DA/00140/2017

• Status of case: Unreported
• Hearing date: 8 Jul 2022
• Promulgation date: 21 Jul 2022
• Publication date: 6 Dec 2023
• Last updated on: 6 Dec 2023

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: DA/00140/2017

THE IMMIGRATION ACTS

Heard at Field House
Decision & Reasons Promulgated
On the 8 July 2022
On the 21 July 2022



Before

UPPER TRIBUNAL JUDGE NORTON-TAYLOR

Between

y n
(anonymity directioN MADE)
Appellant

and

SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent


Pursuant to Rule 14 of the Tribunal Procedure (Upper Tribunal) Rules 2008, I make an anonymity order. Unless the Upper Tribunal or a Court directs otherwise, no report of these proceedings or any form of publication thereof shall directly or indirectly identify the appellant or members of his family. This direction applies to, amongst others, all parties. Any failure to comply with this direction could give rise to contempt of court proceedings.



Representation:
For the appellant: Ms S Ferguson, Counsel, instructed on a Direct Access basis
For the respondent: Mr E Tufan, Senior Home Office Presenting Officer



DECISION AND REASONS

Introduction
1. The appellant is a citizen of France, born in August 1991 and currently residing in that country. This is the re-making of the decision in his appeal following the earlier decision by Upper Tribunal Judge Jackson, promulgated on 28 July 2021, by which she concluded that the First-tier Tribunal had erred in law when allowing the appellant’s appeal against the decisions to deport him under the Immigration (European Economic Area) Regulations 2016 ("the Regulations") and to refuse his human rights claim.
2. This case has a lengthy procedural history. The respondent’s decisions referred to in the previous paragraph was issued on 20 February 2017, with a supplementary reasons for refusal letter following on 23 April 2018. The appellant appealed to the First-tier Tribunal. That original appeal was allowed by a decision promulgated on 10 July 2018. That decision was set aside by the Upper Tribunal and the appeal remitted to the First-tier Tribunal. By a decision promulgated on 28 February 2020, the remitted appeal was again allowed. Judge Jackson’s error of law decision is annexed to this re-making decision and the two should be read together. By way of summary, Judge Jackson essentially found that the First-tier Tribunal had:
(a) Failed to have any or any adequate regard to the considerations set out in schedule 1 to the Regulations (relating specifically to the fundamental interests of society);

(b) Conducted only limited consideration of relevant evidence going to the question of re-offending;

(c) Failed to conduct an adequate proportionality assessment under the Regulations;

(d) Failed to undertake an adequate balancing exercise in respect of Article 8.
3. A single finding of fact was preserved by Judge Jackson, namely that the appellant had not acquired a permanent right of residence in the United Kingdom.

The issues in this appeal
4. In light of the relevant legal framework and error of law decision, the core live issues in the appeal are, in respect of the Regulations:
(a) Whether the respondent can show that the appellant’s personal conduct represents a genuine, present and sufficiently serious threat affecting one of the fundamental interests of society, taking into account past conduct of the person and that the threat does not need to be imminent;
(b) Whether the decision under appeal is in any event proportionate.
5. The analysis under the Regulations is to be conducted on the basis that the appellant enjoys only the lowest level of protection.
6. As regards the Article 8 aspect of this appeal, it is agreed that the appellant is a medium-level offender within the context of Part 5A of the Nationality, Immigration and Asylum Act 2002 (“,”) as amended. It is for him to show that he can satisfy either, or both, of the Exceptions under sections 117C(4) and 117C(5) of the Act, or, if he cannot, whether there are very compelling circumstances in his case, with reference to section 117C(6).

The evidence
Documentary evidence
7. The parties are well aware of the content of the documentary evidence before me and I do not propose to rehearse it here. I have considered the contents of the respondent’s appeal bundle, under cover of letter dated 3 May 2018, and the appellant’s bundle, indexed and paginated 1-81, with additional unpaginated documents attached thereto. I will deal with relevant aspects of that evidence when setting out my findings of fact and conclusions, below.
8. A number of the documents in the appellant’s bundle are in the original French, but have not been translated (these related to the appellant’s employment in France, a course of study being undertaken there, and confirmation of his children’s current schooling arrangements). By way of a preliminary observation, I suggested to the parties that the documents in question appeared to be clear about their nature and content and, to a greater or lesser extent, did not concern controversial matters. Mr Tufan confirmed that the respondent had no objection to the untranslated documents being admitted in evidence, nor in respect of what they purported to say.

