Tribunal decisions

The decision

IAC-FH-AR-V1

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: DA/00029/2016

THE IMMIGRATION ACTS

Heard at Field House
Decision & Reasons Promulgated
On 10 November 2016
On 17 November 2016

Before

UPPER TRIBUNAL JUDGE KING TD

Between

FORTUNATA [P]

Appellant
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT

Respondent

Representation:

For the Appellant: Miss J Hassan, Counsel, instructed by The AIRE Centre
For the Respondent: Mr T Melvin, Home Office Presenting Officer

DECISION AND REASONS

1. The appellant is a citizen of Poland born on 14 December 1983.

2. The appellant arrived in the United Kingdom in November 1996 with her mother. Following her mother's unsuccessful asylum claim she remained in the United Kingdom without leave. She returned to Poland but came back to the United Kingdom where once again her mother's asylum appeal was unsuccessful. She remained without leave after 18 May. She was, however, part of her mother's application for indefinite leave to remain made in March 2004 and was granted indefinite leave to remain on 1 April 2004 prior to Poland acceding to the European Union on 1 May 2004.

3. The appellant was convicted of a number of offences. She was cautioned for two thefts by way of shoplifting in January 1997. In March 2010 she was convicted of pick-pocketing on a bus as part of a team. She was convicted of shoplifting in April 2011 and was sentenced in 2014 for two counts of burglary, she having entered sheltered accommodation with an accomplice on two occasions to take money and property from vulnerable elderly victims. She was sentenced on 5 June 2014 to a five year term of imprisonment. On 4 December 2015 a decision was made that she be deported in accordance with the Immigration (European Economic Area) Regulations 2006.

4. The appellant sought to appeal against that decision, which appeal came before First-tier Tribunal Judge O'Malley on 9 May 2016 and 18 July 2016. The appeal was dismissed.

5. Subsequently the appellant was removed to Poland on 20 September 2016 where she currently remains.

6. Criticism has been made of the decision of the First-tier Tribunal Judge. Such, it is contended, amount to an error of law. Permission to appeal against that decision was granted on one ground. Thus the matter comes before me to determine whether or not there was a material error of law.

7. Removal was to be implemented under Regulation 19(3)(b) of the Immigration (European Economic Area) Regulations 2006. Such required at the very least that her removal was justified on the grounds of public policy, public security or public health. It was contended in this case that as the appellant had resided in the United Kingdom for a continuous period of at least ten years prior to the deportation decision, she may only be deported on imperative grounds of public security.

8. The Judge did not accept that the appellant met that requirement. Of course it is important to remember that "residence" means lawful residence in accordance with the 2006 Regulations for the ten year period calculated back from the date of decision. From that period is to be excluded periods of imprisonment. The Judge noted in the course of the determination that the appellant had worked for about a year in 2005 and therefore she had not. The Judge did not uphold the suggestions that she had been a job seeker finding that there were no documents to support such a claim. Indeed as the Judge made comment, there was not enough evidence to support the contention that she was even in the United Kingdom for five years' residence under the Regulations.

9. The Judge noted the addiction of the appellant to drugs and accepted her evidence that that addiction began at the age of 23 which was in or around 2006. She was not working or job seeking during the period of time when she was addicted and was only claiming benefits sporadically. Indeed she committed the offences in order to earn some money. Thus it was that the Judge concluded that there was no continuous period of five years under which she could have obtained a permanent right of residence in the United Kingdom let alone a period of ten years.

10. In summary, the Judge found that the matter should be determined upon the lower risk that applies. I can find no error in that assessment.

11. At paragraph 90, applying the case of Warsame v SSHD [2006] EWCA Civ 16 and LG and CC (EEA Regs: residence: imprisonment: removal) (Italy) [2009] UKAIT 00024, the Judge concluded at paragraph 90 that the appellant did not have ten years' legal residence in the United Kingdom at the date of the decision and cannot rely on the protection afforded for the "imperative" grounds under Regulation 21(4)(a).

12. It is contended that the Judge erred in that assessment and should have, in any event, regarded the whole period of the appellant's residence as showing the requisite ten year period. Alternatively, to have considered her case on the basis that if not strictly the ten year period under the Regulations, it was to be treated to all intents and purposes as being so.

13. In that connection reliance is placed upon the cases of Warsame and LG and CC. In that later case the court stated that the length of a person's residence is relevant in determining the proportionality of the decision and that the period of residence may justify the application of the "imperative grounds test". In particular at paragraph 82 of that judgment," where a person has become fully integrated into this country by more than ten years' residence, particularly if he has severed any links with his country of origin, it would be consistent for the purpose of the Directive(as stated in the Preamble) to apply a stringent test, which may be equivalent in practice to the "imperative grounds" test."

14. The Court went on in paragraph 116 of LG and CC to indicate that the Tribunal fell into error in failing to consider long residence including more than ten years' residence before any offences were committed and the lack of links with Italy. It is said at paragraph 117:-

"In our view, even acknowledging the seriousness of the offence in 2000, and the possible risk of reoffending, we do not think that expulsion is a proportionate response for someone who came here as a child, has acquired a right of permanent residence in this country, has lived here for some fifteen years before the crime was committed, and has no significant links with Italy. In such a case we think that public policy considerations should carry little weight."

