Upper Tribunal (Immigration and asylum chamber), 2021-05-20, DA/00723/2018
| Jurisdiction | UK Non-devolved |
| Date | 20 May 2021 |
| Published date | 04 June 2021 |
| Hearing Date | 14 May 2021 |
| Status | Unreported |
| Court | Upper Tribunal (Immigration and Asylum Chamber) |
| Appeal Number | DA/00723/2018 |
Appeal Number: DA/00723/2018
Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: da/00723/2018
THE IMMIGRATION ACTS
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Heard at Field House by Microsoft Teams |
Decision & Reasons Promulgated On 20 May 2021 |
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On 14 May 2021 |
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Before
UPPER TRIBUNAL JUDGE GLEESON
Between
abuzar mahmood shaukat
[NO ANONYMITY ORDER]
Appellant
and
THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent
Representation:
For the appellant: Ms Susana Cunha, Senior Home Office Presenting Officer
For the respondent: No appearance or representation.
DECISION AND REASONS
Decision and reasons
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The Secretary of State appealed against the decision of the First-tier Tribunal allowing the claimant’s appeal against her decision on 13 February 2018 to deport him to the Netherlands, of which he is a citizen.
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Mode of hearing. The hearing today took place remotely by Microsoft Teams. There were no technical difficulties. I am satisfied that Ms Cunha was in a quiet and private place and that the hearing was completed fairly, with her cooperation.
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Procedural history. On 16 February 2017, the claimant was convicted at Cardiff Crown Court of street supply of Class A drugs (cocaine and heroin) and breach of bail conditions. The claimant was sentenced to 54 months’ imprisonment, credit being given for his previous lack of drug convictions and his late guilty plea. This was his first custodial sentence. He did not respond to the Secretary of State’s notice of liability to deportation, but did appeal the deportation order. The First-tier Judge allowed the appeal on the basis that the claimant had been resident in the United Kingdom for more than 10 years but failed to consider whether his residence was ‘in accordance with’ the Immigration (European Economic Area) Regulations 2016.
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On 2 October 2020, I set aside the decision of the First-tier Tribunal allowing the claimant’s appeal, and directed that the decision in this appeal be remade in the Upper Tribunal. The claimant was present and represented himself. He admitted that he had lost his way when younger, but said that he had learned his lesson and tried to make the best of his time in prison. The claimant assured me that he had evidence to show that he had exercised Treaty rights in the United Kingdom for 10 years before the deportation decision, or at least, before his conviction. I made directions for disclosure of that evidence and consequential directions. The claimant has not complied with those directions and the consequential directions were not triggered.
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The appeal was listed for a telephone case management review on 15 February 2021. The claimant did not join that hearing, nor was there any explanation for his absence. I considered that it was in the interests of justice to give the claimant an opportunity to attend a substantive remaking hearing and to provide the materials he said he possessed.
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The appeal was therefore listed for substantive remaking today. The claimant did not attend, and there is again no explanation for his absence. Ms Cunha confirmed that the claimant was reporting regularly and that he resides still at his notified address for service. I am satisfied that he had adequate notice of this hearing and that he has been properly served.
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I consider it appropriate, having regard to the overriding objective, and in the interests of justice, to proceed to remake the decision on the basis of the submissions of Ms Cunha for the Secretary of State, and the evidence already before the Tribunal. I have had regard to all of the evidence, hard copy and electronic, in this appeal, whether or not it is expressly mentioned in this decision.
Background
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The claimant was born in the Netherlands on 13 June 1993 and came to the United Kingdom in 2004 or 2005, with his family. He would have been 11 or 12 then. Mr Walker accepts that evidence in the hearing bundle establishes his presence in the United Kingdom by 2005. The claimant has had all of his secondary education in the United Kingdom. His parents and siblings live in the United Kingdom.
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By 2008, the 15-year old claimant was in trouble. He was cautioned after being arrested for theft on 2 May 2008 and on 25 August 2011 was cautioned again for disorderly behaviour. On the second occasion, he was 18 years old and an adult. In 2011/2012, the claimant’s parents separated. His father had a new relationship and was not very much in contact with the claimant; his mother also stopped communicating with the claimant after her separation, by reason of his criminality. The claimant got on well with his older brother, and sometimes worked in the brother’s clinic or was given money to sustain his lifestyle.
