Tribunal decisions

The decision

IN THE UPPER TRIBUNAL
IMMIGRATION AND ASYLUM CHAMBER

Case No: UI-2022-004975
First-tier Tribunal No: DA/00036/2022

THE IMMIGRATION ACTS

Decision & Reasons Issued:
On the 29 March 2023

Before

THE HONOURABLE MRS JUSTICE HILL DBE
UPPER TRIBUNAL JUDGE KOPIECZEK

Between

ANTONIO GERMANO ALMADA GOMES MONTEIRO
(no ANONYMITY ORDER MADE)
Appellant
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: Ms E Turnbull, Counsel instructed by Turpin Miller LLP Solicitors
For the Respondent: Mr T Melvin, Senior Home Office Presenting Officer

Heard at Field House on 24 January 2023

DECISION AND REASONS
1. The appellant is a citizen of Portugal born in 1999. He claims to have arrived in the UK in 2009, aged 9 years. The respondent acknowledges his first known presence in the UK as February 2010. On 15 January 2020 he was granted settled status under the EU Settlement Scheme (“EUSS”).
2. On 27 January 2022 the respondent made a decision to deport the appellant under the Immigration (European Economic Area) Regulations 2016 (“the EEA Regulations”) in the light of his criminal offending. In particular, on 3 August 2020 at East London Magistrates’ Court, he was convicted of dangerous driving, using a vehicle without insurance, driving without a licence and failing to provide a specimen in relation to driving under the influence of class A drugs.
3. On 26 January 2021 in the Crown Court at Snaresbrook he was sentenced to five months’ imprisonment for dangerous driving, with no separate penalties for the related driving matters, and was disqualified from driving for two years. On the same date, he was sentenced to 30 months’ imprisonment in respect of two counts of possessing Class A drugs with intent to supply for which he had been convicted on 7 December 2020, again in the Crown Court at Snaresbrook. For breach of a suspended sentence of nine months’ imprisonment for a robbery for which he was convicted on 11 April 2019, the suspended sentence was activated but reduced to one month’s imprisonment consecutive. The total sentence on 26 January 2021 was 36 months’ imprisonment.
4. The appellant had also been convicted in the Magistrates’ court of offences of having an offensive weapon and possession of Class A drugs for which he was sentenced in September 2018 and February 2019, respectively, to a community order and attendance centre requirement, and fines of £75 for each of the two drugs offences.
5. The appellant appealed against the decision to deport him and his appeal came before First-tier Tribunal Judge Dineen (“the FtJ”) at a hearing on 19 July 2022. By a decision promulgated on 17 August 2022 the appeal was dismissed, both under the EEA Regulations and with reference to Article 8 of the ECHR. Permission to appeal the FtJ’s decision was granted by a judge of the First-tier Tribunal (“the FtT”).
The FtJ’s decision
6. The FtJ summarised the background to the appeal and included an extract from the sentencing remarks of Her Honour Judge Canavan when sentencing the appellant on 26 January 2021. The sentencing remarks included Judge Canavan’s view that the appellant had chosen to become a professional drug dealer and was street dealing. When the police wanted to stop him he drove for over ten minutes through crowded streets of Newham, repeatedly at over twice the speed limit. He also drove down the wrong side of the road repeatedly, and pedestrians and other vehicles had to take emergency action to avoid his vehicle. He threw some of the drugs out of the window and when stopped and arrested further drugs were found. Judge Canavan said that he had put the lives of all those other road users at risk, stating that it was luck not judgement that he did not kill anyone that day. She explained that because such bad driving was so serious the sentence for dangerous driving would be consecutive.
7. At [17] the FtJ noted that the respondent accepted that because of the length of the appellant’s residence in the UK he was entitled to enhanced protection, thus requiring deportation to be justified on imperative grounds of public security. He summarised reg.27(5)(a)–(f) of the EEA Regulations in terms of the principles to be applied and the requirements of reg.27(6) which concern an individual’s particular circumstances such as age, state of health, family and economic situation, and so forth.
8. After summarising the evidence and submissions on behalf of the parties, the FtJ made findings at [62]–[88]. He found that the appellant could not be deported except on imperative grounds of public security. He said that the word “imperative” imported a “particularly high degree of seriousness”. He noted that threats to public security are not confined to threats to the state or institutions and can include serious criminality. At [65]–[67] the FtJ said as follows:
“65. I find that dangerous driving, particularly as egregious as that committed by the appellant, is a deliberate act without any or any due regard for the potential consequences. It is a threat to the security of members of the public within in its vicinity.
66. Since the threat is one of death or serious injury, the ‘imperative’ test is fulfilled by such driving.
67. As to the appellant’s drug taking activities, I am satisfied that he was, as counsel submitted, a ‘street trader’ whose activities in that respect, taken alone, would not fall within imperative grounds of public security”.