Oral evidence
9. Prior to the hearing, a good deal of time and effort had been put into ensuring that the appellant was able to return to the United Kingdom in order to attend. When the decision was made in 2017, the respondent had issued a certificate under regulation 33 of the Regulations, which permitted removal pending the determination of the appeal. The appellant was subsequently permitted to re-enter the United Kingdom for the purposes of attending both hearings before the First-tier Tribunal, pursuant to regulation 41 of the Regulations.
10. Until the day before the hearing, it appeared as though the appellant would be once again present in the United Kingdom. However, Ms Fergusson contacted the Tribunal to confirm that the appellant had tested positive for Covid, as had his children, and that he would in fact the unable to attend the hearing (confirmation of positive Covid tests was received shortly after the hearing ended. Mr Tufan had not objected to post-hearing evidence being submitted).
11. Arrangements were put in place to allow the appellant to “attend” the hearing remotely. However, he was unable to give oral evidence from France. This is because the French authorities had not given permission, whether on the basis specific to this case or in more general terms, for those resident in France to give evidence at a tribunal hearing in the United Kingdom. This state of affairs was relayed by Mr Tufan, who had helpfully contacted a senior colleague (Mr P Deller). In light of the decision in Agbabiaka (evidence from abroad, Nare guidance) Nigeria [2021] UKUT 286 (IAC), the appellant was therefore precluded from giving evidence to me.
12. In light of this development, Ms Ferguson confirmed that the appellant nonetheless wished to proceed with his appeal on the day. I sought confirmation from Ms Ferguson that the appellant was fully aware of the consequences of this, namely that his witness statement evidence would go untested and that this therefore could have a material bearing on the weight attached to it. In addition, he would not be able to provide any additional information or clarification of matters already set out in writing. She provided that confirmation. I then summarised the situation to the appellant over the remote link and he once again confirmed that he wished to proceed despite the fact that he could not himself give evidence.
13. The appellant’s partner, Ms Y, did attend the hearing and she gave oral evidence. Her evidence is a matter of record. In very brief summary at this stage, she adopted the contents of three letters written in 2020, 2021, and 2022. She provided further information about her own health conditions, her employment, and the current family arrangements by which the three children are residing with the appellant in France, and have been since 2020. She expressed her concerns about the well-being of her two sons, in particular the youngest. She expressed her belief that the appellant was in many ways a different person from when he had offended in the United Kingdom between 2014 and 2016. He had let go of the dream to be a professional footballer, now realised the central importance of his children in his life, and had understood the hurt suffered by Ms Y and the children as result of his actions.

The parties’ submissions
14. Mr Tufan relied on the respondent’s 2017 decision letter and the 2018 supplementary reasons for refusal letter. He placed specific reliance on the interests of society set out in paragraphs 3 and 7(a)-(f) of schedule 1 to the Regulations. The 2016 OASys report assessed the appellant as being “high risk” of re-offending. It was unclear whether the last offence had been taken into account when that report was prepared. The appellant was a “persistent” offender and he was clearly threat to the fundamental interests of society. Ms Y’s decision to send the children over to France had simply been a matter of parental choice.
15. In respect of Article 8, Mr Tufan submitted that if the appellant could not succeed under the Regulations, he would not be able to succeed on this alternative basis. Neither of the two Exceptions could be made out and there were no very compelling circumstances in the case.
16. Ms Ferguson relied on her skeleton argument. She suggested that, notwithstanding the preserved finding, the appellant may indeed have been a “worker” in the United Kingdom for longer than had been thought. In any event, she submitted that the respondent could not show that the appellant constituted a threat now. It had been a significant period of time since last offence, the appellant was in stable employment in France, and now had real insight into his past conduct. The decision to send the children to France was not simply a matter of choice. It was submitted that Ms Y not only had a demanding job, but that her health was a real problem in terms of looking after the children. That problem would apply whatever her work was. The appellant was no longer a “persistent” offender. When looking at the particular offences for which he had been convicted, the appellant did not now pose a “high” risk of re-offending. The best interests of the children were important. It is unduly harsh for them to be in France, separated from their mother. It would also be unduly harsh for them to be separated from their father. Alternatively, there were, on a cumulative view, very compelling circumstances.

