Tribunal decisions

The decision

IAC-AH-LEM/CO-V1

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: DA/00123/2016

THE IMMIGRATION ACTS

Heard at Royal Courts of Justice
Decision & Reasons Promulgated
On 25 July 2016
On 01 August 2016
Delivered orally

Before

UPPER TRIBUNAL JUDGE GOLDSTEIN

Between

SECRETARY OF STATE FOR THE HOME DEPARTMENT

Appellant
and

daniel constantinescu
(ANONYMITY DIRECTION NOT MADE)
Respondent

Representation:

For the Appellant: Mr P Duffy, Home Office Presenting Officer
For the Respondent: Ms L Hirst, Counsel instructed by the AIRE Centre

DECISION AND REASONS

1. This is an appeal by the Appellant (hereinafter called the Secretary of State) against the decision of First-tier Tribunal Judge Onoufriou who sitting at Hatton Cross on 25 May 2016 allowed the appeal of the Respondent (hereinafter called the Claimant) a citizen of Romania born on 23 December 1977 against the decision of the Secretary of State dated 3 March 2016 to make a deportation order by virtue of Section 5(1) of the Immigration Act 1971.

2. The immigration history of the Claimant as set out by the Secretary of State in her ICD 3237 was that it was unknown as to when the Claimant had entered the UK but as a European national, he benefited from free movement and would not be subject to immigration control. The Claimant claimed to have remained in the UK for five years.

3. On 2 February 2016, the Claimant was served with an ICD 4932 EEA stage 1 decision by the Metropolitan Police upon his arrest. On 3 March 2016 a deportation decision and a deportation order were served upon the Claimant and on the same date he lodged an appeal. On 22 April 2016 the deportation order served on the Claimant on 3 March 2016 was revoked as the signed deportation order predated the deport decision. On 27 April 2016 a new deportation order was served on the Claimant. On the same date the Claimant's representatives sent to the Secretary of State a Pre Action Protocol letter to which a response was made on 20 May 2016.

4. In her refusal letter, the Secretary of State noted that on 19 June 2009 at the Criminal Court of Paris Division 16, the Claimant was convicted of aggravated procuring: plurality of perpetrators or accomplices and aggravated procurement: multiple victims, for which he was sentenced to three years' imprisonment and banned from entering French territory for five years and he was also fined 20,000 Euros. In that latter regard, the First-tier Tribunal Judge recorded the closing submissions of the Claimant's Counsel that whilst the Presenting Officer had insinuated that the Claimant was connected to human trafficking and modern slavery, there was nothing in the evidence that he was involved in coercion with under-aged persons that might justify such a claim. The evidence was that the Claimant was running a website for an escort agency. Further the Respondent relied upon an untranslated set of French documents and the burden was upon her to translate them if she intended to place reliance upon them.

5. On 11 September 2015, the Claimant was cautioned by the West Midlands Police for taking a motor vehicle without consent. In that regard it was the Claimant's oral evidence before the Judge, that he was a self-employed taxi driver and had started working in this capacity in the UK in July 2012. He had travelled to Switzerland in February 2015, leaving at the UK airport upon departure, a taxi that he had rented from Westfield Radio Cars that he then abandoned.

6. In her refusal letter, the Secretary of State did not accept that the Claimant had been resident in the United Kingdom in accordance with the EEA 2006 Regulations for a continuous period of five years. It was pointed out that on 2 February 2016 the Claimant was served with a letter of request to provide evidence that he had been exercising his treaty rights and evidence of his residence. In response, the Claimant claimed to have lived in the UK for five years working as a taxi driver in Wolverhampton for 3.8 years and that he had recently worked in London as a waiter. The Secretary of State considered that the evidence that the Claimant had provided in support that he had been exercising treaty rights between 4 December 2015 and 5 February 2016 a period of three months, was thus limited. He had failed to demonstrate that he had acquired a permanent right of residence in the United Kingdom.

7. In consequence, consideration was given as to whether the Claimant's deportation was justified on the grounds of public policy or public security under Regulation 19(3) (b) and 21 of the 2006 Regulations. In that regard the Secretary of State concluded inter alia, that although the details of the Claimant's offences in France were not known, it was that he had used exploitation for illegal means and it was clear that the Claimant had the potential that might in the future lead him to commit further offences of this nature. This of course was a point made again by Mr Duffy before me today.

8. There was no evidence provided to suggest that the Claimant had addressed the issues that caused him to behave in this manner whilst knowing that these activities were illegal and so the Secretary of State considered that the Claimant posed a significant and unacceptable risk of harm to women and to the public in the United Kingdom.

