Upper Tribunal (Immigration and asylum chamber), 2023-10-09, UI-2022-006326
| Appeal Number | UI-2022-006326 |
| Hearing Date | 30 August 2023 |
| Date | 09 October 2023 |
| Published date | 24 October 2023 |
| Status | Unreported |
| Court | Upper Tribunal (Immigration and Asylum Chamber) |
Appeal Number: UI-2022-006326 (DA/00061/2022)
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IN THE UPPER TRIBUNAL IMMIGRATION AND ASYLUM CHAMBER |
Case No: UI-2022-006326 First-tier Tribunal No: DA/00061/2022 |
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THE IMMIGRATION ACTS
Decision & Reasons Issued:
On 9th October 2023
Before
UPPER TRIBUNAL JUDGE gleeson
Between
the Secretary of State for the Home Department
Appellant
and
arian gkotsis
(NO ANONYMITY ORDER MADE)
Respondent
Representation:
For the Appellant: Mr Toby Lindsey, a Senior Home Office Presenting Officer
For the Respondent: Mr Jay Gajjar of Counsel, instructed by Briton Solicitors
Heard at Field House on 30 August 2023
DECISION AND REASONS
Introduction
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The Secretary of State challenges the decision of the First-tier Tribunal allowing the claimant’s appeal against her decision on 7 April 2022 to refuse his application for indefinite leave to remain under the EU Settlement Scheme (the EUSS). The claimant is a citizen of Greece and a foreign national offender.
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The reason given for refusal of EUSS status was that at the date of decision, the claimant was the subject of an active deportation order as defined in Annex 1 of Appendix EU.
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On 23 March 2022 the Secretary of State notified the claimant that he was liable to deportation pursuant to section 32(5) of the UK Borders Act 2007, and on 28 March 2022, she made a deportation order thereunder.
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A separate Article 8 ECHR claim was made on 29 June 2022, but refused on 19 July 2022 and certified clearly unfounded pursuant to section 94(1) of the Nationality, Immigration and Asylum Act 2002 (as amended). I am not concerned with that decision in this appeal. This appeal lies against the EUSS decision refused on 7 April 2022.
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For the reasons set out in this decision, I have come to the conclusion that the Secretary of State’s appeal should be allowed. I will remake the decision by dismissing the claimant’s appeal.
Procedural matters
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Mode of hearing. The hearing today took place face to face. There was no oral evidence.
Criminal history
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The claimant has been in the UK for an unknown period of time, but on his account began visiting and staying in the UK in 2013, when he would have been 23 years old. The Secretary of State’s records show 44 exits and entries from the UK, over the period 14 July 2015 to 16 December 2019. The claimant’s own account was that he arrived in 2013 but travelled back to Greece fairly regularly between 2013 and 2019, though he was not prepared to say how often he did so.
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The claimant is a persistent offender with multiple convictions for drugs offences and associated motoring offences, his known history beginning with a drugs conviction in Greece in 2011, when he was 25 years old. His father died on 28 June 2019 and the claimant ascribed his UK criminality to the extremely serious effect on him of his father’s death, which led him to begin using cocaine heavily. Between 2020 and 2021, he accrued seven arrests and convictions in the UK, three for conduct before the specified date of 11 p.m. on 31 December 2020, and four for conduct which occurred after that date.
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The claimant’s offending history may be summarised thus:
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15 December 2011, convicted in Greece of drug offences, sentenced to 6 years’ imprisonment and a fine of €5000;
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7 July 2020, convicted of possession of Class A controlled drugs and sentenced to a community order, an unpaid work requirement, a victim surcharge and a drug rehabilitation requirement.