Findings of fact
17. I have considered the relevant evidence in the round, taking account of consistency and plausibility as integral aspects of overall credibility.
18. It is uncontroversial that the appellant came to the United Kingdom in 2009 and remained here until his deportation in July 2017. There was evidence before the First-tier Tribunal which demonstrated that the appellant had been employed in the retail field for periods of time and earned some money playing for various football clubs, including Stoke City and AFC Wimbledon. However, the judge below had not been satisfied that there was five-year period of work. That finding was preserved and there is no new evidence before me which justifies me going behind it.
19. The appellant’s offending history in the United Kingdom is not in dispute and reads as follows:
(a) Theft by employee. Guilty plea. Date of offence: 13 April 2014. Conviction date: 29 April 2014. Sentence: community order;

(b) Failure to comply with a community order. Conviction date: 17 September 2014. The order under (a) varied to suspended imprisonment of 16 weeks, wholly suspended for 2 years;

(c) Destruction or damage of property, possession of articles for use in fraud, common assault and commission of an offence during the operational period of a suspended sentence order (and whilst on bail). Guilty pleas for each. Offences date: 29 January 2016. Conviction date: 17 March 2016. 4 weeks imprisonment for possession of the article and 6 weeks imprisonment for the last offence. No separate penalties for other offences;

(d) Shoplifting. Plea unknown. Date of offence: 17 February 2016. Conviction date: 16 June 2016. Sentence: electronic tagging and a curfew requirement. The offence was committed whilst on bail;

(e) Shoplifting. Date of offence: 29 June 2016. Conviction date: 13 July 2016. Sentence: fine of £333;

