Upper Tribunal (Immigration and asylum chamber), 2023-02-21, DA/00033/2022
| Appeal Number | DA/00033/2022 |
| Hearing Date | 06 December 2022 |
| Published date | 08 March 2023 |
| Date | 21 February 2023 |
| Status | Unreported |
| Court | Upper Tribunal (Immigration and Asylum Chamber) |
Appeal Number: UI-2022-003898 [DA/00033/2022]
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IN THE UPPER TRIBUNAL IMMIGRATION AND ASYLUM CHAMBER |
Case No: UI-2022-003898 First-tier Tribunal No: DA/00033/2022 |
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THE IMMIGRATION ACTS
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Heard at Field House IAC On the 6 December 2022
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Decision & Reasons Promulgated On the 21 February 2023
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Before
THE HON. MRS JUSTICE THORNTON
[SITTING AS A JUDGE OF THE UPPER TRIBUNAL]
UPPER TRIBUNAL JUDGE SMITH
Between
ADRIAN LUCA
[ANONYMITY ORDER NOT MADE]
Appellant
and
THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent
Representation:
For the Appellant: Mr Clarke, Senior Presenting Officer.
For the Respondent: Mr Slatter instructed by TMC Solicitors
DECISION AND REASONS
Introduction
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The Secretary of State for the Home Department appeals, with permission, against the decision of the First Tier Tribunal, promulgated 4 July 2022, upholding Mr Luca’s appeal against her decision, dated 16 March 2022, to make a deportation order, on grounds of public policy and security, pursuant to Regulations 23(6) and 27 of the Immigration (European Economic Area) Regulations 2016 (2016/1052) (the ‘EEA Regulations’). It is common ground that the EEA Regulations, as saved, apply.
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For ease of reference, the parties are referred to in this decision as they were in the First Tier Tribunal (i.e references to the Appellant are to Mr Luca and references to the Respondent are to the Secretary of State).
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At the end of the oral hearing on 6 December 2022, we notified the parties that our decision is that we are not persuaded of any error of law by the First Tier Tribunal. These are the written reasons for our decision.
Legal Framework
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Regulation 23(6) of the EEA Regulations provides, in relevant part, as follows:
Exclusion and removal from the United Kingdom
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(6) Subject to paragraphs (7) and (8), an EEA national who has entered the United Kingdom or the family member of such a national who has entered the United Kingdom may be removed if—
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the Secretary of State has decided that the person’s removal is justified on grounds of public policy, public security or public health in accordance with regulation 27; or
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Regulation 27 of the Regulations provides, in relevant part, as follows:
27.- (1) In this regulation, a “relevant decision” means an EEA decision taken on the grounds of public policy, public security or public health.
(2) A relevant decision may not be taken to serve economic ends.
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(4) A relevant decision may not be taken except on imperative grounds of public security in respect of an EEA national who—
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has resided in the United Kingdom for a continuous period of at least ten years prior to the relevant decision; or
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is under the age of 18, unless the relevant decision is in the best interests of the person concerned, as provided for in the Convention on the Rights of the Child adopted by the General Assembly of the United Nations on 20th November 1989(1).
(5) The public policy and public security requirements of the United Kingdom include restricting rights otherwise conferred by these Regulations in order to protect the fundamental interests of society, and where a relevant decision is taken on grounds of public policy or public security it must also be taken in accordance with the following principles—
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the decision must comply with the principle of proportionality;
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the decision must be based exclusively on the personal conduct of the person concerned;
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the personal conduct of the person must represent a genuine, present and sufficiently serious threat affecting one of the fundamental interests of society, taking into account past conduct of the person and that the threat does not need to be imminent;
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matters isolated from the particulars of the case or which relate to considerations of general prevention do not justify the decision;
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a person’s previous criminal convictions do not in themselves justify the decision;
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the decision may be taken on preventative grounds, even in the absence of a previous criminal conviction, provided the grounds are specific to the person.