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21 July 2020, following another drugs arrest, the claimant was referred to the Foreign Conviction Team within the Secretary of State’s Foreign National Offender Command. He was assessed as meeting the EEA deportation threshold but not deported because he had pending criminal proceedings;
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16 January 2021, convicted of drug-driving, fined £200, disqualified from driving for 24 months (until 16 January 2023), and ordered to pay costs and a victim surcharge;
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In late May 2021, the claimant returned to Greece to visit his son. He spent two weeks there and arrived back on 13 June 2021. On arrival, he was refused entry, due to his criminality in both Greece and the UK, but given immigration bail pending the outcome of cases in the Magistrates' Court. He absconded, and continued his criminality:
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5 August 2021, convicted of drug driving, driving whilst disqualified (in February 2021), driving without insurance and with no driving licence. He was sentenced to a community order, unpaid work, a drug rehabilitation requirement, costs and a victim surcharge. The claimant absconded;
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9 September 2021, arrest warrant issued for failure to appear in Sussex (Central) Magistrates' Court. The claimant was given immigration bail and required to appear on 28 September 2021. He absconded again and the Secretary of State initiated absconder action;
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16 December 2021, the claimant was arrested for driving offences, and an outstanding arrest warrant following his having absconded again. A large amount of susd Class A drugs, a sizeable amount of cash, and a quantity of SIM cards were found. At the date of hearing, no charges had been brought regarding this discovery;
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17 December 2021, following a breach of the community order, the claimant was sent to prison for 6 weeks concurrent, and the community order revoked. He was also was convicted of driving whilst disqualified and sentenced to 12 weeks’ imprisonment consecutive, and the driving disqualification increased to 4 years. His driving licence was endorsed. There was no separate penalty for driving whilst uninsured. The claimant would be disqualified from driving until an extended test was passed, and he was ordered to pay costs and a victim surcharge;
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Deportation decision
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The claimant was given a stage 1 deportation letter in February 2022, to which he did not respond. On 10 March 2022, having completed his custodial sentence, the claimant remained in immigration detention. On 21 April 2022, he was released, but required to wear a tag. The claimant did not engage with Probation, and missed two appointments, for reasons which the First-tier Judge considered. He was not living at his notified address, but elsewhere with his UK partner. The claimant asserts that despite having lived in the UK for 10 years, his English is not good and he needs his partner to help him deal with authorities.
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On 29 March 2022, an EEA Stage 2 deportation decision was made and the deportation order and decision were served the same day. The Secretary of State’s EEA deportation decision was made under section 5(1) of the Immigration Act 1971 with reference to section 3(5) and/or 3(6) of that Act. There was no right of appeal.
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The claimant was notified that if he was lawfully resident under the Immigration (European Economic Area) Regulations 2016 (as saved) at 23:00 GMT on 31 December 2020, and had an outstanding in-time EUSS application or outstanding EUSS appeal rights, any deportation order under the 2016 Regulations would carry a right of appeal. Under the heading ‘Relevant person protected by the Withdrawal Agreements’, the Secretary of State referred to deportation being pursued ‘by way of the UK Borders Act 2007/Immigration Act 1971’.
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On 31 March 2022, the claimant made an EUSS application. On 7 April 2022, the Secretary of State refused that application and served her refusal on him at HMP Lewes. Removal directions were requested the following day. On 16 May 2022, the claimant still failing to engage with Probation, another arrest warrant was issued. On 7 June 2022, the claimant attended Coventry Police Station and was arrested.
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The claimant appealed to the First-tier Tribunal.
First-tier Tribunal decision
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First-tier Judge Malone set out at [13]-[14] a self-direction that the claimant was required to show that the Secretary of State’s decision was not in accordance with Appendix EU and/or with Regulation 27 of the Immigration (European Economic Area) Regulations 2016 (as saved). He heard argument on the Article 8 issues also. His understanding of Appendix EU was that all matters relied upon by both parties at date of hearing required consideration.
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At [62], the First-tier Judge recognised that the claimant’s offences were very serious, although he had not received a custodial sentence in the UK until 17 December 2021, for 24 weeks’ imprisonment.
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The First-tier Judge considered the claimant to be an impressive and credible witness who gave his evidence ‘without guile’. The judge accepted the claimant’s account of his arrival in 2013 and subsequent employment history, working as a painter and decorator from 2013-2015, and from 2015, as a trainee as a chef, for which he received very little pay. He was only earning enough to pay tax from 2017. It was unclear whether his painting and decorating work continued alongside the chef training.
The First-tier Judge accepted the Secretary of State’s assessment that the claimant was a worker with...
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