Tribunal decisions

The decision

IAC-FH-NL-V1

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: DA/00095/2015

THE IMMIGRATION ACTS

Heard at the Royal Courts of Justice
Decision & Reasons Promulgated
On 16 January 2017
On 2 February 2017

Before

UPPER TRIBUNAL JUDGE RIMINGTON

Between

Secretary of State for the Home Department
Appellant
and

SC
(ANONYMITY DIRECTION MADE)
Respondent

Representation:
For the Appellant: Mr K Norton, Home Office Presenting Officer
For the Respondent: Mr D Bazini, Counsel instructed by Marsans Solicitors

DECISION AND REASONS
1. This is an appeal by the Secretary of State for the Home Department but I shall refer to the parties as they were described before the First-tier Tribunal that is the Secretary of State as the respondent and SC as the appellant. The Secretary of State appealed, with permission granted by First-tier Tribunal Judge Shimmin, against a decision promulgated by Judge of the First-tier Tribunal Hanbury on 4 November 2016. Judge Hanbury allowed the appellant's appeal against the respondent's decision on 12 March 2015 to make a deportation order against him under Regulation 19(3)(b) and 21 of the Immigration (European Economic Area) Regulations 2006 (the EEA Regulations).
2. The appellant is a national of Germany, of Tamil ethnicity, born in 1993 and he entered the United Kingdom in 2001 when he was 8 years old. He has lived in the UK since and on 16 December 2004 the family were issued with UK residence permits valid until 16 December 2009. The permits were not formally extended after that time, albeit the family continued to reside in the UK.
3. On 4 March 2013, some twelve years after coming to the UK, 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 the appellant 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 marriage. The offences occurred on 23 and 24 June 2012 and it is stated that the appellant effectively blackmailed his victim into having non-consensual sex by threatening to inform her family of their relationship. The appellant pleaded not guilty at trial and the victim was required to undergo cross-examination.
4. The Secretary of State's decision letter identified that it was not accepted that the appellant had been resident in the United Kingdom in accordance with the 2006 EEA Regulations for a continuous period of five years because he had failed to provide sufficient evidence of his continuous residence. It was not accepted he had acquired permanent residence and it was not accepted he had been continuously resident in the United Kingdom for ten years in accordance with the EEA Regulations as he had failed to provide sufficient evidence of his length of continuous residence.
5. Assessment of the threat that the appellant posed was made at paragraphs 18 to 28 of the refusal letter. He was subject to the minimum level of multi-agency public protection arrangements (level 1) which was an indication that he was considered to pose continuing risk. There was a requirement that he registered on the Sex Offenders' Register indefinitely and that in his NOMS 1 assessment he was found by the offender manager to pose a medium risk of harm to a known adult. It was identified that rape was amongst the very worst kind of offence from which the public should be protected. The long-term psychological harm to the victim was taken into account together with that of her family. The sentencing judge's remarks were also set out in the refusal letter and a number of aggravating factors were identified such that the appellant failed to use protection during sex, had made threats of a kind of blackmail and subjected the victim to cross-examination. It is added that this was classified as a sustained attack and there was an abuse of trust. It was identified that the appellant had no previous conviction of any kind and had been doing well academically.
6. The decision letter recorded that the offender manager in NOMS 1 assessment found the appellant posed a low risk of re-offending with a medium risk of harm should he re-offend. Further there was no evidence that he had completed any programmes that could reduce the risk of him re-offending in the future. It was concluded that he had a propensity to re-offend and he represented a genuine, present and sufficiently serious threat to the public to justify his deportation.
7. In relation to rehabilitation there was no evidence he had undertaken any rehabilitative work whilst in custody. There was no reason why he could not work towards rehabilitation in Germany. It was concluded he had committed serious criminal offences in the UK and given the threat of serious harm that he posed to the public it was considered his personal circumstances did not preclude his deportation being pursued.