(f) Burglary and theft in respect of non-dwelling premises and commission of a further offence during the operational period of a suspended sentence order. Guilty pleas. Date of offences: 20 March 2015 and 31 January 2015. Conviction date: 2 September 2016. Sentence: 12 months for the first burglary and theft offence, 30 months for the second burglary and theft offence, and 12 weeks from previous suspended sentence activated (the first two periods of imprisonment ran concurrently, and the third consecutively).
20. The appellant obtained and produced a certificate from the French Department of Justice which has been translated. This purports to show that the appellant has a completely clean criminal record in that country. Mr Tufan did not seek to specifically challenge this evidence. I am satisfied that it comes from an entirely reliable source and that it does indeed demonstrate that the appellant has no convictions against his name in France.
21. I found Ms Y to be a very impressive witness. She gave her evidence in an entirely straightforward and candid manner, without exaggeration or inconsistency. She fully appreciated the fact that she could only state her beliefs about what the appellant may or may not do if he were to return to United Kingdom. The testing of her evidence by Mr Tufan did nothing to undermine her credibility. All-told, I find her oral and written evidence entirely truthful and reliable.
22. Whilst the appellant has not of course given oral evidence, his written evidence is fully supported by that of Ms Y and the documentary evidence before me. In this regard, and notwithstanding the absence of any testing of his evidence through cross-examination, I place some weight on his written evidence.
23. The supplementary reasons for refusal letter of 2018 expressly accepted that the appellant’s relationship with Ms Y was genuine and subsisting at that point in time. It is abundantly clear to me, having heard Ms Y give her evidence, that the relationship began in approximately 2010 and has indeed been genuine and subsisting ever since, notwithstanding the obstacles put in its path by virtue of the appellant’s offending history.
24. The couple’s three children were born in 2011, 2012, and 2015. I find that the appellant had a genuine and subsisting parental relationship with all of them from the time of their births. The evidence indicates that the appellant was not living with the children and Ms Y throughout due to some difficulties in the couple’s relationship and his nascent football career. It is difficult to be specific about the amount of time that the appellant spent in prison (and thus away from the children) as there is no clear evidence as to the time actually served. Given that the appellant was deported in July 2017 and was sentenced for his last offences in early September 2016, a period of material incarceration can only have been approximately 10 months at most.
25. The evidence satisfies me that, despite the offending which occurred between 2014 and 2016, the appellant was a devoted and engaged father to the children whilst he resided in the United Kingdom.
26. I find that Ms Y lost her mother to cancer in 2015 and that placed a significant emotional burden on her. Ms Y’s written evidence mentions depression in the past and this is supported by letter from Harrow IAPT Service from January 2017 confirming the completion of a number of CBT sessions relating to anxiety. She was discharged from the service at that time. It was noted that her children and family were protective factors. The appellant was deported to France some six months later. The evidence before me does not indicate that Ms Y is currently being treated for anxiety or depression, but her written and oral evidence alludes to stress and low mood; this is consistent with a past history and the current difficult situation in which she finds herself, in particular the separation from her children.
27. I find that Ms Y suffers from relatively significant physical health conditions, namely seropositive rheumatoid arthritis and inflammatory myopathy (Ms Y described this as polymyostis, but I am satisfied they are one and the same). The former condition is an autoimmune disease which attacks the lining of joints in the hands and feet. The latter (which was diagnosed only this year) is a muscle disease characterised by chronic inflammation and weakness. Ms Y confirmed that it affected her ability to move, her strength, and the amount of activity she could do. She confirmed that she is taking steroids and these assist, at least to an extent.
28. Ms Y’s evidence that she has no other form of support in United Kingdom is, I find, credible. I find that she has two younger siblings who, to an extent, rely on her.
29. I find that the children are all healthy.
30. An unusual aspect of this case is the fact that the children were taken to live with the appellant in France in 2020. Mr Tufan characterised this is a simple matter of “choice” made by Ms Y. On the evidence as a whole, I find that that is an oversimplification of the true position. Ms Y’s evidence provides a clear expression of the upset caused to the children (particularly the older two) when the appellant was deported to France in July 2017. She has said that they cried a lot and the eldest in particular struggled with behaviour at school. When trips were made to France, the children would become very upset when they had to return to the United Kingdom. Ms Y has been candid about her own work, stating that she had committed herself to a hairdressing career in the TV and film industry. This involves long hours and makes parenting alone more difficult. The third element is Ms Y’s health. In oral evidence, she specifically mentioned that the impact of her physical health conditions made looking after the children alone problematic. Finally, Ms Y explained that she has two younger siblings in this country whom she tries to support as best she can. This was another factor keeping her in the United Kingdom. Thus, overall I find that the decision to send the children to France without her accompanying them was not simply down to Ms Y’s desire to pursue her chosen career; other factors played a material part in the process.
31. The letters from school in France shows that all three children are now in education there. No further details as to their progress are provided. However, Ms Y’s written and oral evidence, together with the appellant’s most recent letter, satisfies me that there are particular concerns relating to the two sons. In this regard, I found Ms Y’s oral evidence to be compelling. She described the difficulties faced by them when having to “swap” parents; from being with their mother full-time to then living in a brand-new country with their father as the full-time parent, then having to see their mother for only relatively brief periods (the last two visits by her to France were in January and June 2022). Ms Y explained that in addition to that emotional struggle, the boys had not been brought up bilingually and so had to attempt to learn French when placed into school. That already difficult situation was exacerbated by the advent of the Covid pandemic, which affected face-to-face learning.
32. I find that the two boys are not well-settled in France and are in fact struggling with their education. I accept Ms Y’s evidence that the eldest simply does not want to stay in France, but instead wants to come back and begin his secondary schooling in United Kingdom where his friends are. Ms Y expressed the clearly difficult dilemma in having to potentially make a choice between keeping the children together, albeit in France, or bringing the eldest son back to United Kingdom alone in order to start secondary school.
33. In respect of the younger son, Ms Y gave powerful evidence as to her concerns about his well-being. She credibly explained how he had struggled most with the appellant’s departure in 2017. That son has not and still does not express his feelings and his parents to understand what he is thinking. He has not made many friends at school in France. Ms Y was clearly concerned with her inability to spend more time with him.
34. Ms Y has been candid about the younger child, who has settled best in France out of the three. Given her young age, this is perhaps unsurprising. Having said that, I accept Ms Y’s evidence that she fears the loss of any bond between her and her daughter because of the continuing separation.
35. I find that the appellant has been in stable employment in France for approximately 5 years. I accept the appellant’s own evidence on this, in combination with the payslips and contract of employment contained in the bundle. This evidence has not been challenged by the respondent. I also accept the appellant’s unchallenged evidence that he simultaneously pursued semi-professional football for some three years after being deported, but then moved from Paris to the south, at the same time ceasing his footballing career. The full-time employment with the ‘Fert’ company involves demolition work. There is documentary evidence confirming that, in addition to the employment, the appellant is undertaking an electrician CAP (certificate of vocational aptitude) course, which appears to be combined with skills on health and safety.
36. A significant part of Ms Y’s oral evidence was in response to questions on the appellant’s likely behaviour if he were to return to the United Kingdom. As with her evidence as a whole, I found her answers to be candid and entirely credible. She stated that the appellant was well-aware of what he had put her and the children through as a result of his past conduct. His decision to stop pursuing a career in football had been beneficial to him, allowing him to concentrate on more realistic goals and what was best for his children and the couple’s relationship. Ms Y believed that the appellant has now learnt to communicate better, rather than holding things in as he had done during the period of his offending. She was very open in stating that she could not actually prevent the appellant from offending. She sought to explain that at the time the majority of the offences were committed, the appellant had been in a difficult position: her mother had recently died, the couple had three very young children, the football career was unravelling, and the appellant was not good at expressing his feelings. I find that is a reliable account of the true position at that time (although it is not of course an excuse). She was of the view that the stable employment in France was indicative of his commitment to remain free of any offending and to re-establish a “united household”. That evidence is consistent with what the appellant has said in writing. On his untested evidence alone, I would be disinclined to reach a finding in his favour. However, Ms Y’s strong evidence, standing alone or in combination with the appellant’s written evidence, leads me to find as a fact that the appellant has a genuine and settled intention not to reoffend and to continue in full-time employment (and quite possibly additional educational courses) in order to support Ms Y and the children. I find that this intention applies to his desire to be in the United Kingdom and is not confined to a continuing residence in France.

