Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: DA/00002/2016

THE IMMIGRATION ACTS

Heard at Field House
Decision & Reasons Promulgated
On 25 October 2016
On 26 October 2016

Before

UPPER TRIBUNAL JUDGE blum

Between

SECRETARY OF STATE FOR THE HOME DEPARTMENT

Appellant
and

ANTONIO FERREIRA
(anonymity direction NOT MADE)

Respondent

Representation:

For the Appellant: Ms A Fijiwala, Senior Home Office Presenting Officer
For the Respondent: Ms C Fielden, Counsel, instructed by Lester Dominic Solicitors

DECISION AND REASONS

1. The Secretary of State for the Home Department (SSHD) appeals against the decision of Judge of the First-tier Tribunal Henderson, promulgated on 25 August 2016, in which she allowed the appeal of Antonio Ferreira (the Claimant), against the SSHD's decision of 15 December 2015 to make a deportation order against him pursuant to the Immigration (European Economic Area) Regulations 2006 (the 2006 Regulations).

Background

2. The Claimant is a national of Portugal born on 8 December 1994. He entered the United Kingdom aged 6 with his mother. He has remained here ever since. The Claimant has a long criminal history for one so young. He first began committing offences aged 13. Between November 2009 and 10 October 2014 he was convicted on 22 occasions in relation to 38 offences. His offending included offences against property, theft, drug offences, and offences relating to offensive weapons. On 12 September 2014 the Claimant was convicted of conspiracy to destroy or damage property and received a sentence of 48 months imprisonment in a Young Offender Institution.

3. The SSHD decided to the deport the Claimant under regulations 19(3)(b) and 21 of the 2006 Regulations. There was said to be no evidence that the Claimant, his mother or siblings, had exercised treaty rights in the United Kingdom. The SSHD was not satisfied that the Claimant had attained permanent residence under regulation 15 of the 2006 Regulations. The SSHD was not satisfied that the Claimant qualified for enhanced protection under regulation 21(4) (10 years residence) because his overall length of residence in the UK could not be determined and because of the amount of time that he had spent in prison in the UK. In assessing the factors under regulation 21(5) the SSHD relied on an OASys report indicating that the Claimant posed a high risk of harm to the public and that he posed a very high risk of reoffending. Having concluded that the Claimant had not adequately addressed the causes of his offending behaviour, the SSHD was of the view that the Claimant was still at risk of re-offending. Reference was made to his claim to have 3 children in the UK and a partner but the SSHD was satisfied, having regard to the Claimant's age (mistakenly given as 31 years old) and health, that it would not be disproportionate to remove him to Portugal.

4. At the hearing before the First-tier Tribunal (on 03 August 2016) it was conceded on behalf of the Claimant that he could not provide evidence of having exercised his treaty rights for a continuous period of 5 years and so could not claim a permanent right of residence [12]. At [56] the judge confirmed that both parties were in agreement that the Claimant did not have the right to permanent residence as he had never worked in the UK. At the Upper Tribunal hearing I expressed my concern to both representatives at the basis for this concession. Paragraph 56 of the decision appears to proceed on the basis that the Claimant must have worked in the UK in order to have attained permanent residence. This is not the case. Under regulation 15(1)(a) of the 2006 Regulations an EEA national who has resided in the United Kingdom in accordance with the regulations for a continuous period of 5 years shall acquire the right to reside in the UK permanently. The Claimant entered the UK as a 6-year-old, presumably being supported by his mother. Various references in the First-tier Tribunal decision (e.g. at [39]) suggested the Claimant was financially supported by his mother and that he helped her on occasion with her work as a cleaner. If the Claimant's mother was a worker or a self-employed person when she entered the UK, she would be a qualified person for the purposes of regulation 6 of the 2006 Regulations. The Claimant would, in this case, be the family member of a qualified person as he was the direct descendant of his mother and was either, at all material times, under 21 years of age, and/or dependent on his mother. This point does not seem to have been fully considered either by the Claimant's solicitors or his Counsel. The First-tier Tribunal judge cannot be criticised for not going behind a concession made by the Claimant's representatives, but the First-tier Tribunal would be entitled to revisit this issue on remittal.