8. The recent immigration history before the Immigration Tribunal is as follows. The appeal came before First-tier Tribunal Judge Moore on 24 March 2016 who allowed the appeal. The Secretary of State made an application for permission to appeal on the basis of an error of law and Upper Tribunal Judge Blum set aside that decision preserving paragraphs 24 and 26 only. UTJ Blum identified that First-tier Tribunal Judge Moore had failed to apply correctly MG (prison - Article 28(3)(a) of Citizens Directive) Portugal [2014] UKUT 392 (IAC) which considered the judgment of the Court of Justice of the European Union in KC-400/12 (SSHD and MG) and the meaning of the "enhanced protection" provision. The CJEU case made clear that the ten year period should be calculated by counting back from the date of the expulsion decision (the deportation decision) and that, in principle, periods of imprisonment interrupted the continuity of the period of residence. A period of imprisonment did not however necessarily prevent a person from qualifying from enhanced protection if that person was sufficiently integrated even though according to the same judgment a period of imprisonment had a negative impact insofar as establishing integration was concerned.
9. As such the matter was remitted back to the First-tier Tribunal and came before First-tier Tribunal Judge Hanbury.
10. The Secretary of State proceeded to appeal that determination on grounds including
(i) that the judge had failed to follow MG (prison: Article 28(3)) and where it was confirmed that for the purpose of Regulation 21(4) the ten year period of residence must in principle be continuous and calculated back from the deportation decision. In other words the correct approach to the question of the existence or not of the imperative grounds of public security test at Regulation 21(4) had not been applied. It was suggested that counting back he had not acquired the ten years' residence in accordance with the EEA Regulations. Any ten years' residence still needed to be in accordance with the Regulations and he would still need to show that he had been genuinely integrated during that period. It was also submitted that the appellant needed to show that he had obtained the requisite five years' qualifying residence for a permanent right of residence at some point during that period and that was the stepping stone to the act of genuine integration following Onuekwere v Secretary of State for the Home Department [2014] EUECJ C-378/12. The First-tier Tribunal Judge failed to make any reference as to how the appellant has established five years' continuous residence in the Regulations.
(ii) The Secretary of State from paragraph 9 of her grounds onwards also asserted that the applicant was obliged to show if the appellant fell into the 'maybe' class of case under MG why his alleged integration, even if proved as arguably above on the basis of previous compliance with the Regulations, had not been broken by the act of imprisonment and the associated criminality in this case. The First-tier Tribunal Judge it was argued failed at paragraph 48 to consider the level of his integration in the light of his conviction and sentence of six years' imprisonment for rape and sexual assault. He committed this offence before being imprisoned in June 2012 demonstrating his disregard in the laws of the UK. Furthermore, the judge failed to have regard to the aggravating features of the appellant's offending and this was crucial to the assessment of integration. Further it was submitted at paragraph 10 of the grounds that the appellant had failed to take responsibility for his actions.
(iii) As a separate argument it was submitted that the First-tier Tribunal had materially misunderstood what "serious" was when considering whether the applicant had acquired a permanent right of residence. Even if the lower level of protection applied then "they would question whether there are serious grounds of public policy and public security in this case". The fact that the applicant's offending was in a domestic context and therefore was not a general threat was an example of the judge misdirecting himself. The offence was very serious and all future partners were members of the public and would be at risk. It was also noted at [49] that the judge appeared to make a contradictory finding in relation to the risk posed.
11. At the hearing before me Mr Norton confirmed that he only relied on the grounds as from paragraph 9 onwards (that is (ii) and (iii)). He accepted that the second level of protection had been established by the appellant.
12. Mr Bazini submitted that there had been a concession at the hearing by the Home Office Presenting Officer that at paragraph 21(3), that is the second level of protection had been established, because the appellant had been living in the UK whilst his father had exercised treaty rights. Mr Norton confirmed that he had considered the file and agreed that there had been evidence that the father had been exercising treaty rights whilst he was in the United Kingdom. Mr Norton agreed that the grounds related to the level of integration and the seriousness and did not take it further than that.
13. Mr Bazini submitted that the Home Office Presenting Officer before First-tier Tribunal Judge Hanbury had accepted that the level of protection in relation to paragraph 21(3) applied on the basis of five years' residence. Mr Bazini also referred to Supreme Court case of Secretary of State for the Home Department v Franco Vomero [2016] UKSC 49 which, at paragraph 26, confirmed that there was no identified need for a right of permanent residence in order for a union citizen to invoke enhanced protection and that if any right of residence at all was required in this context a simple right to reside should suffice.
Conclusions
14. The headnote of MG (prison - Article 28(3)(a) of Citizens Directive) Portugal [2014] UKUT 00392 (IAC) reads as follows:
