Upper Tribunal (Immigration and asylum chamber), 2022-04-21, DA/00386/2019

Appeal NumberDA/00386/2019
Hearing Date22 March 2022
Published date06 May 2022
Date21 April 2022
CourtUpper Tribunal (Immigration and Asylum Chamber)

Appeal Number: DA/00386/2019

Upper Tribunal

(Immigration and Asylum Chamber) Appeal Number: DA/00386/2019


Heard at Field House

Decision & Reasons Promulgated

On 22nd March 2022

On 21st April 2022












For the Appellant: Mr R Khubber, Counsel, instructed by Turpin & Miller LLP Solicitors

For the Respondent: Mr S Kotas, Senior Home Office Presenting Officer



  1. This is the remaking of the decision in the appellant’s appeal against the respondent’s decision on 17th July 2019 to deport him pursuant to the Immigration (EEA) Regulations 2016 (‘the Regulations’).

  2. The appellant, a Polish citizen, claimed to have entered the UK on 14th June 2007 and shortly afterwards began to exercise treaty rights, working as a professional carer. Whilst the respondent had concerns that the evidence between 2011 and 2015 was not sufficient to cover employment for the whole of that period, there was also evidence that the appellant had claimed jobseeker’s allowance. The respondent accepted in its deportation decision that the appellant had acquired a right of permanent residence under the Regulations but asserted that he was only entitled to the so-called ‘serious grounds’ level of protection (regulation 27(3)) under the Regulations, as his index offence and later imprisonment for that offence had broken any integrative links to the UK.

  3. Before the index offence, the appellant received a police caution on 15th May 2010 for possession of ‘class-A’ drugs (cocaine) and after it, on 15th October 2017 for being drunk and disorderly.

  4. On 25th October 2016, he committed the index offence for which he was later convicted of conspiring to facilitate the commission of a breach of the UK’s immigration laws by non-EU persons, i.e., people trafficking.

  5. Shortly afterwards, but before his conviction, he sustained a serious accident in work, on 8th February 2017, as a result of which he was electrocuted, fell and sustained injuries such that he lost consciousness.

  6. On 26th November 2018, he was convicted at Canterbury Crown Court of the index offence and sentenced to three years’ and four months’ imprisonment. He was further convicted on 19th December 2018 of driving under the influence of a controlled substance (cannabis) for which he was fined £300 and banned from driving for 36 months. On 29th December 2018, the respondent issued the appellant with notice of liability to deportation order, to which he responded with representations. The respondent nevertheless decided on 18th July 2019 to make the deportation order, against which the appellant now appeals.

The First-tier Tribunal’s decision

  1. A Judge of the First-tier Tribunal, Judge Cohen, heard the appellant’s appeal at Hendon Magistrates’ Court and by a decision promulgated on 25th November 2019, allowed the appellant’s appeal. As was noted in the subsequent Upper Tribunal error of law decision, whilst both parties accepted that the appellant had acquired the right of permanent residence at the time of his conviction and subsequent imprisonment, the parties disputed whether the appellant was entitled to ‘serious’ or ‘imperative’ grounds of protection. The judge did not accept that integrative links were broken and concluded that the appellant was entitled to ‘imperative grounds’ protection, noting his integration in the UK, including with close family members in the UK. The FtT also concluded that the appellant’s removal would disrupt his significant efforts at rehabilitation and that deportation would be disproportionate, given what was described as his lack of connections in Poland and having previously suffered discrimination there.

The Upper Tribunal’s error-of-law decision

  1. This Tribunal set aside the FtT’s decision for reasons set out in the annexed decision. As recorded at §14 of the annexed decision, both representatives were agreed that the case of B v Land BadenWürttemberg (Case C-316/16) was authority for the proposition that a number of factors needed to be considered in making an assessment as to whether the appellant’s integrative links were broken, as at the date of the deportation decision, which in the appellant’s case included his residence of 10 years or more prior to his imprisonment and the integrative links developed in that period; the nature of his offence; the circumstances in which that offence was committed; and the appellant’s conduct during his period of detention. Whilst the FtT had made reference to his cognitive behavioural therapy in prison and his hope of reconciliation, this Tribunal accepted the respondent’s submission that the FtT’s analysis was not adequate, as it did not analyse the quality and strength of integrative links which survived the appellant’s period of imprisonment. Also, whilst the nature of the appellant’s offence and risk that he posed on release might be relevant, there was inadequate analysis of the effect of imprisonment on the appellant’s ability, on release, to continue his relationship with his former British partner and to maintain links with other family and friendship groups. In setting aside the FtT’s decision, this Tribunal did so without preserved findings of fact or conclusions, including in relation to the assessment under Article 8.

  2. Re-making of the decision was retained in the Upper Tribunal.

The hearing before us

  1. We are grateful for the well-ordered bundles prepared by the parties’ legal representatives and the relevant written submissions provided by the appellant’s Counsel, Mr Khubber, both of which have assisted us. We were provided with two bundles of documents, which we identify as the appellant’s bundle (‘AB’); the respondent’s bundle (‘RB’); and separately, a loose, updated police national computer (‘PNC’) record which indicated the appellant’s most recent criminal conviction for driving whilst under the influence of drugs. Without criticism of Mr Kotas, he had not provided a skeleton argument on behalf of the respondent but provided focussed and relevant oral submissions. We do not recite the submissions, unless necessary.

  2. We heard evidence from the appellant alone, who adopted his evidence and was cross-examined by Mr Kotas. He did so without the need for an interpreter. At the beginning of the hearing, Mr Khubber indicated that the parties agreed that the appellant should be treated as a vulnerable witness for the purposes of the Joint Presidential Guidance Note No 2 of 2010: Child, vulnerable adult and sensitive appellant guidance, by virtue of his PTSD. We explored with Mr Khubber what practical steps we should take to assist the appellant’s participation in the hearing. He indicated that he was content that were a break in the proceedings necessary, either he or the appellant should indicate, and we were requested to accommodate this accordingly. We were happy to provide this assurance and confirmed to the appellant that if he needed a break he should say so. We were also conscious of the appellant’s vulnerability with PTSD when assessing the credibility of his evidence, which we come on to discuss later in these reasons.

The agreed issues

Issue 1

  1. Having identified the documents, we agreed with the representatives the issues that we were being asked to address. In relation to the appeal under the Regulations, Mr Kotas conceded that were we to find that the appellant had ‘imperative grounds’ protection under the Regulations, the respondent no longer contended that the deportation order should stand. In that context the question was therefore whether the appellant had ‘imperative’ grounds protection by virtue of continuous integrative links, working back from 10 years prior to the date of the deportation order of 17th July 2019.

Issues 2 and 3

  1. Mr Khubber submitted that having decided what level of protection the appellant was entitled to, this in turn would inform whether, for the purposes of regulation 27(5)(c), the personal conduct of the appellant represented a genuine, present and sufficiently serious threat affecting one of the fundamental interests of society, (issue 2), taking into account the past conduct of the appellant and that the threat does not need to be imminent. In particular, what Mr Khubber submitted, and we accept, is that the ‘sufficiently serious’ level of the threat is informed by the level of protection. Mr Khubber’s case was that even if the appellant were entitled only to ‘serious grounds’ level of protection, that his offending was not sufficiently serious and at a second stage, even if it were, his deportation was disproportionate (issue 3).

  2. We explored with the representatives whether we needed to make a separate determination in respect of any claimed rights under Article 8 ECHR. Mr Khubber indicated that it may well be the case that any analysis under Article 8 would not yield a different result. He was concerned that the law...

To continue reading

Request your trial

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT