Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: da000952015

THE IMMIGRATION ACTS

Heard at the RCJ
Decision & Reasons Promulgated
On 13 June 2016
On 15 June 2016

Before

UPPER TRIBUNAL JUDGE BLUM

Between

SECRETARY OF STATE FOR THE HOME DEPARTMENT
Appellant
and

SC
(anonymity direction MADE)

Respondent

Representation:

For the Appellant: Mr I Jarvis, Senior Home Office Presenting Officer
For the Respondent: Ms N Mallick, Counsel, instructed by Marsans Solicitors

DECISION AND REASONS

1. This is an appeal by the Secretary of State for the Home Department (SSHD) against the decision of Judge of the First-tier Tribunal Moore promulgated on 24 March 2016 in which he allowed SC's appeal against the SSHD's decision of 12 March 2015 to make a deportation order against him under Regulations 19(3) (b) and 21 of the Immigration (European Economic Area) Regulations 2006 (the 2006 Regulations). For the purpose of this decision I will refer to SC as the 'claimant'.

Background

2. The claimant is a national of Germany, of Tamil ethnicity, born in 1993. He entered the UK in 2001 when he was 8 years old. He has lived in the UK ever since. On 16 December 2004 the family were issued UK residence permits valid until 16 December 2009. The permits were not extended after that time although the family continued to reside in the UK.

3. On 4 March 2013 the claimant was convicted of one count of sexual assault on a female by penetration, and two counts of rape of a female aged 16 or over. On 2 April 2013 he was sentenced to a total of six years imprisonment. The victim was the claimant's former girlfriend. Both came from traditional and conservative families that did not condone sexual activity outside of marriage. The offences occurred on the 23rd and 24th of June 2012. The claimant effectively blackmailed his victim into having non-consensual sex by threatening to inform her family of their relationship. The claimant pleaded not guilty at trial and the victim was required to undergo a robust cross-examination.

4. In her reasons for refusal letter the SSHD considered whether the claimant had resided lawfully in the UK in accordance with the 2006 regulations. She took into account a number of documents relating to the claimant and his family but she was not satisfied that this evidence demonstrated that the claimant had resided in the United Kingdom in accordance with the 2006 regulations for a continuous period of five years. The SSHD did not therefore consider that the claimant had acquired a permanent right of residence. Nor was it accepted that he had been continuously resident in the United Kingdom for 10 years in accordance with the 2006 regulations. As a consequence the SSHD was not satisfied that the claimant was entitled to the enhanced protection under Regulation 21(3) or (4) of the 2006 regulations.

5. The SSHD noted that the claimant had been subject to the minimum level of Multi Agency Public Protection Arrangements (MAPPA level 1) and that he had also been required to register on the sex offenders register indefinitely. This indicated that the claimant posed a continuing risk to a vulnerable group, namely women, and in particular to his victim. In completing his NOMS 1 assessment the offender manager found that the claimant posed a medium risk of harm to a known adult. Whilst acknowledging that the NOMS 1 assessment also indicated that the claimant posed a low risk of re-offending, the SSHD was of the view that the serious harm that could occur if the claimant did reoffend meant that it was not reasonable to leave the public vulnerable to the effects of his reoffending. The SSHD was not satisfied there was sufficient evidence that the claimant had adequately addressed all the reasons for his offending behaviour. There was no evidence before the SSHD that the claimant had successfully completed an enhanced thinking skills course or a victim awareness course, which could possibly reduce the risk of reoffending in the future. The SSHD was consequently satisfied that the claimant did have a propensity to reoffend and that he represented a genuine, present and sufficiently serious threat to the public such as to justify his deportation on grounds of public policy. In finding that her decision was proportionate the SSHD took into account the claimant's age (21), and the fact that he was in good health. The SSHD noted the claimant's claim to have been exercising treaty rights in the UK for approximately 13 years, but stated that no sufficient evidence of this had been provided. Nor was there said to be evidence of any significant integration into the community in the UK. With respect to the possibility of rehabilitation, the SSHD claimed there was no evidence that the claimant had undertaken any rehabilitative work while in custody. Whilst acknowledging that the claimant's mother, father and sister were residing in the United Kingdom, they had been unable to prevent him from committing his offences. The SSHD did not consider it likely that the claimant's family would be able to provide him with the necessary to support to aid his rehabilitation. The SSHD then went on to consider whether her decision breached article 8 ECHR, but concluded that it did not.