9. He went on to state that he had to consider whether there was a risk that the appellant would in future drive dangerously, whether or not in conjunction with drug related or other criminal activity. He found that the appellant had shown that at least in August 2020 he was willing to drive in such a manner, without a licence, road tax or insurance and without regard for the safety of the public, “for the purely self centred reason of attempting to escape from the police”.
10. In terms of rehabilitation, the FtJ said that he had noted the contents of the OASys report and what was said by the prison rehabilitation programme leader, to which he had earlier referred. He also said that he took into account the letter which the appellant had himself written to the Tribunal.
11. However, he said that he also took into account the fact that the appellant had, between the ages of 19 and 21, become involved in a series of offences of increasing gravity and had failed to take advantage of the chance offered to him by a suspended sentence. He had been involved on two occasions in fighting whilst in custody, the second occasion as recently as January 2022. He referred to the appellant attempting to justify those actions on the grounds of “self protection” and he referred to the OASys report stating that the appellant had said that if faced with hostility by former associates from the drugs world he would have to protect himself. The FtJ concluded that this was an indication that he would engage in fighting rather than withdrawing from conflict.
12. He noted that it appeared that the appellant had kept out of trouble for approximately six months following his release, although noting that he had been on licence during that time. Noting what the OASys report said about his having been involved in drug dealing in order to obtain money and status, the FtJ said that he was not satisfied that when no longer subject to the supervision of his offender manager he would be able to keep away from drugs. He concluded that in the light of all those matters, the appellant’s attitude towards those with whom he is in disagreement is liable to be belligerent.
13. He further noted that the professional opinions to which he had referred said that the appellant was unlikely to cause serious harm unless there was a change in circumstances. At [77] the FtJ said that he was not satisfied that “there is any assurance” that his circumstances would not change so as to increase the risk he is capable of presenting to the public. He further said that he was not satisfied that the appellant would refrain from misuse of motor vehicles, because he had shown himself in the past to be willing to drive “entirely unlawfully” and he was not satisfied that his disqualification, or the requirement to take an extended driving test, would deter him from unlawful driving in the future.
14. At [79] he concluded that there was a significant risk that if the appellant remained at liberty in the UK he would again be concerned in criminal activity and drive a motor vehicle in a dangerous manner, so as to breach public security with a particularly high degree of seriousness. He concluded that a medium risk of deadly harm to the public constitutes an imperative ground of public security justifying deportation. He again referred to reg.27(5)(c) of the EEA Regulations, concluding that the appellant represented a genuine, present and sufficiently serious threat affecting one of the fundamental interests of society “taking into account his past conduct and that the threat is not required to be imminent”.
15. Similarly, he made reference to reg.27(6) in terms of the appellant’s age, state of health, family and economic situation, length of residence in the UK, social and cultural integration and the extent of his links to Portugal. He concluded, however, that because of the appellant’s criminal activity and thus his rejection of the requirements of society in the UK, his degree of integration within the UK was nothing other than “shallow”.
16. He found that the appellant would be able to reintegrate in Portugal, notwithstanding the age that he was when he came to the UK, referring to his youth, his satisfactory health and the fact that he speaks Portuguese and has kept up connections with Portugal. He rejected the appellant’s assertion that Portugal was a place which was “very oppressive for opportunities such as work and education”. He found that the appellant would be able to obtain employment in Portugal as readily as he could in the UK. He found that his family could visit him frequently and could otherwise communicate with him. He thus concluded that his deportation complies with the principle of proportionality.
17. The FtJ noted that the appellant speaks English but said that the extent to which he has supported himself financially has been from his criminal activities, as well as contributions from his family. He said that he took into account the need to maintain effective immigration control. He concluded that the appellant’s deportation would not otherwise constitute a disproportionate interference with his family or private life with reference to Article 8 of the ECHR.
The grounds and submissions
18. The grounds of appeal are fourfold. Ground 1 alleges that the FtJ made perverse or irrational findings in terms of the “genuine, present, and sufficiently serious threat” issue and failed to give adequate reasons for his findings. Ground 2 is related to ground 1 and argues that the FtJ erred in his approach to the professional evidence of the Probation Service in terms of the risk of reoffending. Ground 3 takes issue with the FtJ’s assessment of whether the imperative grounds of public security were made out. Ground 4 contends that the FtJ ought to have, and failed to, conduct a full proportionality assessment under Article 8 of the ECHR.
