Upper Tribunal (Immigration and asylum chamber), 2021-11-17, EA/01791/2020
| Jurisdiction | UK Non-devolved |
| Date | 17 November 2021 |
| Published date | 06 December 2021 |
| Hearing Date | 15 October 2021 |
| Status | Unreported |
| Court | Upper Tribunal (Immigration and Asylum Chamber) |
| Appeal Number | EA/01791/2020 |
Appeal Number: EA/01791/2020
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Upper Tribunal (Immigration and Asylum Chamber) |
Appeal Number: EA/01791/2020
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THE IMMIGRATION ACTS
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Heard at Field House |
Decision & Reasons Promulgated |
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On 15 October 2021 |
On 17 November 2021 |
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Before
UPPER TRIBUNAL JUDGE BLUNDELL
Between
SECRETARY OF STATE FOR THE HOME DEPARTMENT
Appellant
and
adriatik mulgeci
(ANONYMITY DIRECTION not made)
Respondent
Representation:
For the Appellant: Mr D Clarke, Senior Presenting Officer
For the Respondent: Mr S Muquit, instructed by Malik & Malik Solicitors
DECISION AND REASONS
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On 9 April 2021, First-tier Tribunal Judge Mill (“the judge”) allowed Mr Mulgeci’s appeal against the Secretary of State’s refusal to grant him a residence card as the extended family member of an EEA national. This is the Secretary of State’s appeal against that decision. To avoid confusion, I will refer to the parties as they were before the FtT: Mr Mulgeci as the appellant and the Secretary of State as the respondent.
Background
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The relevant background was set out fully by the FtT and I need not rehearse it. The appellant is an Albanian national who was born in 1990. He claimed asylum in the UK in 2007, using a different name and date of birth. He was granted exceptional leave in that identity, seemingly as a result of his claimed age at the time.
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The appellant committed criminal offences whilst he was in the United Kingdom. There were minor offences of violence and public order in 2008 and 2011 and then, on 9 December 2011, the appellant received a total of 30 months’ imprisonment for supplying Class A drugs (cocaine) and possessing those drugs with an intention to supply. The appellant was convicted and sentenced in the same false identity he had given to the respondent and it was as a result of the false date of birth that his sentence was served in a Young Offenders Institution and not an adult prison.
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Upon completion of that sentence, the appellant was deported to Albania. That took place on 23 March 2013. The deportation order remains in force, although an application has been made to revoke it.
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The appellant returned to the United Kingdom in breach of the deportation order at the end of 2014. He remained under the radar for the next five years. On 11 July 2019, however, he applied for a residence card as the extended family member of an EEA national who was exercising her Treaty Rights in the United Kingdom. He gave his true name and supplied his Albanian passport. He was said to have been in a durable relationship with this Italian national since 2016 and to have cohabited with her since the autumn of that year. She was said to be employed as a dental nurse at a practice in Richmond.
The Secretary of State’s Decision
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On 7 February 2020, the respondent refused the appellant’s application for a residence card. It is necessary to consider the structure and reasoning of the refusal letter in a little detail. The respondent set out the salient parts of the history at [1]-[11]. At [16], she noted that extended family members (“EFM”) did not have the same automatic right to live and work in the UK in the same way as EEA nationals and their direct family members. At [17], she noted that an EFM must first meet the relevant relationship criteria and that an extensive examination of their personal circumstances was then undertaken, in which the respondent considered whether it was appropriate to issue a residence card.
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At [18]-[30], the respondent gave reasons for concluding that the appellant had submitted insufficient evidence for concluding that the appellant was the unmarried partner of an EEA national. At [31], she left open the possibility that the relationship might be one of convenience.