The First-tier Tribunal decision

6. The first-tier Tribunal judge heard evidence from the claimant, his mother, and his sister. The judge set out the claimant's immigration and criminal history. At [22] the judge satisfied himself that the claimant had entered the UK in 2001 when he was approximately 8 years of age. The judge found that the claimant had lived in the UK in excess of 14 years. With reference to a supplementary claimant's bundle the judge satisfied himself that the claimant had resided in the UK between 2003 and 2013. Although the earliest document provided by the claimant was a karate award dated 31 January 2003, the judge was nevertheless satisfied that the claimant must have entered the UK at some time prior to that date and was willing to accept the claimant's assertion that he entered the UK on 29 August 2001, this also being the evidence of the claimant's sister. In light of this finding, and by reference to regulation 21 (4) of the 2006 Regulations, the judge concluded that the SSHD could only deport the claimant on imperative grounds of public security.

7. The judge noted that imperative grounds of public policy required the threat posed by the claimant to be of a particularly high degree of seriousness. The judge was not satisfied that the claimant posed a genuine, present and sufficiently serious threat, despite his conviction and sentence. At [25] the judge found that the claimant had integrated into society and life in the UK. To support this conclusion the judge drew on the fact that the claimant had lived in the UK since the age of eight, that he had been educated in the UK through primary and secondary school, and thereafter college and, for a short period of time, at university.

8. At [26] the judge acknowledged the seriousness of the claimant's offending but found that the claimant now genuinely regretted his conduct, was remorseful and understood the trauma that he placed his victim under up until his conviction. The judge referred to the sentencing judge's the marks noting that his victim did not wish the claimant "any harm". The first-tier Tribunal judge concluded that the sentencing judge viewed the claimant as unlikely to reoffend.

9. At [28] the judge directed himself in accordance with the Court of Appeal decision in SSHD v FV(Italy) [2013] 1 WLR 3399 and rejected the proposition that there were imperative grounds of public security warranting the expulsion measure. This case was thought to have decided that periods of imprisonment could be included when calculating lengths of residence for the purpose of Regulation 21. The judge considered that that relevant test was whether the union citizen had become genuinely integrated into the member state during the relevant period [23]. Applying that test the judge concluded that the claimant had genuinely integrated into UK society. At [29] the judge found that the claimant had returned to Germany only once for a short holiday and that he no longer had any family or friends who lived there. Applying FV (Italy) the judge was not satisfied that any threat posed by the claimant was of a particularly high degree of seriousness as reflected by the use of the words "imperative grounds."

10. At [30] the judge concluded that the SSHD's decision was proportionate. The judge concluded by stating, "Having reached such a finding I have not then gone on to consider article 8 of ECHR, but if I was to do so bearing in mind all my findings above I find it likely that this appellant may have a successful claim under article 8".

The grant of permission to appeal and the Upper Tribunal hearing

11. Permission was granted on the basis that the First-tier Tribunal had arguably failed to apply MG (prison - Article 28(3)(a) of Citizen's Directive) Portugal [2014] UKUT 392 (IAC), which considered the judgement of the Court of Justice of the European Union in case C- 400/12 (SSHD v MG) with respect to the meaning of the "enhanced protection" provision. The CJEU case made clear that the 10 year period should be calculated by counting back from the date of the expulsion decision and that, in principle, periods of imprisonment interrupted the continuity of the period of residence. A period of imprisonment during those 10 years did not however necessarily prevent a person from qualifying for enhanced protection if that person was sufficiently integrated, even though, according to the same judgement, a period of imprisonment had a negative impact in so far as establishing integration was concerned. The first-tier Tribunal was said to have arguably erred in disregarding the period of imprisonment when calculating the relevant 10 year period. It was also arguable that the tribunal's consideration of integration was not done in the manner required by MG.