9. Notably, the Secretary of State accepted that she had seen no evidence that the Claimant had repeated this very serious offence as reflected in the sentence that had been imposed upon him, but it was considered that insufficient time had passed to establish that the Claimant no longer presented a risk of doing so. Further, it was concluded the Claimant's subsequent caution in the United Kingdom for taking a motor vehicle without consent showed that he presented a risk of reoffending.

10. In considering the principle of proportionality in terms of Regulation 21(5) (a) and 21(6), it was noted inter alia by the Secretary of State, that the Claimant was 38 years old, in good health, he had spent his youth and formative years in Romania and France, and he had provided insufficient evidence to have been continuously resident here. Whilst the Claimant had stated that his wife and child were residing in the UK he had provided no evidence of this claim. The Claimant had however provided some evidence of his employment with a recruitment agency. There was no evidence of the Claimant's social or cultural integration into the community of the UK and no evidence or reason apparent as to why the Claimant, notwithstanding the length of time he claimed to have spent in the UK, could not reintegrate into life on return to Romania.

11. The First-tier Tribunal Judge following his detailed consideration of the evidence in its totality including the oral evidence of the Claimant, concluded for the reasons set out comprehensively over paragraphs 30 and 31 of his decision, that the Claimant was not entitled to a permanent right of residence under Regulation 15 and that he thus came within the scope of Regulation 21(1) namely that the Secretary of State's decision could be taken on the grounds of public policy, public security or public health.

12. The Judge proceeded to take account of the provisions of paragraphs 21(5) and (6) against the backdrop of the facts as found and thus at paragraph 33 he noted that the Claimant had arrived in the United Kingdom some time in 2011 and that it appeared "that he had not committed any further offences in the sex industry since his release from French prison". That of course was a matter that today; Ms Hirst particularly drew to my attention in her submissions.

13. In that regard the Judge further observed that the Secretary of State had failed to provide a probation or OASys Report to assess the likelihood of the Claimant reoffending. Mr Duffy tells me that in the particular circumstances of this case, it was not possible to obtain such reports and therefore for the Judge to say that the Secretary of State had failed to produce the reports was, in his submission, somewhat harsh. Nonetheless the fact remained that there was no such evidence before the Judge to further assist him in determining the weight to be attached to the commission of the Appellant's offence and conviction in France.

14. What he did do, was to take account of the judgment in A, B and C [2013] EWHC 1272 (Admin) in particular at paragraph 58, that the onus was upon the Secretary of State to show there was a risk of future offending. In terms of the absence of reports the Judge referred to the following passage from the judgement that such reports:

".. would have been critically important documents since (it would have) taken up-to-date (the) risk assessment of the likelihood of (such) behaviour in th (is) offence [theft] (in the) specific way that he had adopted in 2008. That behaviour was the only behaviour that the defendant had identified as contributing to the risk to the fundamental interests of the UK on which the deportation decision was based."

15. The Judge continued that as in A, B and C the Claimant in the present case "only had one previous criminal conviction being the conviction in France for which the defendant now wished him to be deported".

16. He went on to say:

"As Regulation 21(5) (e) points out, a person's previous criminal convictions do not in themselves justify the decision". Mr Williams [who appeared for the Secretary of State before the First-tier Tribunal Judge] suggested that there was an element of human trafficking and slavery in the (Claimant's) crime and there is no evidence to that effect. The (Secretary of State) has failed to translate the French documents which may or may not have shed light on this issue. As to the personal conduct of the (Claimant) it would appear that apart from one comparatively minor incident of taking a vehicle without consent for which he was cautioned, he has conducted himself responsibly and worked and paid taxes".

17. Ms Hirst in her submissions submits that contrary to the assertion of Mr Duffy, such reference demonstrates that the Judge was taking into account the factor concerning the Claimant's previous conviction in France as well as that in the United Kingdom for which he had received a caution.

18. The Judge continued at paragraph 34 of his decision to say that mindful of Regulation 21(6) the main consideration was the fact that the Claimant had a daughter resident in the UK although she was not a British citizen. It was not clear whether the Secretary of State proposed to deport her mother in which case the Claimant's daughter would clearly continue to remain with her mother and the Claimant would have easy access to her. The Judge continued that as of the date of the hearing before him he thus had to assume that the child's mother would remain in the UK exercising her treaty rights and so would the Claimant's daughter. This led to a consideration of the best interests of the Claimant's daughter under Section 55 of the Borders, Citizenship and Immigration Act 2009. The Judge recognised that though this was a significant factor to be taken into account, it could be outweighed by the public interest.

