Upper Tribunal (Immigration and asylum chamber), 2022-08-03, DA/00229/2021

Upper Tribunal (Immigration and Asylum Chamber)

Appeal Number: UI-2022-000571 [DA/00229/2021]

THE IMMIGRATION ACTS

Heard at Field House	Decision & Reasons Promulgated
On 14 June 2022	On 3 August 2022

Before

UPPER TRIBUNAL JUDGE BLUNDELL

Between

SECRETARY OF STATE FOR THE HOME DEPARTMENT

Appellant

and

bianca maria koslowski

(ANONYMITY DIRECTION not made)

Respondent

Representation:

For the Appellant: Susana Cunha, Senior Presenting Officer

For the Respondent: Hollie Higgins, instructed by the AIRE Centre

DECISION AND REASONS

1. The Secretary of State appeals, with permission granted by First-tier Tribunal Judge Boyes, against the decision of First-tier Tribunal Judge Bart-Stewart, who allowed Ms Koslowski’s appeal against the decision to deport her from the United Kingdom.

2. In order to avoid confusion, I shall refer to the parties as they were before the First-tier Tribunal: Ms Koslowski as the appellant and the Secretary of State for the Home Department as the respondent.

Background

3. The appellant is a German national who was born on 17 December 1974. She is said to have arrived in the United Kingdom in 2002. She was granted an EEA Residence Permit as an EEA national exercising Treaty Rights on 7 February 2003.

4. On 7 November 2018, following an eight week trial at Wood Green Crown Court, the appellant was convicted of making false representations in order to make gains for herself. She had made false claims for interpretation services, significantly defrauding the taxpayer between the years 2010 to 2016. On 12 November 2018, she was sentenced by HHJ Kaul QC to five years’ imprisonment for that offence.

5. On 23 February 2021, following the usual exchange of correspondence, the respondent decided to make a deportation order against the appellant. The respondent did not accept that the appellant had acquired ‘imperative grounds’ protection against deportation: [11]-[20]. She therefore assessed whether the appellant’s deportation was justified on serious grounds of public policy or public security. The respondent concluded that the appellant represented a genuine, present and sufficiently serious threat to the fundamental interests of the United Kingdom: [22]-[37]. Having considered the factors in regulation 27(6) of the Immigration (EEA) Regulations 2016, and to the appellant’s prospects of rehabilitating in Germany and the UK, the respondent concluded that it would be proportionate to deport the appellant from the United Kingdom: [39]-[50]. For reasons she gave at [51]-[63], the respondent concluded that the appellant’s deportation would be proportionate in terms of Article 8 ECHR.

The Appeal to the First-tier Tribunal

6. The appellant appealed. Her appeal came before the Judge Bart-Stewart (the judge), sitting at Taylor House on 19 January 2022. The appellant was represented by Ms Higgins, as she was before me. The respondent was represented by Ms Davis, a Presenting Officer. The judge received evidence from the appellant via a British Sign Language (“BSL”) interpreter. She received submissions from Ms Davis and Ms Higgins before reserving her decision.

7. In her reserved decision, the judge concluded that the appellant should benefit from the highest level of protection against deportation. She did not accept that the appellant represented a genuine, present and sufficiently serious threat to the fundamental interests of the United Kingdom. She did not consider that it would be proportionate to deport the appellant from the United Kingdom.

The Appeal to the Upper Tribunal

8. The respondent’s grounds of appeal are not properly delineated into separate, particularised complaints of legal error, as required by Nixon [2014] UKUT 368 (IAC) and Harverye v SSHD [2018] EWCA Civ 2848. After a short paragraph entitled ‘Background’, there are eight further paragraphs, all of which appear under a sub-heading which is “Ground one: Failing to give adequate reasons for findings on a material matter”. On analysis, however, there are three grounds of appeal:

1. The judge failed to give adequate reasons for concluding that the appellant’s integrative links to the UK had not been broken by her term of imprisonment;

2. The judge failed to give adequate reasons, or failed to take account of material matters, when concluding that the appellant’s conduct did not represent a genuine, present and sufficiently serious threat to the fundamental interests of the UK; and

3. The judge failed to give adequate reasons or to take account of material matters when concluding that the appellant’s deportation would be disproportionate.