(6) Before taking a relevant decision on the grounds of public policy and public security in relation to a person (“P”) who is resident in the United Kingdom, the decision maker must take account of considerations such as the age, state of health, family and economic situation of P, P’s length of residence in the United Kingdom, P’s social and cultural integration into the United Kingdom and the extent of P’s links with P’s country of origin.
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(8) A court or tribunal considering whether the requirements of this regulation are met must (in particular) have regard to the considerations contained in Schedule 1 (considerations of public policy, public security and the fundamental interests of society etc.).
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Schedule 1 sets out relevant considerations of public policy and public security and a (non-exhaustive) list of the fundamental interests of society.
The Appellant’s immigration and criminal history
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The Appellant is a Romanian national born on 24 July 1976. The Respondent accepts that he has been living in the UK since at least 2000 and has acquired permanent residence.
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The Respondent’s decision sets out his immigration and criminal history.
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The Appellant claimed to have arrived in the UK in September 1998, entering the UK alone at approximately 21 years of age. Romania had not yet joined the EU at that time so the Appellant would have been subject to immigration control on arrival. Romania joined the EU on 01 January 2007, and the Appellant would have been exercising the right of free movement as an EEA national from that date.
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In June 2000 the Appellant was convicted of obtaining pecuniary advantage by deception and theft and received a conditional discharge. In March 2007 he received a caution for common assault. In June 2011 he was convicted of driving otherwise than in accordance with a licence, using a vehicle while uninsured, aggravated vehicle taking and damage to property. In July 2011 he was sentenced to a community order and disqualified from driving. In July 2011 he was convicted of possession of a false/improperly obtained identity document for which he received a suspended imprisonment order of 3 months. In July 2012 he was convicted of failing to comply with the community requirement of a suspended sentence. In January 2013 he was convicted of possession of a controlled drug, Class B, and received a fine. In May 2018 he received a caution for destroying or damaging property. In December 2018 he was convicted of making false representations, for which he received a suspended imprisonment of nine months. Most recently, and seriously, on 22 December 2020 he was convicted of causing grievous bodily harm, with intent to do grievous bodily harm, for which he received a sentence of six years imprisonment.
The Secretary of State’s decision
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The Respondent’s decision letter concludes that deportation is justified on imperative grounds of public security, as follows:
77. You have committed a serious criminal offence in the United Kingdom and, as explained above, the professional assessment is that there is a real risk that you may re-offend in the future. You have made representations and account has been taken of these. Nevertheless, for the reasons set out above, and in particular the genuine, present and sufficiently serious threat you pose to one of the fundamental interests of United Kingdom society, it is considered that your deportation is justified on grounds of public policy/public security in accordance with regulation 23(6)(b) of the EEA Regulations 2016, as saved. Your personal circumstances have been considered but our view is that, given the threat you pose, the decision to deport you is proportionate and in accordance with the principles of regulations 27(5) and (6).
The decision cites the Appellant’s criminal convictions; identifies the offence of GBH as a very serious offence; sets out the sentencing remarks on conviction; analyses the OASYS assessment; identifies the absence of a genuine and subsisting relationship with the Appellant’s son in the UK. In terms of reoffending, the decision states that the Appellant has demonstrated the capability to cause psychological and physical harm to others whilst under the influence of alcohol and drugs; refers to the six previous convictions dating back to 2000; notes there are no previous convictions for violent offending before the conviction for GBH, save for a caution for common assault in 2007. Despite the Appellant’s attendance on offence-related courses while in custody, including Alcoholics Anonymous, this does not in itself rehabilitate an offender or guarantee that the risk of re-offending will reduce after release and there is insufficient evidence that the Appellant has fully and permanently addressed all the reasons for the offending behaviour. Even though the courts have afforded seven opportunities to rehabilitate, the Appellant has repeatedly continued to offend. It is...
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