Upper Tribunal (Immigration and asylum chamber), 2021-04-29, DA/00517/2018
| Jurisdiction | UK Non-devolved |
| Date | 29 April 2021 |
| Published date | 17 May 2021 |
| Hearing Date | 14 April 2021 |
| Status | Unreported |
| Court | Upper Tribunal (Immigration and Asylum Chamber) |
| Appeal Number | DA/00517/2018 |
Appeal Number: DA/00517/2018
Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: DA/00517/2018
THE IMMIGRATION ACTS
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Heard remotely at Field House |
Decision & Reasons Promulgated |
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On 14 April 2021 via Skype for Business |
On 29 April 2021 |
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Before
UPPER TRIBUNAL JUDGE STEPHEN SMITH
Between
the Secretary of State for the Home Department
Appellant
and
Robert Nistor
(ANONYMITY DIRECTION not made)
Respondent
Representation:
For the Appellant: Mr T. Lindsay, Senior Home Office Presenting Officer
For the Respondent: The respondent did not appear and was not represented
DECISION AND REASONS (V)
This has been a remote hearing which has been consented to / not objected to by the parties. The form of remote hearing was V (video). A face to face hearing was not held because it was not practicable and all issues could be determined in a remote hearing.
The documents that I was referred to were the Secretary of State’s grounds of appeal, the decision of the First-tier Tribunal, and Tribunal’s own file, the contents of which I have recorded.
The order made is described at the end of these reasons.
The parties said this about the process: the Secretary of State, as the only party in attendance, raised no concerns about the fairness of the hearing
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This is an appeal of the Secretary of State against a decision of First-tier Tribunal Judge Hawden-Beal promulgated on 30 January 2019. The judge allowed an appeal brought by Robert Nistor, a citizen of Poland born on 30 September 1979, against a decision of the Secretary of State dated 1 August 2018, supplemented by a further decision dated 4 December 2018, to deport him from the United Kingdom pursuant to the Immigration (European Economic Area) Regulations 2016 (“the 2016 Regulations”).
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For convenience, in this decision I will use the term ‘appellant’ to refer to Mr Nistor.
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I note that the decision of the First-tier Tribunal was promulgated over two years ago. Permission to appeal was granted by First-tier Tribunal Judge Scott Baker on 1 December 2020. It appears that the Secretary of State’s application for permission to appeal was made in time, on 5 February 2019. The reasons for the delay on the part of the First-tier Tribunal are not clear.
Absence of the appellant
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The appellant was removed from the United Kingdom to Poland by the Secretary of State on 2 September 2018. This was ahead of his appeal, pursuant to regulation 33 of the 2016 Regulations. He did not attend the hearing before the First-tier Tribunal, nor participate in those proceedings in any way. The same was true of the proceedings in this tribunal.
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The notice of hearing was sent to the appellant’s last known address in this country. Neither the tribunal, nor the Secretary of State, of whom enquiries were made, has an email address for the appellant, or contact details for him in Poland.
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Rule 38 of the Tribunal Procedure (Upper Tribunal) Rules 2008 provides that the Upper Tribunal may proceed with a hearing if a party fails to attend a hearing if (a) it is satisfied that the party has been notified of the hearing, or that reasonable steps have been taken to notify the party of the hearing; and (b) considers that it is in the interests of justice to proceed.
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In relation to (a), I was satisfied that reasonable steps had been taken to notify the appellant of the hearing. There was little more that the tribunal could do than send a notice of the hearing to the appellant’s last known address. The appellant brought these proceedings, and even though he has been removed to Poland, the responsibility rests upon him to notify the tribunal with his updated contact details. He has not.
