Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: DA/00061/2016

THE IMMIGRATION ACTS

Heard at Field House
Decision & Reasons Promulgated
On 31st March, 2017
On 7th April, 2017

Before

Upper Tribunal Judge Chalkley

Between

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT

Appellant
and

MR MAURIZIO DI FRANCESCO
(ANONYMITY DIRECTION Not made)

Respondent

Representation:

For the Appellant: Mr P Armstrong, a Senior Home Office Presenting Officer
For the Respondent: Mr J Dhanji of Counsel, instructed by UK Migration Lawyers Limited

REASONS FOR FINDING AN ERROR OF LAW

1. The appellant in this appeal is the Secretary of State for the Home Department and I shall refer to her as being, “the claimant” to avoid confusion.

2. The respondent is a citizen of Italy, who was born on 29th July, 1965, and who was convicted at Lewes Crown Court on 25th June, 2015 of three counts of making indecent photographs of children and two counts of possession of extreme photographic images. On 27th July, 2015 at Lewes Crown Court the respondent was sentenced to a total of twelve months’ imprisonment. As part of the sentence he received a sexual harm prevential order for a period of ten years and he was also required to register on the sex offenders register for ten years. On 22nd January, 2016 the claimant decided to make a deportation order in respect of the respondent.

3. The respondent subsequently appealed the claimant’s decision and his appeal hearing came before First-tier Tribunal Judge R G Walters at Taylor House on 1st August, 2016 and again on 24th October, 2016. Having found that the respondent had nearly thirteen years’ continuous residence in the United Kingdom, the judge took account of the fact that the claimant conceded before the judge that the respondent had permanently resided in the United Kingdom since 2014, a period of some eleven years. This was a finding made by the judge at paragraph 35 of his determination.

4. At paragraph 36 of his determination the judge found that the respondent was entitled to enhanced protection of Regulation 21(4) of the Immigration (European Economic Area) Regulations 2006 (“the Regulations”) which allow the respondent’s deportation only “on imperative grounds of public scrutiny”. The judge went on to find that the respondent’s offence of downloading pornography,

“even such of an unpleasant type, could not justify a decision to deport him on ‘imperative grounds of public security’. His crime is not sufficiently serious to justify his deportation under Regulation 21(4) nor is the risk that he will reoffend in a similar way sufficient to justify deportation under this Regulation.”

5. In challenging the decision, the Secretary of State asserted that the judge erred because the evidence before the judge did not demonstrate that the respondent had enjoyed continuous residence during the period between 2011 to 2015, (because there were gaps within the respondent’s documentary evidence from 11th January, 2011 to 9th September, 2015) to show that he was exercising his treaty rights at that time and yet the First-tier Tribunal Judge failed to address this. During the course of the hearing before me, it was pointed out to Mr Armstrong that in paragraph 35 of the judge’s determination it appears that the Presenting Officer appearing before the judge conceded that the respondent had permanent residence in the United Kingdom since 2004, which is a period of eleven years. The judge said at paragraph 35:-

“35. Mr Blundell further submitted that counting back from the date of the [claimant’s] decision (22.1.16) the [respondent] had had nearly thirteen years of continuous residence in the United Kingdom. I also took into account that counting back from the date of conviction (25.6.16) the [claimant] concedes that the [respondent] has permanently resided in the UK since 2004 which is a period of eleven years.”

6. That effectively deals with the first challenge. However, the grounds also asserted that the judge had misdirected himself as to the law regarding the acquisition of lawful residence and integration, by failing to consider whether the respondent had, through his offending and imprisonment, broken his integrative links to the UK. The grounds suggested that the nature and extent of the respondent’s offending going back to 2008 as it did, meant that even before the respondent’s imprisonment, he had broken his integrative links with the United Kingdom and the judge’s failure to have regard to the offending behaviour and its extent and length, amounted to a material error of law such, it was suggested, that his integrative links must have a negative impact. Counsel had very kindly provided a Section 24 response which I had earlier carefully read. He accepted that the judge had not explicitly considered the respondent’s integration in the light of the offences and the period over which they were committed, but he said that was not an error which was material.

7. For the claimant, Mr Armstrong submitted that the question of integration was only considered in the context of the time during which the respondent was in the United Kingdom, but for a substantial time during his residence, at least going back to 2008, the respondent had been committing these appalling offences, and that was something which should have been considered by the judge when considering whether or not the respondent was fully integrated. I reserved my determination.

8. I very carefully read the judge’s determination. There seems to me to be little doubt that a concession was made on behalf of the complainant at the hearing before the judge that the respondent had resided in the United Kingdom permanently since 2004. The judge properly considered whether the offences could justify the claimant’s decision to deport him on “imperative grounds of public security” and concluded that the crime was not sufficiently serious to justify his deportation and neither is the risk that he will reoffend in a similar way sufficient to justify deportation. That is not a decision with which I would necessarily agree, but it was not suggested that this decision was perverse or made in error. He noted that the respondent possessed a low risk of future sexual offending. The offender assessment system assessed the respondent as “posing a medium risk of serious harm to children”.

9. However, when considering this respondent’s integration, it is necessary to bear in mind that he was convicted of offences committed over a lengthy period, going back to 2008. The judge has quoted extracts from the sentencing comments of the judge and it would perhaps have been better if he had quoted the whole of the sentencing comments of Judge Hayward. The respondent was said to have come to the attention of the police because he was file sharing, some six videos and 36 images fell into categories A, B and C for sentencing purposes. 72 videos were found of extreme pornography. The evidence before the First-tier Tribunal was that the offences started in 2008.

10. I believe that in failing to consider the extent and the length or period over which time the offences were committed, First Tier Tribunal Judge R G Walters made a material error of law. He should have considered whether or not, in the light of those offences and the period during which they were committed, the judge was still satisfied that the respondent was integrated.

11. Regulation 21(6) of the Regulations requires that before taking a relative decision on 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 age, the 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.

12. I find that the First-tier Tribunal Judge has erred in law. I set aside his decision. Having found that the determination contains an error of law and having set aside the decision I have concluded that I must remit the appeal for rehearing by a Judge of the First-tier Tribunal other than Judge R G Walters. The judge’s findings, save for that relating to the respondent’s integration, and that contained in Paragraph 36 of his determination, shall stand. The question of whether or not the respondent is entitled to enhanced protection of Regulation 21(4) of the Regulations, depends on the First Tier Tribunal’s view on the respondent’s integration. I believe that three hours should be allowed for the appeal. I do not believe that an interpreter is required, but no doubt those representing the respondent will make representations to the Tribunal if I am wrong.

Richard Chalkley
A Judge of the Upper Tribunal
5th April, 2017