"(1) Article 28(3)(a) of Directive 2004/38/EC contains the requirement that for those who have resided in the host member state for the previous 10 years, an expulsion decision made against them must be based upon imperative grounds of public security.
(2) There is a tension in the judgment of the Court of Justice of the European Communities in Case C-400/12 Secretary of State v MG, ECLI:EU:C:2014:9 , in respect of the meaning of the "enhanced protection" provision.
(3) The judgment should be understood as meaning that a period of imprisonment during those 10 years does not necessarily prevent a person from qualifying for enhanced protection if that person is sufficiently integrated. However, according to the same judgment, a period of imprisonment must have a negative impact in so far as establishing integration is concerned.".
15. Warsame sets out that it is possible to track the 10 years residence back from the date of imprisonment rather than the Deportation Order whereby the level of integration must be assessed.
"[9] ?Be all that as it may, Mr Greatorex submits that FV (Italy), on which the second Upper Tribunal determination depended, is no longer good law. He further submits that any sentence of imprisonment in the ten years before the deportation order must in principle prevent an applicant from accruing 10 years' residence. He accepts that there is a "maybe" category of cases under MG (Portugal) 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?"
16. As recorded above, Mr Norton abandoned the ground (i) of the challenge and which referred to the First-tier Tribunal Judge misdirecting himself with regard the 10 years residence. It is clear from the decision of First-tier Tribunal Judge Hanbury that the judge was referred to and he applied the case of Ahmed Warsame v SSHD [2016] EWCA Civ 16. In considering whether an EEA national should be removed after residing in the UK for ten years prior to the offence, Judge Hanbury identified that an overall assessment had to be made whether the appellant had integrated with the host country.
17. First-tier Tribunal Judge Hanbury noted at paragraphs [10] and [11] the following:
10. Mr Bazini went on to outline the issues as follows:
(1) whether the appellant had become sufficiently integrated; and
(2) whether or not he posed a threat of a particularly high level of risk to security of the public.
11. Helpfully, Mr Bryant, who appeared for the respondent, broadly agreed with those being the issues."
18. First-tier Tribunal Judge Hanbury also noted that Upper Tribunal Judge Blum had preserved the findings of fact and conclusions from Judge Moore's decision at paragraph 22 and 26 which read as follows:
"22. I am satisfied that this appellant entered the UK when he was approximately 8 years of age in 2001. In such circumstances he has therefore lived in the UK for in excess of 14 years. Reference to the appellant's supplementary bundle clearly demonstrates that for every year between 2003 and 2013 this appellant resided in the UK. Whilst the oldest document is a Karate award dated 31st January 2003 I am nevertheless satisfied that it must have been some little time prior to that date that the appellant entered the UK, and I am willing to accept in these circumstances that the appellant entered the UK on 29th August 2001. The evidence of the sister of the appellant supports the claim of residence in the UK, and I find no reason to doubt the veracity of such evidence which concurs with the evidence of the appellant's mother given at this hearing.
?
26. Turning to the issue of the index offences they are undoubtedly serious and involved an abuse of trust against the appellant's girlfriend. This is aggravated by the fact that this appellant pleaded not guilty at his trial which at that time clearly would not have demonstrated the appropriate regret and remorse, though I have no doubt that this appellant at the present time having been sentenced to imprisonment has had time to reflect, and now genuinely regrets his conduct, and is remorseful and understands the trauma that has placed his victim under up until his conviction. The appellant accepted that there were aggravated features which included a kind of blackmail by threatening to inform his victim's parents. However, I also take note that the sentencing judge recorded that both the appellant and his girlfriend '...were both young and inexperienced'. He further noted that the victim did not wish the appellant 'any harm', and that these were her words and not those of the sentencing judge. The victim also wished 'to remain on friendly terms' with the appellant. The sentencing judge found the appellant to be at that time lacking in maturity. I think it also worthy to note that the sentencing judge found the offences to be 'completely out of character', and that the appellant had no previous convictions of any kind. The judge also recorded that he had carefully read the pre-sentence report which suggested that the appellant was of 'low risk of re-offending', and the judge went further in recording that he would 'hope and expect that that is right'. It would therefore appear that the judge had an expectation of low risk of re-offending. In his concluding remarks the sentencing judge stated that the appellant would be sent to a young offender's institution until he reached his 21st birthday and then transferred to an adult prison and thereafter be eligible for release after half that sentence or maybe something less, and then be placed on licence thereafter until the end of 6 years. That was the anticipated penal process, but the sentencing judge significantly in my view recorded the following:
