directed that the matter be re-heard in this tribunal in order for the proportionality of the appellant’s deportation to Germany to be assessed. In those circumstances the matter came before me, sitting alone.
Factual background
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The appellant is of Tamil ethnicity, and her main language is Tamil. She claims to speak no German and have only limited English. She moved with her husband to Germany from Sri Lanka in 1986. They have three daughters. The family moved to the United Kingdom in 2003. On 10 November 2014, the appellant, along with her husband and two others, were convicted of a number of counts of money laundering, arising from their use of the family Bureau de Change shops in central London as a front for laundering approximately £145,000,000 of the proceeds of crime. The offence involved the appellant and the co-defendants placing large and frequent orders for wholesale foreign currency (mainly Euros), which was paid for using cash. The sums involved greatly exceeded those which could genuinely have been generated by a genuine business of a similar size.
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The appellant was sentenced to seven years’ imprisonment and disqualified from acting as a company director for eight years. Her husband, who is also German, was sentenced to twelve years’ imprisonment and remains in prison. The appellant’s husband was the lead defendant in the criminal trial. The appellant had a subsidiary, although significant, role.
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Judge Hollingworth found that the appellant continued to represent a genuine, present and sufficiently serious threat affecting one of the fundamental interests of society. In the error of law decision, the panel summarised the judge’s findings in these terms:
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As to the personal conduct of the appellant, the judge noted that the offending under consideration had continued for a period of five years, from 2006 to 2011. At [14], the judge highlighted the appellant’s readiness over that time to engage in these serious criminal activities which were “effectively encouraging criminal activity on the part of organised gangs”. As to the risk she posed, he found that her conduct was “the antithesis of a low risk of reoffending”. The judge ascribed significance to the fact that the appellant had been willing to engage in this extensive criminal activity against a background of having no previous convictions. The judge observed that the “sheer scale and enormity of the criminality upon which she embarked and remained so embarked for such a period of time” was such that provided a strong foundation to conclude that the personal conduct of the appellant represented a substantial risk of reoffending.
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At [15] the judge specifically considered the principle which Mr Malik contends he failed properly to apply, namely that the previous convictions of an appellant do not in themselves justify a decision. We consider that the judge correctly directed himself concerning the requirement that the individual conduct of the appellant must represent a genuine, present and sufficiently serious threat affecting one of the fundamental interests of society. The judge analysed the appellant’s conduct carefully. He noted the seriousness of the offence.
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Judge Hollingworth outlined the Crown Court judge’s sentencing remarks that criminals cannot operate in this country without the presence of those prepared to launder the proceeds of their crime. The appellant was engaged in organised crime, found the sentencing judge. Judge Hollingworth observed that in order to satisfy a confiscation order which had been made against her, the appellant had been required to sell her home and other assets in order to have any hope of satisfying the requirements made against her. The appellant had no meaningful qualifications and the only time she had worked in this country was in the Bureau de Change which had provided the front for the money laundering operations.
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Against that background, at [17], Judge Hollingworth found that the appellant had demonstrated no remorse and had not taken any steps towards achieving rehabilitation. He also found that there had been no evidence that the appellant had undertaken any rehabilitative work while in custody, and he also observed that the primary offending had taken place by the appellant alongside her husband; that was a relevant factor because the presence of those associated with the commission of criminal offences goes to the willingness and the risk of an individual committing further offences.
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We consider that these findings demonstrate that the judge correctly applied the principle that previous convictions do not in themselves justify decisions under regulation 27. Rather, the judge focused on the underlying conduct of the appellant and her wider circumstances, before concluding that her presence represented the necessary, genuine, present and sufficiently serious threat affecting one of the fundamental interests of society.
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We consider these were findings that were open to the judge to reach on the evidence before him. This appellant had engaged in a serious, sustained and organised pattern of offending. We accept that in the context of the wider conspiracy of which she was a part, she played a lesser role than that of her husband, who was the main culprit. He was sentenced to a period of twelve years’ imprisonment. The mere fact that there were co-conspirators or other offenders who were of greater culpability than the appellant cannot have the effect of diminishing her involvement in this offence.
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The appellant’s case is that it would be disproportionate to deport her to Germany. She relies on what she considers to be the preserved findings of fact from the First-tier Tribunal which are in her favour. She points to the fact that she has resided here for over 16 years, having arrived in 2003. She was only educated to a basic level in Sri Lanka. Her age and health conditions make manual labour difficult for her, reducing the prospect of her being able to gain employment in Germany. She has no social or familial links with Germany, whereas her three adult daughters all live in this country. She lives with them and enjoys a close and supportive relationship with them. She speaks no German. She would face very austere conditions in Germany or could be forced to rely on the remitted financial support from two of her daughters. Her daughters would struggle to provide her with the necessary financial support, meaning that, realistically, they would have to move to Germany with her, thereby terminating the social and cultural links that each of them has established in this country, since having arrived here as minors. The appellant’s husband is in prison in this country with a possible release on licence in 2020.
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Against that background, the appellant highlights an OASys report dated 17 December 2019 which concludes that she represents a low risk of reoffending. Her probation officer has no concerns about her propensity to commit further offences. In the circumstances, submits Mr Malik, deportation is a measure which has drastic effects, and goes significantly further than would be required to attain the objectives which the Secretary of State is constrained to achieve under the EU law framework which underpins her decision to deport the appellant.
Legal framework
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The legal framework is set out at [5] to [8] of the Error of Law decision.
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Mr Malik relied on R (on the application of Lumdson and others) v Legal Services Board [2015] UKSC 41 concerning the doctrine of proportionality under EU law. He highlighted the following key themes from the joint judgment...
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