19. As regards ground 1, it is said in the grounds that although the FtJ concluded that the appellant did represent a genuine, present and sufficiently serious threat affecting one of the fundamental interests of society, that conclusion was inconsistent with other findings, for example where at [74] the FtJ said that the appellant appeared to have kept out of trouble for approximately six months following his release, although noting that he had been on licence during that time. Similarly, at [76] the FtJ “accepted” the professional opinions of the Probation Service that the appellant was unlikely to cause serious harm unless there was a change in his circumstances. It is argued that the logical conclusion of the FtJ’s acceptance that the appellant is unlikely to cause serious harm unless there was a change in his circumstances, was an acceptance that the appellant does not pose a present threat. Accordingly the requirement of reg.27 was not met and it was perverse or irrational for the FtJ to find that it was.
20. It is further said that it was perverse and unfair of the FtJ to reach a conclusion that the appellant posed a present threat because he was not satisfied that there was “any assurance” that his circumstances would not change, so as to increase the risk that he is capable of presenting to the public. No questions were asked of the appellant in cross-examination about the strength of his current support network. The appellant’s evidence in his witness statement was that his probation officer helps to ensure that he abstains from cannabis, as does his mother. Similarly, seeing his brother and nephews regularly helps. That evidence was unchallenged and no questions were asked in cross-examination or otherwise about the appellant’s attitude towards driving. In addition, there was evidence from the appellant’s cousin that since his release the appellant has been positive and motivated to make his life better and avoid trouble. That evidence was also unchallenged.
21. Furthermore, there was evidence from the recent OASys report that the appellant’s family, particularly his mother, were a supportive and stabilising influence. Again, that evidence was unchallenged. There was a range of evidence of the appellant’s rehabilitation, including a letter from a case manager of the Building Futures programme at HMP Pentonville, dated 20 September 2021 and a letter from the appellant’s offender manager dated 13 June 2022, as well as the two OASys reports.
22. As regards ground 2, there were two OASys reports, dated 9 May 2022 and 13 January 2022. The FtJ at [30] noted that the Probation Service had assessed the appellant’s risk of “serious recidivism” was said to be low and his risk of causing serious harm, medium. The FtJ concluded at [79] that there was a significant risk that if he remained at liberty he would again be concerned in criminal activity and drive a motor vehicle in a dangerous manner so as to breach public security with a particularly high degree of seriousness. The conclusion that the one “static predictor score” of a medium reoffending risk meant that there was an imperative ground of public security, was contrary to both OASys reports.
23. Furthermore, any risk referred to in the OASys reports does not include driving a motor vehicle in a dangerous manner.
24. In relation to ground 3, the FtJ accepted at [67] that the appellant’s drug taking activities and ‘street’ dealing would not, taken alone, meet the imperative grounds threshold. However, the FtJ failed to give adequate reasons as to why a single incident of dangerous driving brought the appellant within the scope of the imperative grounds. That conclusion was contrary to authority and to the Home Office’s own policy which envisages imperative grounds applying to cases of terrorism, drug or human trafficking, and other serious organised crime, as set out in the skeleton argument that was before the FtJ at [31]–[32]. The appellant has only been involved in one incident of dangerous driving which involved him trying to evade the police. There was no pattern of committing driving offences of escalating seriousness.
25. Lastly in relation to ground 3, it is argued that the FtJ was wrong to find at [83] that the appellant’s degree of integration in the UK was nothing other than “shallow”. The respondent had already conceded in its supplementary decision letter (dated 7 February 2022) at [4]–[6], that the appellant had met the integrative links test and therefore was entitled to ‘imperative grounds’ protection. The quality of the appellant’s integration for the purposes of the EEA Regulations was not in dispute. Imperative grounds, by definition, involves the recognition that the appellant is integrated. Reference was made in the appellant’s skeleton argument that was before the FtJ to VB (Italy) v Secretary of State for the Home Department [2010] EWCA Civ 806.
26. Ground 4 contends that it is impossible to discern whether the FtJ had conducted a full proportionality assessment before dismissing the appeal on human rights grounds at [88].
27. In oral submissions Ms Turnbull relied on the written grounds and referred us to aspects of the skeleton argument that was before the FtJ. It was submitted that by comparison with other reported cases, such as VB (Italy) and Hafeez v Secretary of State for the Home Department [2020] EWCA Civ 406 there needed to be something more than the severity of the offence to meet the necessary threshold for deportation in an imperative grounds case.