19. In the present case there had been no assessment of the child and the effect that the Claimant's deportation might have upon her, but it was however clear that the Claimant had lived apart from her for at least six months in 2015 and only visited her every two weeks prior to his detention. The Judge thus concluded at paragraph 34 as follows

"There would no doubt be some emotional effect on his daughter but if I considered (the Claimant) was a risk to the public because of his likelihood to commit further offences in the future in the sex industry I would not consider that the child's best interests outweighed the public interest".

20. I pause there, because again, this was a matter to which Ms Hirst referred to me as further evidence showing that the Judge was clearly taking into account the Claimant's past conduct in France as well as that in the United Kingdom.

21. The Judge continued

"However I find that (the Secretary of State) has simply not satisfied the burden upon her as set out in A, B and C and also Regulation 21(5) and (6) that (the Claimant) is a future risk to the United Kingdom public so I consider it appropriate to allow this appeal."

22. The grant of permission to the Judge's decision by First-tier Tribunal Judge Kelly dated 20 June 2016 was limited to the following.

"It is arguable that the Tribunal failed to consider the personal conduct of (the Claimant) in the round and that the absence of evidence by way of professional risk assessment [such as an OASys Report or similar] did not excuse the Tribunal from undertaking that assessment by reference to the evidence that was available to it."

23. As the Secretary of State's grounds pointed out, Regulation 21(5) (c) required the personal conduct of the person concerned to be assessed in the round and it was contended in the present case the Judge had failed

"to adequately assess the more recent offending in the UK in the context of the (Claimant's) serious criminality in Romania and France and failed to properly consider 'personal conduct' in the round. With respect this is a material error of approach under 21(5) (c)".

24. The grounds continued by pointing out that A, B and C was a judgment of the High Court granting permission to apply for judicial review where it was noted at paragraph 28 that

"The basis of the defendant's various decisions to deport A or in relation to her potential deportation were her conviction and subsequent sentence on four counts involving very serious offences related to her attempt to facilitate the admission into the UK of two Ghanaian minors who are unrelated to her using false German identification documents".

25. The Judge's statement in the present case at paragraph 33, that the first issue he needed to consider was the principle of proportionality, arguably indicated the material misapplication of A, B and C to the facts of the appeal where it had or might have been impermissibly placed on a mistaken parallelism of facts amounting to misdirection.

26. Thus the appeal came before me on 25 July 2016 when my first task was to decide whether the decision of the First-tier Tribunal Judge disclosed an error or errors on a point of law such as may have materially affected the outcome of the appeal.

27. Immediately prior to the hearing, I received from the Claimant's representatives their Rule 24 response that in summary submitted: firstly that the Secretary of State had failed to identify any error of law in the First-tier Tribunal's reasoning and that ground 2 upon which this appeal has been limited, represented little more than the Secretary of State's disagreement with the Tribunal's conclusion. It was further maintained there was no error of law in the Tribunal's approach; the Tribunal had directed itself properly. Reference was made in that regard to paragraph 32 of the Judge's decision to which I have earlier referred and by reference to Regulation 21 and Article 27 of the Directive that required that the personal conduct of the individual concerned had to represent "a genuine, present and sufficiently serious threat" to a fundamental interest of society.

28. It was maintained that the burden was on the Secretary of State to demonstrate that the Claimant's conduct represented such a threat and as the First-tier Tribunal Judge had noted at paragraph 33 of his decision (see above), the Secretary of State had failed to produce any evidence of current risk.

29. It was maintained that the Tribunal had taken proper regard to the Claimant's previous and current offending, but that the Judge had noted that the Claimant had otherwise conducted himself responsibly, worked and paid taxes (paragraph 33) and that in particular that the Tribunal did not consider that the Claimant currently posed a risk of further similar trafficking offences [34].

30. Finally, that the Tribunal had reached the conclusion that the Secretary of State had failed to discharge the burden upon her, of showing that the Claimant's conduct taken as a whole met the necessary criteria requiring a justification to deport the Claimant and that this was a conclusion that was properly open to the First-tier Tribunal Judge on the facts and there had been no suggestion that such conclusion made was in any sense perverse.

Assessment

31. I have concluded that the decision of the First-tier Tribunal Judge fails to disclose a material error of law. At the outset of the hearing before me I had drawn the parties' attention inter alia, to the decision in Dumliauskas and others [2015] EWCA Civ 145 that concerned the circumstances under which the Secretary of State could exercise her powers under Regulation 21 to expel nationals of member states on the grounds of public policy or public security. It was held inter alia, that the Secretary of State's submission that the prospects of rehabilitation were irrelevant unless the offender had a permanent right of residence was incorrect. Once proportionality was engaged the facts that were to be taken into account did not vary with the qualifications of the individual concerned. The whole point of deportation was to remove from the United Kingdom someone whose offending rendered him a risk to the public. The Citizens' Directive recognised the more serious the risk of reoffending the greater the right to interfere with the right of residence. Conversely, if there was no real risk of reoffending then the power to deport did not arise. Thus the first question to be considered in any EEA deport case was whether there was such risk and only if that was established would other considerations logically arise. Such in my view. was clearly the approach of the First-tier Tribunal Judge in the present case not least at paragraphs 32, 33 and 34 of his decision - see above.