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Between 3 February 2012 and 16 February 2017, the claimant accrued 12 convictions for 19 offences, mostly theft and kindred offences, but also public order, police, courts and drug offences:
(1) On 3 February 2012, the claimant was convicted of shoplifting contrary to section 1 of the Theft Act 1968. There were further convictions for theft on 16 March 2012, for shoplifting on 23 August 2012,22 October 2012, and on 25 November 2012 (some of these offences whilst on bail). On 14 March 2013, he was convicted of disorderly behaviour contrary to section 5(1)(a) of the Public Order Act.
(2) On 11 April 2013, he was convicted of failure to comply with the requirements of a community order, contrary to Schedule 8 of the Criminal Justice Act 2003, and on 10 September 2013, of resisting or obstructing a constable in the exercise of his duties contrary to section 89(2) of the Police Act 1996 and giving a false name and address contrary to the section 5(3)(c) of the Regulation of Railways Act 1889. On 21 October 2013, the claimant was convicted of travelling on a railway without paying the fare contrary to section 5 of the Regulation of Railways Act.
(3) On 18 March 2014, the claimant was convicted of going equipped for theft, other than theft of a motor vehicle, contrary to section 25 of the Theft Act and theft from the person contrary to section 1 of that Act. On 9 May 2014, the claimant was convicted again of going equipped for theft and also shoplifting.
(4) The index offence related to street drug dealing over the period 1 January 2016-15 May 2016 (or perhaps August 2016, per the OASys report). The claimant was convicted on 16 February 2017 of offences contrary to section 4(2) and 4(3) of the Misuse of Drugs Act 1971, and of failure to surrender to custody at the appointed time, contrary to section 6(1) of the Bail Act 1975.
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When arrested for the index offence in August 2016, the claimant replied ‘no comment’ throughout his police interview and did not cooperate in unlocking his mobile phone so that the police could examine it: when they were able to access it, the phone was found to contain data consistent with dealing in drugs. He did not change his plea to guilty until the hearing.
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On 16 February 2017, the claimant received a 54-month sentence for street dealing (heroin and cocaine) which triggered the decision under challenge. The sentencing judge accepted that the claimant was ‘second in order of culpability’ but found that his role in the dealing organisation was nevertheless a significant one. The decision to deport him was taken on 13 February 2018. It was served on him on 27 February 2018, along with removal directions. The claimant resisted removal to the Netherlands on the basis that he is entitled to protection at the ‘imperative grounds’ level under Regulation 27(4) of the Immigration (European Economic Area) Regulations 2016.
First-tier Tribunal decision
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The Secretary of State accepted before the First-tier Tribunal that the claimant had obtained permanent residence under Regulation 15 of the 2016 Regulations. On 13 February 2018, when the deportation order was made, the claimant had been in prison serving his 4-year sentence for just under a year.
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The First-tier Judge found the claimant to be an impressive witness, who had expressed genuine remorse for his previous offending. His father was seriously ill and he had nobody in the Netherlands. His father and step-mother, and their children, would be instrumental in the claimant’s rehabilitation.
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At [85], the First-tier Judge considered whether the claimant had established that he had 10 years’ continuous residence in the United Kingdom ‘in accordance with the Regulations’, the relevant period being from 13 February 2008 to 13 February 2018 when the removal decision was made. At [86]-[91], the First-tier Judge set out the evidence of the claimant’s private life in the United Kingdom. At [93], the judge found that the claimant’s offending behaviour had not displaced any genuine integration, taking into account that a period of imprisonment would not necessarily break a 10-year period of residence.
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The First-tier Judge considered the decision of the Court of Appeal in VP (Italy) v Secretary of State for the Home Department [2010] EWCA Civ 806 and Essa v Secretary of State for the Home Department [2012] EWCA Civ 1718 and found that, if the imperative grounds test were applied, the...
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