Upper Tribunal (Immigration and asylum chamber), 2023-02-22, DA/00013/2021
| Appeal Number | DA/00013/2021 |
| Hearing Date | 14 November 2022 |
| Published date | 09 March 2023 |
| Date | 22 February 2023 |
| Status | Unreported |
| Court | Upper Tribunal (Immigration and Asylum Chamber) |
Appeal Number: DA/00013/2021 (UI-2022-001679)
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IN THE UPPER TRIBUNAL IMMIGRATION AND ASYLUM CHAMBER |
Ce-File Number: UI-2022-001679 First-tier Tribunal No: da/00013/2021 |
THE IMMIGRATION ACTS
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Heard at Bradford IAC On the 14 November 2022
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Decision & Reasons Promulgated On the 22 February 2023
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Before
UPPER TRIBUNAL JUDGE REEDS
Between
THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Appellant
and
ANDREJS SAVELJEVS
(AnonYmity order NOT made)
Respondent
Representation:
For the Respondent: Mr Diwnycz, Senior Home Office Presenting Officer
For the Respondent: Mr Habte-Mariam, instructed on behalf of the respondent
DECISION AND REASONS
Introduction:
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The Secretary of State appeals, with permission, against the determination of the First-tier Tribunal (Judge Mensah) promulgated on 28 March 2022. By its decision, the Tribunal allowed the appellant’s appeal against the Secretary of State’s decision dated 17 December 2020 to deport him from the United Kingdom.
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For the purposes of this decision, I refer to the Secretary of State for the Home Department as the respondent and to Andrejs Saveljeves as the appellant, reflecting their positions before the First-tier Tribunal.
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The First-tier Tribunal did not make an anonymity order and no grounds have been advanced on behalf of the appellant to make such an order.
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The decision to deport was made under Regulation 27 of the Immigration (European Economic Area) Regulations 2016 (“the 2016 Regulations”). The appellant’s case was that the decision was not in accordance with Regulation 27 and Schedule 1 of the Regulations, and/or that it was incompatible with his rights under Article 8 of the Convention, and thus unlawful by reason of S.6 of the Human Rights Act 1998.
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The Secretary of State appealed and permission to appeal was refused by the First-tier Tribunal but on renewal was granted by UTJ O’Callaghan for the following reasons:
“The respondent seeks permission to appeal a decision of the FtT allowing the appellant’s appeal against a decision to deport him to Latvia.
It is arguable that the FtT erred in law, at [13]-[17], when concluding that the appellant enjoyed imperative grounds protection by not calculating the required 10 years backwards from the date of the respondent’s decision: Case C-400/12 Secretary of State for the Home Department v. MG (Portugal) EU:C:2014.9, [2014] 1 WLR 2441, at [24]. 3.
Additionally, it is arguable that the FtT failed to adequately consider whether the appellant’s period of imprisonment broke his integrative links with this country. In respect of the challenge to the FtTJ’s alternative conclusion that the appellant is not a genuine, present and sufficiently serious threat affecting one of the fundamental interests of society, I am satisfied, just, that it is arguable that the reasons given are inadequate.”
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The hearing took place on 14 November 2022, Mr Diwnycz, Senior Presenting Officer appeared on behalf of the respondent and Mr Habte-Mariam appeared on behalf of the appellant.
Background:
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The key factual background is set out in the decision of the FtTJ, the decision letter, and the bundles of documentation. It was recorded in the decision of the FtTJ that the immigration history that she had set out and summarised in her decision was agreed between the parties ( see paragraph 8 of th FtTJ’s decision).
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The appellant is a citizen of Latvia. The date of arrival is not specified but it is stated that he arrived in the United Kingdom in 2004. In 2011 he sought a registration certificate and on 5 April 2011 was issued with an EEA registration certificate as an EEA national. On 4 April 2017, the appellant was issued with a document certifying his permanent residence in the United Kingdom.
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On 19 June 2020, the appellant was convicted of possession of an imitation firearm with intent to cause fear and was sentenced to a period of 30 months in imprisonment. The FtTJ summarised the sentencing remarks at paragraph 4 of her decision. The FtTJ recorded at paragraph 5 that this offence was “extremely serious”, and it had a profound effect on the police officer involved. The sentencing judge took into account the mitigating factors, that the weapon was a toy and not loaded, that the appellant was a man of good character and a reduction of 25% was applied for the guilty plea.
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On 15 July 2020, the appellant was issued with a notice of liability to deportation and on 16 July 2020 the appellant submitted representations against his deportation.
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On 17 December 2020, a decision was made to refuse the appellant’s human rights claim in the context of his deportation. The decision is set out in a comprehensive letter of 18 pages and is a matter of record. It is therefore only necessary to summarise the essential parts.
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Between paragraphs 12 and 16 the respondent set out her position on the appellant’s residence in the United Kingdom. It was noted that the appellant claimed to have lived and worked in the UK for the last 16 years. It was accepted that the documentary evidence provided in April 2017 demonstrated that he had been resident in the UK in accordance with the EEA regulations 2016 for a continuous period of 5 years and had thus acquired a permanent right of residence. However it was not accepted that he resided in the UK for a continuous period of at least 10 years and that taking into account the documents, the period of continuous residence was taken from 1 January 2012 to 27 December 2019 (the date he was placed in custody).
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As a result, consideration was given to whether his deportation was justified on serious grounds of public policy. At paragraph 19 – 28, the respondent summarised her view of the risk of harm taking into account his conviction on 19 June 2020 and the subsequent sentence of 30 months imprisonment. The risk of reoffending was considered between paragraphs 29 – 39. The conclusion reached on the risk of harm and reoffending was that the offence for which he was convicted was a serious one as reflected in the sentence. The respondent considered that the available evidence indicated that he had a propensity to reoffend and that he represented a genuine, present and sufficiently serious threat to the public to justify his deportation on grounds of public policy. It was noted that the appellant did not have an extensive criminal record and that the offender manager had calculated his risk of reconviction is low however the respondent took the view that seriousness of the offence in the light of the full circumstances of its perpetration was indicative that he posed a significant threat.
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As to the issue of proportionality (Regulation 27 (5) (a), the respondent took into account the appellant’s age and state of health noting that it was aged 36 and had been shot in the shoulder by armed police as a consequence of his index offending. He was in good health other than the effects of the injury which included that he continued to experience discomfort in his arm, could not lift heavy objects or squeeze his fingers together or make a fist. He was undergoing physiotherapy but was told he would make a full recovery. As to his family situation he had a wife and 2 children in the UK having married in 2012. His wife had an adult son from a previous relationship. He had been separated from his wife 8 months at the time of the offence however the pre-sentence report confirmed that the appellant’s wife had made a supporting statement to the court on his behalf. The appellant claimed that he and his wife and reconciled. Whilst that was currently unsubstantiated, it was noted by the appellant’s offender manager that “his wife confirms that Mr Saveljevs had visited her and the children every day since separating at their relationship had been improving.” His son had been diagnosed with autism in both he and his wife had indicated difficulties within the family coping with his condition and this contributed to their estrangement. The appellant claimed that his family were financially dependent on him and that he had continued to financially support them whilst he was in custody as his wife had access to his account. It was accepted that the appellant enjoyed family life in the UK but was not considered on balance to argue significantly against deportation.
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Between paragraphs 52 – 54, the respondent had regard to the appellant’s economic situation, and his length of residence taking into account that he claimed to have lived and worked in the UK for 16 years. The respondent did not accept that it substantiated his claim in relation to length of residence or employment history, but it was accepted he had acquired the right of residence and have resided in the UK since 1 January 2012. It was considered that he could be financially independent in Latvia as he had been in the United Kingdom.
The appellant’s social and cultural integration was considered between paragraphs 55 – 58 where it was identified that there were factors that weighed in his favour with regard to social and cultural...
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