Conclusions on the Regulations
37. I reiterate that the appellant is entitled only to the lowest level of protection under regulation 27 of the Regulations.
38. The burden of proving that the appellant represents a genuine, present and sufficiently serious threat affecting one (or more) of the fundamental interests of society rests with the respondent and the standard of proof is the balance of probabilities: Arranz (EEA Regulations – deportation – test) [2017] UKUT 294 (IAC).
39. My focus is directed exclusively to the personal conduct of the appellant and not to any wider issues of general deterrence or suchlike, save as mandated by any relevant considerations under paragraph 7 of schedule 1 to the Regulations.
40. With reference to regulation 27(5)(c) of the Regulations, I take the appellant’s past conduct into account and acknowledge that the relevant threat need not be imminent.

Schedule 1: integration
41. I take account of paragraph 2 of schedule 1 as regards integration. This is not a case involving individuals of the same nationality. The appellant resided in the United Kingdom between 2009 and July 2017. He committed a number of offences during the period 2014 to 2016 and I will address these in detail, below. Having said that, he was employment for periods of time, including within the retail sector and as a semi-professional footballer. He established a genuine relationship with British citizen in 2010 and had three children with her. It is the case that the appellant has been outside of the United Kingdom since July 2017 by virtue of his deportation and regulation 33 of the Regulations. In my view, that fact alone cannot go to extinguish any integrative links the appellant may have had whilst residing in the United Kingdom. The contrary position would permit the procedural step of removal pending the outcome of an appeal (which occurred in this case) to defeat any individual’s appeal; that cannot be right as a matter of principle.
42. Paragraph 4 of schedule 1 relates to the attribution of weight and the timing of any integrating links established in the United Kingdom. The appellant began his relationship with Ms Y some four years before the commission of his first offence. He had also been working during that initial period. Two of his children were born well before the commission of that first offence. The youngest child was born during the period in which the appellant was committing offences.
43. I conclude that the “little weight” consideration does not apply to all of the integrative links established by the appellant whilst he was in the United Kingdom. At most, it reduces the weight attributable to the latter period of residence.

