Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal no: DA/00088/2016

THE IMMIGRATION ACTS

At
Decision & Reasons Promulgated
on 16.11.2016
on 25.11.2016

Before:
The Hon Lord BANNATYNE and
Upper Tribunal Judge John FREEMAN
Between:
Mohd. Warsame Samankar GEDI
appellant
and

respondent
Representation:
For the appellant: Stephen Vokes (counsel instructed by Duncan Lewis & co, Harrow)
For the respondent: Mr Ian Jarvis

DECISION AND REASONS
This is an appeal, by the , against the decision of the First-tier Tribunal (Judge Ravinder Bagral), sitting at Bradford on 3 June, to a deportation appeal by a citizen of Sweden, born in 1992, and brought to this country with the rest of his family when he was eight. Permission was given in the most general terms in the Upper Tribunal, but without dealing with the necessary extension of time, as had to be done (see for example AK and others (Tribunal Appeal, out of time) Bulgaria [2004] UKIAT 00201*). However, Mr Vokes realistically accepted that it was open to us to extend time now, and conceded that there was no good reason not to do so, given the short period involved, and the reasons put forward in the application; so we do.
2. Criminal record In February 2015 this appellant received a sentence of three months' imprisonment, suspended for 12, for possession of a bladed article; but the conviction which led to the deportation decision under appeal (served 15 February 2016) referred to events in April 2015. These had begun with an assault on 3 March by the appellant's brother Ahmed Samankar and some other young men on another called Kumar Mohammed, in the street, using knives: luckily he got no more than cuts to his arms when he put them up to defend himself. This appellant was present at the incident, but took no part in it: his part was described by the sentencing judge as "a very serious attempt to pervert the course of justice".
3. What the appellant did, on 24 April, was to go and see Kumar at his flat and tell him to drop the case: while he was there, he rang a solicitor to make arrangements for Kumar to see a solicitor. On the 30th, the appellant and three others arrived at Kumar's flat: one of them, not this appellant, got a knife out of the kitchen and told Kumar to drop the case, or they would get someone to 'finish' him. Then the appellant rang the solicitor again, and Kumar was taken round to his office, where they saw a clerk, who took down a statement retracting his complaint against the appellant's brother, which he signed out of fear.
4. The sentencing judge went on to explain the reasons, too obvious to need repeating here, why that was a very serious offence: he set the tariff for this appellant at two years' imprisonment, reducing it by a third for his plea of guilty, but adding two months for his breach of the suspended sentence, making 18 in all.
5. Decision under appeal The decision to deport this appellant, as an EEA citizen, had to be based. at least, on grounds of public policy or public security, and (see Immigration (European Economic Area) Regulations 2006 [the EEA Regulations] reg. 21 (5)
? 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 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.
6. Judge Bagral found that this appellant had not acquired any permanent right of residence, so that no higher test applied. She fully acknowledged the seriousness of what he had done, and found, in terms of principle (c) that, as things stood, his personal conduct did represent the necessary 'genuine, present and sufficiently serious threat'. As principle (a) makes clear, however, she had to go on to consider proportionality in general terms, without taking account of the considerations excluded by (b), (d), or, so far as it went, (e).
7. Authorities At this point the question of rehabilitation, actual or potential, became relevant. There had at one time been differing views as to how far it was relevant: on one view (see Essa (EEA: rehabilitation/integration) [2013] UKUT (IAC) 316, judicial head-note paragraph 3, reasonable prospects of rehabilitation could in any case be a substantial relevant factor in the proportionality balance. On the opposing view, they could only be relevant where someone had a permanent right of residence. The difference was conclusively resolved in Dumliauskas & others [2015] EWCA Civ 145: the Court of Appeal discussed previous decisions at paragraphs 41 - 47, and reached their own views (Sir Stanley Burnton for the court) as follows:
52. I am bound to accept, on the authority of the judgment of this court in Daha Essa, that the Secretary of State, and therefore the Tribunal, must consider the relative prospects of rehabilitation, in the sense of ceasing to commit crime, when considering whether an offender should be deported. I have to say that but for that authority, I would have said that this was a factor to be considered if raised by the offender, but not otherwise, just as the effect of deportation on the health of an offender need not be considered unless it is made known to the Secretary of State that it is a relevant factor.
53. However, different considerations apply to questions of evidence and the weight to be given to the prospects of rehabilitation. As to evidence, as a matter of practicality, it is easier for the Secretary of State to obtain evidence as to support services in other Member States. However, in my judgment, in the absence of evidence, it is not to be assumed that medical services and support for, by way of example, reforming drug addicts, are materially different in other Member States from those available here. This is not the occasion to conduct a comparative survey, but it is appropriate to mention, by way of example, that medical services in France are said to be excellent, and that Portugal has been innovative in relation to treating drug addiction.