15. It is contended that a similar reasoning was adopted in the case of Warsame. Rather than counting back from the date of the deportation decision, the Court went on to consider whether there was a period of ten years' continuous residence. The court in Warsame at paragraph 36 of the judgment stressed that an overall assessment must be made of the person's situation on each occasion of the relevant consideration being determined whether the integrating links previously forged with host member state had been broken. Thus it was to determine whether the enhanced protection provided in that provision should be granted.

16. In the current case of course the offending behaviour has spanned most of the time of lawful residence under ILR, having with it a particular anti social characteristic, namely preying upon the vulnerable in society for the financial advancement of the appellant. Such was noted in particular at paragraph 100 of the determination. The conduct of the appellant is long-standing criminality relating to drugs and offences directed against vulnerable individuals, the elderly, infirm and a pregnant woman. Such offences arising directly from addition and from drink.

17. At paragraph 109 of the determination it was recognised that the appellant had been in the United Kingdom since 1999 with her family and therefore there may be some familiarity with and integration in society. The Judge recognised, however, that although there was time spent with the family there was little evidence of significant integration into the community, there being no evidence of attendance at school or college and only one brief experience of work more than a decade ago, with rather a self centred focus on drug taking and criminality to the detriment of Society.

18. The Judge noted that the finding in the OASys Report was that the appellant was "leading a manipulate and predatory life style". There was nothing of the nature of integration within any period as to meet the situations dealt with in the authorities that have been cited.

19. I find that the Judge has made a proper overall assessment as to the nature of the offending and of the integration over the relevant period and has taken into account and specifically recognised the length of residence. The Judge, for the reasons as set out in those paragraphs and others did not consider that that matter should give rise to an enhanced protection. She was not someone that had lived for many years before committing crime but someone who was a constant prey upon the vulnerable over a number of years. I find little reason to doubt that a proper assessment was made.

20. It is also contended that Regulation 21(6) of the EEA Regulations requires that before taking a relevant decision on the grounds of public policy or public security the decision maker must take account of considerations such as 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 in the United Kingdom and the extent of the person's links with his country of origin.

21. In the course of a detailed determination the immigration history of the appellant was considered as was her drug taking and drinking. Her schooling was considered as was also her medical condition, in particular her backache, self-harm and drugs. It was her case that she was a primary carer of her mother and that was also considered, as was her family situation in the United Kingdom.

22. The aspect of return to Poland and connections with Poland was also considered. It is said that the family had originally left Poland because of being bullied and harassed on account of their gypsy origin. With no family in Poland there was a need for her family in the UK. The Judge noted however that there was family in Poland particularly an elder sister although there had been no contact.

23. In addition to those matters the issue of rehabilitation was also considered. It was considered that the appellant would be able to obtain appropriate treatment for her diabetes and other conditions in Poland.

24. It would seem therefore that over what was a significantly and substantial determination the matters required to be considered were indeed considered.

25. The certification applied to the decision was also the subject of criticism, it being said that the findings of the Judge at paragraph 85 that the appellant would not face a real risk of serious irreversible harm if removed to Poland was not adequately reasoned. Reasons were, however, given particularly that Poland had health services which would allow the appellant to manage her condition appropriately. There are clearly family members as identified and the fact that no contact had been made did not prevent that contact being made. The Judge found at paragraph 62 of the determination that the appellant was playing down her family links in Poland to bolster her claim. In practical terms the claim to have been ill-treated was one made many year ago and the subject matter of two asylum claims both of which were rejected.

26. In those circumstances I find little merit in the contention that the Judge failed to approach the certification in the correct way or indeed failed to apply the correct test.

27. It is also contended that the Judge failed to give due weight to the OASys Report which spoke of a low risk of reoffending, particularly if the drinking could be under control. It is said that it was wrong for the Judge not to have given the appellant time out in the community to demonstrate that she could control her drinking. It seems to me that that is an unrealistically high burden to be placed upon the Judge. The whole pattern of the appellant's offending leading to her then current imprisonment was precisely drugs and alcohol.

28. The issue of rehabilitation was carefully considered in the determination particularly the minimisation of the offending behaviour is recorded in the OASys Report itself. The finding of the report was that the appellant was leading a manipulative and predatory lifestyle. When taking into account the report the Judge did not consider that the risk to the public was in any way diminished.

29. The Judge in paragraph 115 of the determination did not find there to be sufficient evidence of rehabilitation beyond her untested assurances. In particular it was noted that the appellant did not engage with any established programme to assess and support her efforts to deal with the reasons why she took illegal drugs. Although it was recognised that in prison she was not taking drugs, the Judge was not satisfied that such would be long lived on release.

30. Overall I am satisfied that the Judge has made a holistic and fair consideration both of the matters that can be taken in favour of the appellant and those that can be taken against, particularly in assessing the justification for removal under the 2006 Regulations. I find the determination to be well reasoned and I do not uphold the challenges which have been made.

31. The length of residence was carefully considered as was also the failure to integrate into society.

32. Although it may be correct to note that the Judge did not consider the cases of Wasarne and LG and CC in those precise terms, the authorities were before her and I find the proper principles applied. Given the findings of the Judge it is also abundantly clear that even if that specific challenge had been raised the outcome would have been the same.

33. I therefore do not find any material error of law. The appeal of the appellant before the Upper Tribunal is dismissed. The decision of the First-tier Tribunal upheld namely to dismiss her appeals under the Immigration Rules, the EEA regulations and under Article 8 ECHR.

No anonymity direction is made.

Signed Date 16 November 2016

Upper Tribunal Judge King TD