Upper Tribunal (Immigration and asylum chamber), 2023-11-13, UI-2022-004360
| Appeal Number | UI-2022-004360 |
| Hearing Date | 14 September 2023 |
| Date | 13 November 2023 |
| Published date | 28 November 2023 |
| Status | Unreported |
| Court | Upper Tribunal (Immigration and Asylum Chamber) |
Appeal Number: UI-2022-004360 (DA/00250/2021)
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IN THE UPPER TRIBUNAL IMMIGRATION AND ASYLUM CHAMBER |
Case No: UI-2022-004360 |
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First-tier Tribunal No: DA/00250/2021 |
THE IMMIGRATION ACTS
Decision & Reasons Issued:
13th November 2023
Before
UPPER TRIBUNAL JUDGE STEPHEN SMITH
Between
Nicolae Burta Verde
(AKA Nicolae Baldea Ciuinel)
(NO ANONYMITY DIRECTION MADE)
Appellant
and
Secretary of State for the Home Department
Respondent
Representation:
For the Appellant: Mr G. Hodgetts, Counsel instructed by Cross Legal Services
For the Respondent: Ms S. Cunha, Senior Home Office Presenting Officer
Heard at Field House on 14 September 2023
DECISION AND REASONS
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This is an appeal against a decision of the Secretary of State dated 14 September 2021 to deport the appellant, a citizen of Romania born on 30 November 1989, from the United Kingdom pursuant to regulation 23(6)(b) of the Immigration (European Economic Area) Regulations 2016 (“the 2016 Regulations”). The appeal is brought under regulation 36.
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The Secretary of State pursues the appellant’s deportation on account of his conviction, following a trial, of three offences of incident exposure, committed on 25 June 2019, 17 January 2020 and 3 February 2020, for which he was sentenced to a total of twelve months’ imprisonment. The victims in each case were young girls whom the appellant had deliberately targeted by masturbating in front of them on a route used by families and children for travelling to school.
Principal controversial issues
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The principal controversial issues are:
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The total length of the appellant’s residence. He claims to have resided in the UK since 2008. That is disputed by the Secretary of State, whose case it is that the appellant’s residence can only be established from 2012 at the earliest. The Secretary of State accepted before the First-tier Tribunal (see paras 4 and 5, below) that the appellant enjoys the right of permanent residence, and has not applied to withdraw that concession;
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If the appellant had resided in the UK for a period of ten continuous years before the Secretary of State’s deportation decision, whether the effect of his sentence of imprisonment and the circumstances of his offending was to break any integrating links he had previously forged;
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Whether, in any event, the appellant’s deportation would be lawful under regulation 27 of the 2016 Regulations.
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Procedural context
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The appellant’s appeal was originally heard and dismissed by First-tier Tribunal Judge Bart-Stewart (“the judge”) by a decision promulgated on 18 May 2022. The appellant’s appeal against that decision was heard and allowed by a panel of the Upper Tribunal (Mr Justice Dove, President, Upper Tribunal Judge Mandalia) by a decision promulgated on 19 July 2023. A copy of that decision may be found in the Annex to this judgment.
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The panel set the judge’s decision aside and directed that the appeal be reheard in the Upper Tribunal, acting under section 12(2)(b)(ii) of the Tribunals, Courts and Enforcement Act 2007. It is against that background that the matter has been listed before me, sitting alone.
Factual background
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The appellant pleaded Not Guilty to the offences for which he was later convicted following a trial in the Crown Court. His defence had been that he was not masturbating. He had merely been urinating, with no sexual motive.
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The appellant was convicted of three offences and acquitted of one offence. On 4 February 2021, he was sentenced by HHJ Gower QC, who observed that appellant’s offending was conducted in exactly the same place on each occasion, a gap in a hedge that runs alongside a route that was frequented by children, alone or with their parents, when returning home from school. The offences were committed shortly after school had finished for the day. Judge Gower said that the appellant’s conduct involved deliberate targeting, if not of the identified victim herself, but other girls of a similar (13 or 14) age or younger.
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Judge Gower said it was clear from the jury’s verdicts that the appellant masturbated on each occasion with the intention that he would be seen doing so, that those who saw him would be caused alarm or distress, and that he did so for his own sexual gratification. The identified victim who had witnessed the appellant’s crimes captured some of his conduct using a telephone, and the footage was passed to the police. The appellant was apprehended and charged with three counts of indecent exposure. He denied the offences, thereby requiring the primary victim to give evidence at trial. Due to the impact of the Covid pandemic, the trial was delayed, meaning that the prospects of giving evidence against the appellant was looming over the young victim for a considerable period.
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Judge Gower said that the impact on the appellant’s primary victim had been “profound and long-lasting”. It led to her having nightmares. She was no longer able to feel safe while walking home from school using that route, or even in the fields nearby. She blamed herself and, as Judge Gower noted, had written in her victim impact statement that, “somehow a disgusting man has made me blame myself for something I did not do.”
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In addition to the sentence of 12 months’ imprisonment, the appellant was made the subject of a Sexual Harm Prevention Order for seven years and informed that he was subject to the notification requirements of the Sex Offenders’ Register for 10 years.
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For the above convictions, the Secretary of State pursued the appellant’s deportation.
THE LAW
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It is common ground that the 2016 Regulations continue to apply to these proceedings.
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Regulation 23(6)(b) makes provision of the exclusion of certain persons from the United Kingdom where 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…”
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Where relevant, regulation 27 provides:
“(1) In this regulation, a “relevant decision” means an EEA decision taken on the grounds of public policy, public security or public health.
[…]
(3) A relevant decision may not be taken in respect of a person with a right of permanent residence under regulation 15 except on serious grounds of public policy and public security.
(4) A relevant decision may not be taken except on imperative grounds of public security in respect of an EEA national who—
(a) has a right of permanent residence under regulation 15 and who has resided in the United Kingdom for a continuous period of at least ten years prior to the relevant decision…
(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—
(a) the decision must comply with the principle of proportionality;
(b) the decision must be based exclusively on the personal conduct of the person concerned;
(c) 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;
(d) matters isolated from the particulars of the case or which relate to considerations of general prevention do not justify the decision;
(e) a person's previous criminal convictions do not in themselves justify the decision;
(f) 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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Schedule 1 to the 2016 Regulations sets out a number of considerations to which I must have regard when taking a decision under regulation 27.
Article 8 ECHR
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Since this is a removal case, the tribunal enjoys the jurisdiction to consider Article 8 of the European Convention on Human Rights (“ECHR”). Part 5A of the Nationality, Immigration and Asylum Act 2002 (“the 2002 Act”) lists a number of considerations to which I must have regard when considering the proportionality of the appellant’s prospective removal.
Section 117C(1) of the 2002 Act provides that the deportation of “foreign criminals” is in the public interest for the purposes of determining the proportionality of deportation under Article 8(2) of the European Convention on Human Rights (“the ECHR”). The appellant satisfies the definition of foreign criminal for the purposes of this section...
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