12. Mr Jarvis provided a copy of the decision in Ahmed Warsame v SSHD [2016] EWCA Civ 16 and expanded upon the SSHD's grounds. It was submitted that the judge's failure to consider and apply MG and Warsame (which was promulgated 2 months prior to the First-tier Tribunal's decision) amounted to a material legal error as the judge counted the claimant's incarceration as part of the 10 year period and failed to properly assess whether the nature and degree of the claimant's integration was sufficient to warrant the application of the enhanced test (on the basis that the claimant fell within the 'maybe' category identified in Warsame at [9] and [10]). It was accepted by Mr Jarvis that, if the claimant's account of his residence in the UK was accepted, he would have resided in the UK for 12 years prior to his imprisonment. Nor was there said to be any satisfactory evidence before the judge that the claimant had been residing in the UK in accordance with the EEA regulations. It was further submitted that, despite making several references to the low risk assessment of the claimant re-offending, the judge did not actually make any specific finding as to whether the claimant posed a genuine and present risk to the fundamental interests of society.

13. Ms Mallick adopted the Rule 24 response drafted by her colleague and submitted that the claimant had resided in the UK for a continuous period of over 10 years and that, although the SSHD took issue with whether the claimant himself was exercising Treaty rights, no challenge had ever been mounted to the assertions that his family were living and working in the UK in accordance with the 2006 Regulations. Ms Mallick accept that the judge did not specifically find that the claimant had obtained permanent residence in the UK as a result of being a family member of a qualified person. It was however submitted that the judge had reasonably assumed this as his starting point. It was submitted that the judge's findings at [25], relating to the claimant's integration, were sufficient to sustain the decision, and the position of the victim and her mother, as disclosed in the sentencing remarks, further supported the evidence relating to the claimant's integration. It was contended that the judge had engaged in an 'overall assessment' as required by MG.

Discussion

14. It is extremely unfortunate that neither the Upper Tribunal case of MG, nor the Court of Appeal decision in Warsame, were brought to the attention of the First-tier Tribunal judge. This resulted in the judge applying the 'imperative grounds' test by reference to a Court of Appeal decision that had been overturned (see Warsame, at [10]).

15. At [23] of his determination the judge found that the claimant had resided in the UK for a continuous period of 10 years prior to the SSHD's expulsion decision and that such a decision could only be taken if there were imperative grounds of public security. The judge did not consider whether the claimant's incarceration of 3 years broke the continuity of his residence counting backwards from the date of the expulsion decision. The judge was required to do so following MG and Warsame. The judge misdirected himself on the appropriate law and this constituted an error of law.

16. Ms Mallick, in reliance on the Rule 24 response, submitted that any such error was not material as the claimant has resided in the UK for a continuous period of more than 10 years prior to his incarceration and because the judge found that the claimant had integrated into UK society. I cannot accept this submission. The claimant could only have availed himself of the highest level of protection if the judge was satisfied that he had 'sufficiently integrated' into UK society. The headnote of MG refers to a tension within the judgment of the CJEU in Case C-400/12 Secretary of State v MG in respect of the meaning of the "enhanced protection" provision. Having carefully analysed the judgement of the CJEU the Upper Tribunal concluded that a period of imprisonment during the relevant 10 years does not necessarily prevent a person from qualifying for enhanced protection if that person was 'sufficiently integrated'. The Upper Tribunal noted however that, according to the same judgment, a period of imprisonment must have a negative impact in so far as establishing integration is concerned. In Warsame counsel for the Respondent accepted that there is a "maybe" category of cases under MG where a person has resided in the host state during the ten years prior to imprisonment, depending on an overall assessment of whether integrating links have been broken, and that in such cases it might be relevant to determine, by way of overall assessment, the degree of integration in the host member state or the extent to which links with the original member state have been broken.