'I do not think it will apply, but if you were to commit any offence thereafter during that period you will be liable to be recalled to prison'.
It would therefore appear to that sentencing judge who heard all the evidence that he was of the view that this appellant would not be recalled to prison due to the commission of 'any offence' during the period of licence."
These paragraphs formed the starting point of the judge's determination.
19. The key sections of Judge Hanbury's determination were set out at paragraphs 44 to 49 and to which I refer below.
20. In his decision Judge Hanbury referred to the various levels of protection available to EEA nationals such as the appellant and these are set out at paragraph 45. Judge Hanbury referred to the legal position as set out such that a claimant who had resided in the UK for a continuous period of ten years prior to his incarceration could only avail himself of the highest level of protection if he had sufficiently integrated into the UK society. There is some tension in the judgment of the CJEU as referred to by the Upper Tribunal in MG whereby a period of imprisonment can be included in the period before the ten year period but that also the period of imprisonment has a negative impact insofar as establishing integration.
21. It is clear that the judge at paragraph 44 accepted that the appellant had resided in the UK continuously for a period of ten years by implication and there was a concession by Mr Norton that the father was living in accordance with the EEA Regulations. The file showed his father was exercising treaty rights. At paragraph 2 of his decision the judge had set out that the appellant was born in 1993, entered the UK in 2001 at the age of 8 years old, and thereafter was at school. The judge recorded that the appellant was in fact convicted of sexual offences on 4 March 2013 and that the appellant was sentenced on 2 April 2013 to six years' imprisonment for those offences. He was informed by the respondent on 22 May 2013 that he was liable to deportation by way of service of an ICD.0350 and on 16 March 2015 he was served with a decision for deportation and a signed deportation order. By the date of his sentence of imprisonment on 2nd April 2013 the appellant was still under the age of 21 years thus dependent on his father under the EEA Regulations and living in accordance with the EEA Regulations. He was thus a 'family member'.
22. Whether the ten years prior to imprisonment has been broken will depend by way of overall assessment on the degree of integration. As noted above, the judge at paragraph 11 of his determination identified that the Home Office Presenting Officer at the First-tier Tribunal agreed that one of the two questions in issue was whether the appellant had become sufficiently integrated. Paragraph [45] of the decision shows that the judge did proceed on the basis of the highest level of protection. As recorded in the decision, there was a great deal of common ground between the advocates and the facts were essentially not in issue. At paragraph 49 the judge identified:
"it was accepted that the appellant had resided in the UK for a continuous period of at least ten years".
23. The question of integration was indeed addressed by the judge at paragraph [48] where he referred to the findings of Judge Moore. As Mr Bazini indicated it was difficult to see how much more the judge could have said about integration prior to the period of imprisonment. From a reading of the decision as a whole it is clear that the judge concluded that the appellant was sufficiently integrated and that integrating links had not been broken and that by the date of the deportation decision but also prior to imprisonment the appellant had achieved a significant level of integration. There is no authority on whether it is harder for a child to integrate but from a reading of the decision it would appear the judge accepted that the appellant had integrated throughout his childhood prior to his imprisonment. The judge noted that the appellant attended school and university, which contributes significantly to the analysis and acceptance of sufficient integration. The appellant lived with his parents and his sister was also at University. In other words the whole family were integrated. The appellant had worked at Sainsbury's whilst he was a student. He had no recollection of Germany from whence the family came [12] and the appellant had gone to primary school in the UK.
24. Even if more were required it is evident from the determination that the judge adopted the findings of Judge Moore and further identified that the appellant was a child when he came here at the age of 8 and developed during his formative period at school and in part at college. The judge overall clearly accepted that the appellant had lived for over half his life in the UK and that is in excess of fourteen years, attended school and university and had many friends here. All of the family were in the UK. The judge found that the appellant had neither friends nor relatives in Germany.