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Underneath [32] of the letter there appears the following, emboldened sub-heading: ‘STAGE 4 Extended Family Member Consideration – extensive examination of personal circumstances’. Underneath the following paragraph, there is a further sub-heading, also in bold type, in the following terms: ‘Consideration of the Appropriateness to Issue a Residence Card’. The first paragraph in this section of the letter is as follows:
In addition to your consideration under Regulation 8(5), as an extended family member this office must also consider as to whether it is appropriate in all circumstances to issue you with a residence card as the extended family member of an EEA national under Regulation 18(4) & 5 of the 2016 EEA Regulations (as amended).
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The relevant regulations were then set out by the Secretary of State, together with an excerpt from a policy document. At [39]-[41], the respondent gave reasons for concluding that the appellant’s claimed partner would not be deterred from exercising her free movement rights in the event of the appellant’s removal from the UK.
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There is then a further sub-heading in the letter: ‘Consideration of criminality’. Under that sub-heading, before a further excerpt from the European Modernised Guidance, there is the following paragraph:
The Home Office has undertaken an extensive examination of your personal circumstances. In doing so it is reasserted that you have failed to demonstrate that you have a right to reside under the EEA Regulations, as such you do not qualify to have your criminal conduct consider [sic] under the protection of Public Policy (Regulations 24 and 27). [emphasis in original]
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The respondent nevertheless went on to review the level of threat posed by the appellant, drawing on the crimes for which he had been sentenced by HHJ Cameron and the remarks made during that sentencing exercise. Her conclusions in that respect were as follows:
[50] It is concluded that your offence was so serious that you represent a genuine, present and sufficiently serious threat to society to justify the Secretary of State taking the decision to refuse to issue you a document as the claimed extended family member of an EEA national as it is clearly not appropriate to do so.
[51] This department will not issue you with a residence card for those reasons. As a result your application is refused under regulation 18(4) of the Immigration (European Economic Area) Regulations.
[52] You have failed to satisfy the conditions set forth in the Stage 4 Criteria of assessment [sic] an extended family member relationship under the EEA Regulations, as outlined in the European Moderniced Guidance. As such, even if you had [sic] have demonstrated that you met the conditions set forth in Regulation 8(5) of the Immigration (EEA) Regulations 2016, your application would have also been refused with reference to 18(4) and 18(5) of the 2016 EEA Regulations (as amended).
The Proceedings Below
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The appellant appealed to the FtT and his appeal was heard by the judge, sitting remotely at Hatton Cross, on 7 April 2021. The appellant was represented by counsel, Ms Akinbolu. The respondent was also represented by counsel, Mr Gazzain, who was wrongly thought by the judge to be a Presenting Officer.
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The judge rejected an application for an adjournment by counsel for the respondent. It had been submitted that the appropriate course was to allow the respondent to consider the pending application to revoke the deportation order and that it would be premature to consider the appeal without a decision on that issue. The judge refused that application, holding that the existence of the deportation order did not of itself deny the appellant a right of residence. The judge then heard oral evidence from the appellant, his partner and her sister and submissions from counsel before reserving his decision.
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The judge’s decision is carefully structured and reasoned. I intend him no discourtesy in offering, at this stage, only an outline of his essential conclusions.
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For reasons the judge gave at [24]-[29], he found that the appellant and the sponsor were in a durable relationship. At [30], he noted the extensive examination required by regulation 18(4)-(5) of the 2016 Regulations before such a person could be granted a residence card. At [31]-[34], the judge set out regulation 27(5) and the salient parts of schedule 1 of the 2016 Regulations. At [35]-[38], the judge turned his mind to the relevant background, including the appellant’s use of a false name and other matters. At [39], he disagreed with the respondent’s conclusion that the appellant’s partner would not be deterred from exercising her right to free movement by the removal of the appellant.
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The judge then turned to the appellant’s criminality and to the appellant’s assertion that he had reformed in the years since he had been caught supplying cocaine to undercover officers. At [49], the judge concluded that the appellant was ‘no longer a genuine, present and sufficiently serious threat to the interests of society in the UK’. In reaching that conclusion, he had considered the appellant’s own evidence, the absence of any evidence adduced by the respondent on the point, and a report from a Forensic Psychologist. At [50], he...
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