17. In my judgement the First-tier Tribunal decision does not contain an adequate analysis of whether the claimant's integration was of a degree sufficient to attract the operation of the highest level of protection, notwithstanding his incarceration for a period of three years which, in principle, would have interrupted the continuity of the 10 year period of residence. At [22] the judge satisfied himself, based on the documentary in the supplementary bundle and the evidence from his sister, that the claimant has resided in the UK since 2001 when he was approximately 8 years old. Than at [25] the judge finds the claimant has integrated "into society ad [sic] life in the UK" based on his age when he entered the UK, his exposure to primary, secondary, and to some extent, tertiary education, and the fact that he had only left the UK for a short holiday. With respect, this is an entirely deficient analysis when one considers what was contemplated in MG. The judge's analysis is a bare backbone without any detailed assessment of the actual nature and quality of the claimant's integration. There is no sufficient assessment of the personal, family, cultural, social and occupational roots developed by the claimant since his arrival in the UK. The failure by the judge to undertake this vital consideration, necessary to ascertain whether the claimant's integration is sufficient to attract the highest level of protection, renders his decision unsustainable.

18. Nor am I satisfied that the judge has actually made a finding in respect of rule 21(5)(c) of the 2006 regulations as to whether the claimant's personal conduct represents a genuine, present and sufficiently serious threat affecting one of the fundamental interests of society. Although the judge refers to extracts from the sentencing remarks suggesting the sentencing judge did not anticipate any further criminality by the claimant, and also referred to the NOMS 1 assessment that categorised the claimant as being at low risk of re-offending, the decision does not contain a clear finding with respect to rule 21(5)(c).

19. As the rule 24 response acknowledges, the judge did not go on to consider the second and 3rd levels of protection. The judge found that the claimant had resided in the UK since the age of 8, and it is not disputed that the claimant and his family were issued with Residence Permits in December 2004 valid until December 2009. The issuance of a Residence Permit does not however bestow a right of residence under EU law. Although it is quite possible that the claimant has been residing in the UK in accordance with the 2006 Regulations (probably as a dependent of his father, who may have been a qualified person) for a continuous period of 5 years, there was no evidence to that effect before the First-tier Tribunal and the SSHD, in her Reasons For Refusal Letter, specifically rejected the claimant's assertion that he had obtained a permanent right of residence based on an absence of satisfactory evidence.

Conclusion

20. For the reasons given above I am satisfied that the First-tier Tribunal judge did materially erred in law. There are however aspects of the determination that are unaffected by the judge's errors. These relate to his primary factual findings, contained at [22], relating to the length of time the claimant has lived in the UK, and [26], relating to his genuine regret and remorse for his offending and his acceptance of the aggravating features of his conviction.

21. Ms Mallick invited me to remit the appeal back to the First-tier Tribunal given the need for a much fuller investigation of the nature and degree of the claimant's integration into UK society, and in light of the further evidence that would be required for such an investigation. I consider it appropriate to remit the appeal back to the First-tier Tribunal in these circumstances.

22. The First-tier Tribunal will have to consider whether, by overall assessment, the nature, quality and length of the claimant's residence prior to his incarceration is sufficient to catapult him into the 'maybe category' identified in MG, with reference to Warsame (at [9] and [10]), such that he is still entitled to the enhanced category of protection.

23. The First-tier Tribunal will also need to consider whether the claimant had been residing in the UK in accordance with the EEA regulations, either as a qualified person in his own right, or as a result of being a dependent family member of a qualified person, since his arrival in the UK. This is relevant both to whether the claimant is entitled to the highest form of protection (on imperative grounds), but also whether he is entitled to the medium level of protection (that his removal can only be justified on serious grounds of public policy or public security) as a result of having obtained permanent residence. Relevant to this assessment is the existence of evidence that he and/or his parents were exercising free-movement rights since their arrival in the UK and that the claimant was dependent on his parents.

Notice of Decision

The First-tier Tribunal contains a material error of law.
The matter will be remitted back to the First-tier Tribunal to be reconsidered in light of the conclusions of this decision, with reserved factual findings contains in paragraphs 22 and 26, before a judge other than Judge of the First-tier Tribunal Moore.

Signed Date 14 June 2016

Upper Tribunal Judge Blum

Direction Regarding Anonymity - Rule 14 of the Tribunal Procedure (Upper Tribunal) Rules 2008

Unless and until a Tribunal or court directs otherwise, the appellant is granted anonymity. No report of these proceedings shall directly or indirectly identify him or any member of their family. This direction applies both to the appellant and to the respondent. Failure to comply with this direction could lead to contempt of court proceedings.

14 June 2016
Signed Date

Upper Tribunal Judge Blum