25. Finding that there must be imperative grounds of public security justifying removal the judge found they were not in existence in this case. The judge recorded at paragraph [39] in relation to imperative grounds that the level of threat needed was, 'a particularly high level of seriousness' being 'more general than a threat to a particular individual'. The judge addressed himself to the question of whether the imprisonment had broken the integrating links at paragraph [33]. The point was also recorded that it would be bizarre to treat a child more harshly than an adult and in effect to conclude because of the appellant's dependence on his parents that he could not have integrated sufficiently. The judge, at paragraph [47], clearly rejected that notion for good reason that an adult but not a child would be able to establish entitlement to rely on the Immigration (European Economic Area) Regulations 2006.
26. The judge considered that the appellant was fully integrated and it is clear from the decision overall found thus his imprisonment (also for the reasons given in [49] in relation to the offence) did not break his integration.
27. The judge at [49] found that even if he was wrong about that and the appellant was only entitled to the lower level of protection under Regulation 21(3), he analysed whether there were serious grounds of public policy or public security in this case. The Secretary of State challenged the judge's treatment and approach to the offence in his reference to the domestic context and the failure to refer to the aggravating features. It was not helpful that the judge expressed himself poorly in referring to the offence being against the appellant's girlfriend but the judge did certainly identify that the sentencing remarks showed that the offence was out of character and the appellant had no previous or subsequent offences. Although the judge referred to the offence as being in the "domestic context" and therefore did not appear to be a general threat to the public he nonetheless identified that rape was always a serious offence.
28. The seriousness of the offence and the circumstances, including the aggravating features, were indeed referred to in the paragraph 26 of First-tier Tribunal Judge Moore's decision which was preserved by the Upper Tribunal, clearly laid out and these were adopted by Judge Hanbury. In particular there was reference to the sentencing remarks by the Sentencing Judge and I set these out. It is not that the judge considered that the offence was not serious but that there were extraneous circumstances to take into account.
29. First-tier Tribunal Judge Moore, whose findings were adopted, identified that the appellant "at the present time having been sentenced to imprisonment has had time to reflect and now genuinely regrets his conduct and is remorseful and understands the trauma that he placed his victim under up until his conviction." Judge Moore at [26] also noted that
"the appellant accepted that there were aggravating features which included a kind of blackmail by threatening to inform his victim's parents" although the sentencing judge recorded that "both the appellant and his girlfriend ...were both young and inexperienced"".
"The sentencing judge found the appellant to be at that time lacking in maturity"
and that
"the offences were completely out of character" and that the appellant had "no previous convictions of any kind".
There was detailed reference to the pre-sentence report which suggested that the appellant was at
"low risk of re-offending".
Of particular note was that the appellant was placed on licence for six years after his release and that Judge Moore at the preserved paragraph [26] concluded that the sentencing judge
"significantly in my view recorded the following -
'I do not think it will apply, but if you were to commit any offence thereafter during that period you will be liable to be recalled to prison'. It would therefore appear to that sentencing judge who heard all the evidence that he was of the view that this appellant would not be recalled to prison due to the commission of any offence during the period of licence."
30. I am not persuaded that the judge misunderstood what "serious" was when considering the lower level of protection or diminished the seriousness of the offence. It was a finding that there was an expectation of a low risk of re-offending in the light of all the circumstances and factors to be taken into account. Overall the judge did not take into account irrelevant circumstantial considerations when finding he was not a threat to public policy and made findings open to him and adopted preserved findings. The First-tier Tribunal Judge correctly addressed himself to the issues such as integration, the effect of imprisonment and the serious nature of the offence. Overall I find no error in the analysis or approach of First-tier Tribunal Judge Hanbury.
31. I find that the challenge on the grounds as set out are merely a disagreement with the First-tier Tribunal Judge's decision.
32. As a result I find no error of law and the decision is maintained.

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.

Signed Helen Rimington Date Signed 31st January 2017

Upper Tribunal Judge Rimington