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As to whether it was in the interests of justice to proceed in the appellant’s absence, I explained to Mr Lindsay that I had some concerns that the appellant had been removed by the Secretary of State in circumstances in which she may be unlikely to do so again. I explained that pursuant to the Secretary of State’s concession in R (oao Mendes) v Secretary of State for the Home Department [2020] EWCA Civ 924, so-called interim removals appear not to be pursued by the Secretary of State in the absence of a full EU law proportionality exercise, which does not appear to have taken place in this case. See [18] of the Court of Appeal’s judgment. That was a factor going to the fairness of proceeding the appellant’s absence, as an operative factor in the appellant not being present in the UK to attend his appeal hearing in person was the Secretary of State’s action in removing him from the UK, without, it seems, having conducted the EU law proportionality assessment which she now accepts she must conduct before carrying out such interim removals.
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Notwithstanding the above concerns, I decided that it was in the interests of justice to proceed. The appellant has not remained in contact with the tribunal, something which would be very easy to do from Poland (for example, by email), meaning that responsibility for the tribunal’s inability to contact him rests with him. Remaining in touch with the tribunal is entirely within his gift. The appellant enjoys the ability to be readmitted in order to present his case in person, a step he appears not to have taken.
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I decided that, in the event I were to dismiss the Secretary of State’s appeal, the appellant would suffer no prejudice. The Secretary of State’s grounds of appeal were such that, if I allowed the appeal, a complete rehearing with full findings of fact would be necessary, and the matter could be remitted to the First-tier Tribunal to be heard afresh by a different judge. I decided it was fair to proceed with this hearing in his absence. Indefinitely adjourning the proceedings would have been inconsistent with the overriding objective which is to deal with cases fairly and justly, avoiding delay, so far as is compatible with the proper consideration of the issues.
Factual background
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The appellant claims to have entered the UK thirteen years before his appeal hearing in the First-tier Tribunal, although the Secretary of State disputes the length and quality of his residence for the purposes of the 2016 Regulations. What is clear, however, is that the appellant amassed 22 convictions between 2009 and 2018 for offences of theft, possession of drugs and bladed articles, and breaches of court orders. Most offences took place from 2016 to 2018. During his offending history, the appellant was made subject to various non-custodial disposals, such as community orders with drug rehabilitation requirements, some of which he breached, leading to their revocation, and the substitution of custodial sentences. The penalties culminated in a sentence of 20 weeks’ imprisonment for two charges of theft (shoplifting) and a single charge of failing to surrender to custody, imposed by the West Yorkshire Magistrates’ Court on 15 May 2018.
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According to the Secretary of State’s supplementary decision letter dated 4 December 2018, the appellant’s offending between February 2018 and May 2018 involved repeated thefts, including some thefts from the same retail outlets. The appellant failed to surrender to bail, and committed his most recent offences while subject to a community order. Failing to surrender to custody at the appointed time demonstrated that he had not taken responsibility for his actions, and that he had little regard for the orders imposed upon him by the courts and the police. The pattern of offending demonstrated a propensity to reoffend, and the frequent attempts by the courts to require the appellant to engage with the underlying causes of his behaviour had been in vain. There is no evidence the appellant had sought to improve his behaviour, or learn from his past mistakes. The nature and seriousness of the offences for which the appellant had been convicted increased in time, demonstrating an escalation in the seriousness of his offending. The appellant demonstrated no remorse and showed no understanding of the impact of his actions on his victims. Shoplifting was not a victimless crime. For those reasons, he continued to pose a current threat, considered the Secretary of State. The Secretary of State decided to deport the appellant, on the grounds of public security, maintaining that the appellant represented a genuine, present and sufficiently serious threat affecting one of the fundamental interests of society.
The decision of the First-tier Tribunal
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Having set out the procedural and factual background, and the relevant legal framework, the judge reached her operative findings at [21]:
“Regulation 27 (5) makes it clear that an individual’s previous convictions do not, in themselves, justify the decision. I have looked at the evidence presented by the respondent see what conduct other than the appellant’s previous convictions justify this decision. There is no evidence from the appellant to show that he has completed any rehabilitation courses whilst in prison to address the reasons for his offending behaviour. But equally there is no evidence before me to say that such courses were available to him, were offered and...
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