5. The First-tier Tribunal judge heard evidence from the Claimant and his sister. His mother did not attend the hearing. This was said to be because she was unwell but no medical evidence was provided in support. Nor did the Claimant's claimed partner (the mother of his three children) attended the hearing. Nor did she provide a statement. From [28] to [45] the judge recorded the evidence given by the Claimant and by his sister. This included evidence relating to some courses he had completed and evidence that he had been entrusted with the position of Violence Reduction Representative at his prison. Throughout her recording of the Claimant's evidence the judge appeared to make some factual findings. For example, at [37] the judge stated that the certificates produced by the Claimant merely confirmed his attendance and that he had not shown, on the balance of probabilities, and that the findings of the OASys report had been overridden. The judge found a number of inconsistencies between the evidence given by the Claimant and his sister.

6. At [54] et seq the judge took into account the Supreme Court decision in SSHD v Frank Vomero (Italy) [2016] UKSC 49. This authority concerned the circumstances in which the enhanced protection provisions contained in Article 28(3)(a) of Directive 2004/38/EC (the free Movement Directive) could be applied to someone who did not have a permanent right of residence. A majority of the Supreme Court favoured the view that possession of a right of permanent residence was not needed in order to enjoy enhanced protection under article 28(3)(a). Nevertheless, a minority regarded the position as being unclear and so required a reference to the CJEU. The questions posed included a query as to how the period of residence for the relevant 10 year period was to be calculated.

7. At [62] the judge concluded that, in light of the referral by the Supreme Court, there was a sufficient lack of clarity on the question of whether a permanent right of residence was required in order for the Claimant to avail himself of the enhanced protection in regulation 21(4). The judge therefore concluded that the respondent's decision of December 2015 was therefore flawed.

8. The SSHD's Grounds of Appeal contended that the First-tier Tribunal judge was not entitled to rely on the majority view of the Supreme Court as the Court was unable to reach a definitive conclusion as to whether the Claimant benefited from enhanced protection.

9. A Rule 24 Response drafted by Ms Fielden agreed that the First-tier Tribunal should not have treated Vomero as definitively deciding the issue of enhanced protection. The Rule 24 Response additionally criticised the judge's decision on the basis that she failed to reach any conclusions in respect of regulation 21(5) of the 2006 Regulations. This provision requires that a relevant decision must accord 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 concerned must represent a genuine, present and sufficiently serious threat affecting one of the fundamental interests of society; (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.

10. I additionally noted the requirements of regulation 21(6): "Before taking a relevant decision on the grounds of public policy or public security in relation to a person 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 the person, the person's length of residence in the United Kingdom, the person's social and cultural integration into the United Kingdom and the extent of the person's links with his country of origin."

11. After some discussion it was accepted at the hearing by Ms Fijiwala that, although the judge criticised the SSHD's decision under regulation 21(6) (at [60]), she had not herself considered or applied those requirements to the factual matrix before her. Indeed it was difficult to discern a full range of factual findings by the judge. The judge's assessment at [60] was more akin to a review of the lawfulness of the SSHD's underlying decision rather than an independent merits assessment as required. I also accept the criticism mounted by Ms Fielden in relation to the failure by the judge to clearly consider or apply the requirements of regulation 21(5).

12. In these circumstances it was agreed by both representatives that the most appropriate course of action would be to remit the matter back to the 1st tier Tribunal for an entirely fresh hearing, all issues open.

Notice of Decision

The First-tier Tribunal decision is vitiated by a material error of law.
The matter will be remitted for a full fresh hearing at Taylor House before a judge other than judge of the First-tier Tribunal Henderson.

No anonymity direction is made.

Signed Date

Upper Tribunal Judge Blum 25 October 2016