28. We were also referred to the FtT’s grant of permission to appeal, in support of the argument about factual comparisons with other imperative grounds cases. For example, in Hafeez there was a sentence of six years’ imprisonment for serious sex offences. We were referred in submissions to aspects of the OASys reports and the conclusions reached in them in terms of the appellant’s risk of offending and, correspondingly, to the FtJ’s decision which is said to be inconsistent with those assessments.
29. We were similarly referred to those aspects of the OASys reports and the other evidence referred to in the grounds in terms of the appellant’s prospects for, and progress in, rehabilitation. The FtJ’s decision, it was submitted, failed to reflect the weight of that evidence.
30. In addition to what is said in the grounds about the FtJ’s conclusions on the risk of reoffending, it was submitted that the FtJ was wrong at [77] to seek ‘assurances’ that the appellant’s circumstances would not change, such as to lead to the conclusion that he would present a risk to the public.
31. As regards the asserted failure to conduct an Article 8 proportionality assessment, Article 8 proportionality was a matter that was raised in the grounds of appeal before the FtJ and in the skeleton argument. Notwithstanding that much of the material was covered by the assessment under the EEA Regulations, it was clear that the FtJ needed to undertake a separate Article 8 exercise. It was submitted that it was possible for the Article 8 assessment to reach a different conclusion from that under the EEA Regulations.
32. In the respondent’s ‘rule 24’ response, it is argued that the FtJ was aware that the appellant was entitled to the enhanced protection of imperative grounds. He referred to the appellant’s skeleton argument at [64] of his decision and noted that it was accepted on the appellant’s behalf that threats to public security are not confined to threats to the state or institutions, and can include serious criminality.
33. The FtJ found that the appellant’s dangerous driving was a serious act, deliberately committed by the appellant at the same time as being a street trader in drugs. He was thus entitled to find that imperative grounds were made out.
34. The FtJ had taken into account the OASys reports but the weight to be given to those reports was a matter for him when assessing the evidence overall.
35. In his submissions, Mr Melvin relied on the rule 24 response. It was submitted that the appellant’s grounds and submissions amounted to no more than an extended argument with the FtJ’s findings. The FtJ had made extensive findings of fact which were open to him.
36. It was submitted that it was not helpful to compare facts in other cases in which imperative grounds were considered. Were it to be otherwise, the outcome would be a comparison of different cases. The FtJ was fully aware of the test that needed to be met. Whilst the OASys reports and other evidence needed to be taken into account, the FtJ was not bound by that evidence. We were referred to Joseph (permission to appeal requirements) [2022] UKUT 00218 (IAC) in relation to the need for an appeal to involve errors of law, rather than disagreements of fact dressed up as such.
37. On the facts of this case, the appellant was terrorising the residents of the area and seeking to escape police in his driving, throwing away drugs paraphernalia in the process.
38. The FtJ had taken into account the increased severity of the appellant’s offending and the profoundly aggravating factors.
39. We were told that it was submitted by the Presenting Officer before the FtJ that the appellant had not produced any reports since his release from prison in terms of engagement with the process of rehabilitation.
40. So far as Article 8 is concerned, in the light of the FtJ’s earlier analysis under the EEA Regulations, there was no need for a duplication of that analysis in an Article 8 proportionality assessment. It was difficult to see how the appellant could succeed with reference to Article 8 in the light of his offending.
41. In reply, Ms Turnbull pointed out that the letter from the offender manager dated 13 June 2022 was in fact after the appellant’s release. Similarly, even though the assessment for the May 2022 OASys report was done in February 2022, it was still relevant in relation to the post-release period.
Assessment and conclusions
42. We deal with ground 3 first, relating to the imperative grounds test. It is clear that the FtJ was aware of the circumstances of the appellant’s offending, the evidence in relation to his personal circumstances, and the arguments in relation to all the issues put before him by the parties. He referred in detail to the parties’ competing submissions between [22] and [59].
43. Similarly, the FtJ made a number of specific findings on the range of issues that needed to be decided. At [63] he said that the word “imperative” imported a particularly high degree of seriousness. However, we do consider that the FtJ fell into error in his assessment of whether the imperative grounds of public security were in fact made out.
44. The FtJ said at [64] that the skeleton argument on behalf of the appellant recognised that threats to public security are not confined to threats to the state or institutions and can include serious criminality. However, as argued in the appellant’s grounds of appeal at [27], this reference to Home Office guidance dated 17 November 2021, as quoted in the appellant’s skeleton argument, is taken out of context. The advice to caseworkers as quoted at [31] of the appellant’s skeleton argument that was before the FtJ states as follows:
“The threshold may be interpreted more widely than threats to the state or its institutions, and can, for example, include serious criminality, such as drug dealing as part of an organised group. See: Tsakoridis (European citizenship) [2010] EUECJ C-145/09”.