9. Permission was granted by Judge Boyes on each of these grounds.

10. In compliance with directions issued by an Upper Tribunal Lawyer, Ms Higgins filed a detailed response to the notice of appeal under rule 24. The respondent filed a rather shorter skeleton argument.

Submissions

11. At the outset of her submissions, Ms Cunha indicated that the first of the grounds I have summarised above was formally abandoned. She proceeded to make focused submissions on the remaining two grounds. The judge had failed, she submitted, to take account of the sums defrauded from the taxpayer; the cost of the eight week trial; the lack of any remorse on the part of the appellant; and the absence of any rehabilitative courses undertaken. All of these matters were relevant to the assessment of risk and had been overlooked by the judge. In relation to the third ground, the appellant’s health needs would obviously be met in Germany and the reasons for finding that her removal would be disproportionate were inadequate or altogether absent.

12. In her admirably concise submissions, Ms Higgins adopted her rule 24 response and submitted that the judge’s decision was careful and thorough in every respect. She had clearly borne all relevant matters in mind when considering the level of risk posed by the appellant and the proportionality of the decision. She submitted, as she had in her rule 24 response, that the respondent’s appeal was hopeless. The judge had been cognisant of the facts and had evaluated them in a nuanced way which the grounds of appeal failed to understand. The burden was on the respondent to show that the appellant represented a threat. She had produced no evidence and the appellant’s past conduct could not suffice in itself. The respondent’s appeal should be dismissed.

13. In reply, Ms Cunha submitted that the appellant’s crime was so serious that it outweighed all else.

14. I reserved my decision at the end of the submissions.

Analysis

15. Given Ms Cunha’s concession in relation to the first ground of appeal, I propose to say nothing more about it other than to observe that the finding that the appellant retains the highest level of protection against deportation is relevant to my evaluation of the two grounds which were ultimately pursued by the Secretary of State. It is necessarily more difficult for the respondent to show that any threat posed by such a person is sufficiently serious so as to justify deportation or that it is proportionate to deport a person with such a level of integration in the host state.

16. I agree with Ms Higgins submission that the respondent’s second ground is hopeless. The judge’s decision runs to eighteen pages of single-spaced type, comprising 61 paragraphs of closely reasoned analysis. It is a careful and thorough decision and it is clear that the judge took all relevant matters into account in her assessment of the level of threat posed by the appellant.

17. As Ms Higgins observed, all of the matters which are said by the respondent to have been left out of account are expressly recorded in the judge’s decision. Paragraph [6] of her decision shows that she was aware of the sums of money which the appellant had defrauded from the taxpayer. In the same paragraph, the judge recorded that the fraud had taken place over the course of a six year period; that the appellant had made some 300 claims during that period; and that she had had many opportunities to stop what she was doing. The judge also recorded in that paragraph that the sentencing judge (HHJ Kaul QC) had observed that the eight week trial had probably cost the same as the offence and that the appellant must have known all along that she had no defence.

18. The judge set out a detailed summary of the respondent’s position at [7]-[21] of her decision. Under the sub-heading ‘Assessment of threat’, the judge summarised the matters which were said by the respondent to bear on that assessment, including the appellant having ‘relentlessly defrauded the tax payer’; the fact that the appellant could have ‘stopped and walked away’; and the length and cost of the trial: [12]. There was also reference, in [13] and [14], to the sophisticated nature of the fraud; the high level of culpability; and the absence of any rehabilitative programmes undertaken by the appellant. The judge specifically noted the respondent’s stance that the appellant displayed a lack of remorse and a ‘lack of understanding of the...