54. Lastly, in agreement with what was said by the Upper Tribunal in Vasconcelos, I do not consider that in the case of an offender with no permanent right of residence substantial weight should be given to rehabilitation. I appreciate that all Member States have an interest in reducing criminality, and that deportation merely exports the offender, leaving him free to offend elsewhere. However, the whole point of deportation is to remove from this country someone whose offending renders him a risk to the public. The Directive recognises that the more serious the risk of reoffending, and the offences that he may commit, the greater the right to interfere with the right of residence. Article 28.3 requires the most serious risk, i.e. "imperative grounds of public security", if a Union citizen has resided in the host Member State for the previous 10 years. Such grounds will normally indicate a greater risk of offending in the country of nationality or elsewhere in the Union. In other words, the greater the risk of reoffending, the greater the right to deport.
55. Furthermore, as I mentioned above, a deported offender will not normally have committed an offence within the State of his nationality. There is a real risk of his reoffending, since otherwise the power to deport does not arise. Nonetheless, he will not normally have access to a probation officer or the equivalent. That must have been obvious to the European Parliament and to the Commission when they adopted the Directive. For the lack of such support to preclude deportation is difficult to reconcile with the express power to deport. In my judgment, it should not, in general, do so.
8. These considerations were summarized for the benefit of judges in this field by the Upper Tribunal, in the light of Dumliauskas and other decisions of the Court of Appeal, in MC (Essa principles recast) [2015] UKUT 520 (IAC). While the principles set out in MC (Essa principles recast) [2015] UKUT 520 (IAC) would of course have to be disregarded, so far as they might diverge from Dumliauskas, principles 6 - 10 in the judicial head-note to MC are set out with specific reference to those paragraphs of Dumliauskas, and we have heard nothing to suggest that they did not correctly reproduce their effect.
9. Conclusions: law In this case, Judge Bagral is criticized for what she said about the possibility of rehabilitation, without taking into account the restrictions on that set out in Dumliauskas. However, she did refer herself to MC; but Mr Jarvis suggested that she went no further than to note what appeared about the relevance of rehabilitation at principle 6 of the judicial head-note, without considering the restrictions at all. We disagree. The main restriction, shorn of the references to Dumliauskas, is at principle 10:
In the absence of integration and a right of permanent residence, the future prospects of integration cannot be a weighty factor ? Even when such prospects have significant weight they are not a trump card, as what the Directive and the 2006 EEA Regulations require is a wide-ranging holistic assessment. Both recognise that the more serious the risk of reoffending, and the offences that a person may commit, the greater the right to interfere with the right of residence
10. The judge clearly took account of the 'no trump card' point at paragraph 67, where she acknowledged that the reasonable prospects of rehabilitation she found to exist were not "? determinative of the issue of proportionality". However it is suggested that she went wrong in law by not directing herself that such prospects could not be a 'weighty factor'. That principle is restricted by the Tribunal to cases where there is an "? absence of integration and a right of permanent residence", whereas in Dumliauskas at paragraph 54 it is applied to all cases where there is no such right.
11. However, the Tribunal in MC were careful to refer everything they said to the principles set out in Dumliauskas, and the first part of their principle 10 is no exception to that. The reference they gave was not only to paragraph 54, but also to paragraph 44 in Dumliauskas. There the Court of Appeal agreed with what had been said in yet another decision of the Tribunal, Vasconcelos (risk - rehabilitation) Portugal [2013] UKUT 378, at paragraph 80, about the appellant in that case:
His future prospects of rehabilitation are uncertain and whatever they are cannot be a weighty factor in the balance given the absence of integration and a right of permanent residence.
12. It seems to us that the proposition approved by the Court of Appeal there is that both integration and a permanent right of residence are required to make rehabilitation prospects a 'weighty factor' in cases such as this. This is what the Tribunal must have meant by setting out principle 10 as they did in MC, and it should be read in that light. We do not consider it necessary for this decision to join the plethora of 'reported' decisions on this subject; but we give permission to refer to it in any case where the contrary may be suggested. Otherwise the principles summarized in MC make further reference to Dumliauskas unnecessary.
13. Conclusions: individual case Judge Bagral correctly directed herself that possible rehabilitation was not a 'trump card', but should have also reminded herself that it could not even be a 'weighty factor', without any permanent right of residence. That was an error of law, though not one for which she could in any way be blamed: neither side had helped her, as they should have done, by referring her to MC, on which she did the best she could without any help; let alone by citing Dumliauskas.
14. As Mr Vokes reminded us, the principles in reg. 21 (5) of the EEA Regulations required a full proportionality assessment, whatever view was taken on rehabilitation. After noting the seriousness of the appellant's offence at paragraph 68, the judge went on at 69 - 71 and 73 to take a view (realistic subject to the limitation we have mentioned) of his prospects of rehabilitation in this country, where he has the help of his family; but at 72 she reached findings which were not, and could not have been challenged, about his integration here, though she did not use the expression herself. For a young man not quite 24 at the date of the decision under appeal, here with all his family since he was eight, those were findings, made in the course of a clear well-thought out decision, on which the judge was entitled to consider the appellant's deportation disproportionate to the legitimate purpose of , whether or not rehabilitation in itself could be considered a 'weighty factor'. It follows that the error of law we have found, such as it was, was not material to the result reached.
Appeal
(a judge of the Upper Tribunal)