45. One can see from the FtJ’s [64] that although not in quotes, there is a partial reference to that guidance which does not include the example referred to of drug dealing as part of an organised group or the case of Tsakouridis.
46. Although we consider that the FtJ was plainly right to say that the appellant’s driving involved a risk of death or serious injury, as indeed the sentencing remarks make clear, the point made in the grounds is a good one in terms of there being no evidence of a pattern of driving offences of this nature or indeed of escalating seriousness.
47. Furthermore, whilst we do not consider that comparisons of offending or sentencing as between one case and another revealed in the various authorities is a useful exercise in terms deciding whether imperative grounds are made out, they are nevertheless instructive of the types of offending and the level of sentencing that could lead to a conclusion that imperative grounds are made out. We consider that had the FtJ made reference to one or more of those cases, or otherwise shown that he had considered such cases, it would have narrowed the scope for error.
48. We do not find that the appellant’s grounds in this respect amount merely to a disagreement with the FtJ’s conclusions on the facts. We are satisfied that the FtJ’s conclusion that the offence of dangerous driving for which the appellant received a five month sentence, serious though that offence was, failed to have regard to the high threshold that the test imports, notwithstanding that the FtJ referred to a high threshold being required.
49. Furthermore, we are also satisfied that the FtJ erred in his assessment of integration with reference to reg.27(6). Whilst there is the possibility that a finding could be made of a lack of integration notwithstanding that an individual has the enhanced level of protection of imperative grounds, no issue in this regard was raised at the hearing before the FtJ on behalf of the respondent. Indeed, the supplementary decision letter to which we have referred accepted the appellant’s integration. Furthermore, we note that at [49] of the FtJ’s decision he recorded that it was “accepted that the appellant is socially and culturally integrated in the UK” and thus entitled to enhanced protection.
50. We are further satisfied, therefore, that the FtJ erred in law at [83] in concluding that the appellant’s integration within the UK was nothing other than “shallow”.
51. As regards ground 1, we do not accept what is said on behalf of the appellant to the effect that the FtJ’s conclusions at [74] and [76] are inconsistent with his findings in relation to the threat posed by the appellant. At [74] the FtJ did accept that the appellant appeared to have kept out of trouble for the approximately six months following his release, but he added the qualification that the appellant had been on licence during that time. Similarly, although he said at [76] that he noted the professional opinions of those who assessed the appellant’s risk of reoffending, contrary to what is asserted in the grounds it is evident that he did not accept those professional opinions.
52. Having said that, we do consider that there is merit in the criticism of the FtJ’s conclusion that he was not satisfied that there was any “assurance” that the appellant’s circumstances would not change, so as to affect the risk to the public. We are satisfied that to search for such assurances was an error. In any event, there was evidence before the FtJ, to which he referred earlier in his decision, of the support that the appellant has in the community and in the OASys reports about the extent to which that support would assist in the appellant’s rehabilitation. We are not satisfied that the FtJ’s search for assurances engages with that evidence.
53. Ground 2 to a large extent overlaps with ground 1. In the light of our conclusions in respect of ground 1, we do not consider it necessary to say anything further in relation to ground 2.
54. So far as ground 4 is concerned (the Article 8 proportionality assessment), putting aside the question of whether an Article 8 proportionality assessment could, theoretically, result in a different outcome in circumstances where the EEA Regulations assessment was free from error, in the light of our conclusions as regards the FtJ’s assessment of the EEA Regulations, ground 4 is necessarily made out.
55. To summarise, for the reasons given above we are satisfied that the FtJ erred in law in his decision and that the errors of law are such as to require the decision to be set aside.
56. Having considered the parties’ submissions in relation to the question of whether the appeal should be retained in the Upper Tribunal or remitted to the First-tier Tribunal in the event that we set aside the FtJ’s decision, we are satisfied that the appropriate course is for the appeal to be remitted to the First-tier Tribunal for a hearing de novo, given the nature and extent of the fact-finding that will be required for the decision to be re-made. In making that assessment we have had regard to the Senior President’s Practice Statement at paragraph 7.2.
Decision
57. The decision of the First-tier Tribunal involved the making of an error on a point of law. Its decision is set aside and the appeal is remitted to the First-tier Tribunal for a hearing de novo before a judge other that First-tier Tribunal Judge Dineen, with no findings of fact preserved.

A. M. Kopieczek

Judge of the Upper Tribunal
Immigration and Asylum Chamber

3/03/2023