32. I also referred the parties to Abdul (Section 55 - Article 24(3) childhood) [2016] UKUT 00106 (IAC) where it was held inter alia, that there was no hierarchy of weight or importance in the various considerations recited in Regulation 21(6) of the EEA Regulations. The weight to be attributed to each factor would vary according to the fact-sensitive context of the individual case. Indeed the guidance continued inter alia, to point out the need for the decision maker and/or the First-tier Tribunal concerned with Section 55 of the 2009 Act, to scrutinise the degree of engagement with all material evidence and to make clear findings as to what the best interests of any affected child were.

33. Although this was not strictly speaking, the subject of challenge by the Secretary of State in the present case, it is as well for the sake of completeness and to demonstrate the care that was taken by the First-tier Tribunal Judge in reaching his conclusions, that this was again, precisely the approach that he took at paragraph 34 of his decision in considering the situation as it related to the Claimant's daughter and the impact upon her of the Claimant's removal. A person's previous convictions cannot in themselves justify a decision to remove him. The decision must be based exclusively on the personal conduct of the person concerned.

34. In the context of the present case, the fact that the Judge considered that the Claimant's caution in the United Kingdom did not in itself justify the decision to remove him, did not mean that the fact of the Claimant's previous conviction in France was irrelevant.

35. However this is not a situation analogous to Section 32 of the 2002 Act whereby the fact of the conviction can permit justification of the removal. The question before the Judge in the present case was thus whether in all the circumstances of the case, including the fact that the Claimant had committed a serious offence in France, meant that he represented a current threat to public policy and public security. Again that is the approach that I find, the Judge in the present case clearly undertook.

36. I also referred the parties to the decision in Vasconcelos (risk - rehabilitation) [2013] UKUT 00378 (IAC) where it was held that in assessing whether an EEA national represented a current threat to public policy by reason of the risk of resumption of opportunistic offending, the Tribunal should consider any statistical assessment of reoffending provided by NOMS, but it was not bound by such data if the overall assessment of the evidence supported the conclusion of continued risk.

37. In the present case, the Judge observed that the Secretary of State had failed to produce relevant papers that might have assisted him in assessing the likelihood of the claimant reoffending. Whether there was a failure on the part of the Secretary of State or not, the fact remained that no such reports were before the First-tier Tribunal Judge for the purpose of making that assessment. The Judge also noted that the Secretary of State failed to arrange to translate the French documents that in his words "may or may not have shed light" on the nature of the offences for which the claimant had been convicted in France.

38. I find upon a reading of his decision as a whole, that the Judge's overall and careful assessment of the evidence that was at the date of hearing before him, and the conclusions that he, in consequence reached, were both open to him and supported by that evidence and therefore sustainable in law.

39. In cases where the central issue is whether the offender has sufficiently been rehabilitated to diminish the risk to the public from his behaviour, the experience of Immigration Judges has been that hearing and seeing the offender give live evidence as in the present case, is an important part of the fact-finding process and as to an assessment of the sincerity of evidence. See for example, the observations of this Tribunal as to the benefits of having heard the offender in Masih (Pakistan) [2012] UKUT 46 (IAC) at paragraph 18.

40. Mindful of the guidance of the Court of Appeal in R (Iran) [2005] EWCA Civ 902. I find that it cannot be said that the First-tier Tribunal Judge's findings were irrational and/or Wednesbury unreasonable such as to amount to perversity. It cannot be said they were inadequate. This is not a case where the First-tier Tribunal Judge's reasoning was such that the Tribunal were unable to understand the thought processes that the Judge employed in reaching his decision.

41. I therefore find the Judge properly identified and recorded the matters that he considered to be critical to his decision on the material issues raised before him in this appeal.

42. Ms Hirst invited me to make an Order to reimburse her client, the Claimant, for his travel expenses in attending today's hearing, but indicated no adequate reason to depart from the general practice of this Tribunal, which is not to make such an Order.

Decision

43. The making of the previous decision involved the making of no error on a point of law and I order that it shall stand.

No anonymity direction is made.

Signed
Date 29 July 2016
Upper Tribunal Judge Goldstein