Schedule 1: the appellant’s offending
44. Paragraph 3 of schedule 1 provided as follows:
“3. Where an EEA national or the family member of an EEA national has received a custodial sentence, or is a persistent offender, the longer the sentence, or the more numerous the convictions, the greater the likelihood that the individual's continued presence in the United Kingdom represents a genuine, present and sufficiently serious threat affecting of the fundamental interests of society.”
45. In this case, the appellant has received custodial sentences: 4 weeks for possession of the article for use in fraud; 6 weeks committing an offence during the period of a suspended sentence order; 12 months and 30 months for burglary and theft; and 12 weeks for the commission of an offence during a period of a suspended sentence order. The respondent is clearly able to rely on this factor.
46. Mr Tufan submitted that the appellant was also a “persistent offender”. Given the number of convictions accrued between April 2014 and September 2016, I find that the appellant was a “persistent offender”. In short, he kept breaking the law during a period of just under 2 ½ years. However, the epithet of “persistent offender” is not a permanent status; depending on the facts of the case, it can be lost: SC (Zimbabwe) [2018] EWCA Civ 929 (although that case did was not concerned with the Regulations, the analysis of the “persistent offender” issue can appropriately be applied to the present case).
47. The appellant did not offend prior to 2014 and has not offended since he committed the second burglary and theft in March 2015 (the conviction followed in September 2016). When one considers his record in detail, it can be seen that there was a single active offence (and by this I mean an offence other than a failure to comply with a court order) in 2014, the two burglary and thefts occurred in the first quarter of 2015, three offences occurred on the same occasion in January 2016, and two shoplifting offences took place in early and mid-2016. The other convictions related to breaches of court orders.
48. I take into account the fact that a period of time after the commission of the last offence was spent in prison, albeit, on my finding, at most 10 months. It is also the case that the appellant knew he was subject to deportation proceedings by the respondent and this can be said to act as an incentive not to re-offend (I address this point in more detail, below).
49. In respect of the appellant’s clean record whilst in France since July 2017, I cannot see why this period of non-offending should be in some way disregarded or of only minimal relevance (in fairness to Mr Tufan, he did not make any specific submission to that effect). The appellant had returned to France after having lived in the United Kingdom for approximately 8 years. His return was in difficult circumstances and his future was in no way secure, at least economically. Initially, he still wished to pursue a career in football and he wanted to be able to financially contribute to his children’s lives in the United Kingdom. It could have been the case that he did decide to re-offend in order to obtain goods and/or money. Yet he did not. I regard the period of non-offending whilst in France as a relevant consideration deserving of material weight.
50. Having weighed up all relevant considerations, I conclude that the appellant is no longer a “persistent offender” within the meaning of paragraph 3 of schedule 1 to the Regulations. Thus, the respondent cannot rely on this particular status when seeking to demonstrate that the appellant is a threat to the fundamental interests of society.
51. Returning to the issue of the length of sentences, the highest single sentence was 30 months for the burglary and theft committed in January 2015. That is clearly not insignificant. Nor is it very lengthy. I bear in mind that a separate concurrent 12 month sentence was imposed for the other offence of burglary and theft committed in March 2015. That sentence was not, it appears, lengthy, given all the circumstances set out in the evidence before me. The remaining custodial sentences were all short in nature. Overall, the length of the sentences imposed are clearly relevant to the issue of threat, but in my judgment they do not represent a particularly significant factor weighing in the respondent’s favour.
52. The number of convictions accrued by the appellant within a relatively short period of time is clearly adverse to him. All but one of the active offences (as I have previously described them) were for personal gain. The burglary and theft offences were plainly more serious than, for example, the shoplifting. It is of some note, though, that the burglaries were of non-dwelling premises: if that were not the case, sentences may well have been more substantial and I would regard them as being very much more serious.
53. I have taken account of the Sentencing Remarks, dated 2 September 2016. They contain little by way of detail. The judge took the view that the burglary and theft offences were very similar by way of modus operandi to the 2014 offence of stealing from an employer. With respect, I cannot quite see from the evidence before me why the burglary and thefts from non-dwelling premises were very similar to the appellant’s theft from his employer when working in the retail industry in 2014. Nonetheless, the offending as a whole discloses a past pattern of theft and that is clearly relevant to the assessment of whether there is a current threat posed by the appellant.
54. I place weight on the fact that the appellant had repeatedly breached court orders. That in itself indicated a disregard for the law. I regard this as a relatively significant consideration.

Schedule 1: reform and rehabilitation
55. The fact that the appellant has not acquired permanent residence in United Kingdom does not preclude the issue of reform and rehabilitation as constituting a relevant consideration.
56. Paragraph 5 of schedule 1 to the Regulations refers to “substantive evidence of not demonstrating a threat (for example, through demonstrating that the EEA national… Has successfully reformed or rehabilitated)…” I am not entirely clear what “substantive evidence” entails and have received no submissions on this from the respondent. As an aside, it is somewhat difficult to see how a factor which requires the individual to demonstrate a particular matter fits in with the to prove her case against that individual.
57. On the evidence before me, I conclude that the appellant has indeed been able to demonstrate, by substantive evidence, that he has reformed and rehabilitated himself over the course of time. My reasons for this are as follows.
58. The OASys report was completed on 19 October 2016, after the appellant was sentenced for his last offence. There is no sound reason to believe that this last offence was not taken into account when that report was completed.
59. Contrary to the assertion in the 2017 decision letter, the report does not state that the appellant posed a “high risk” of serious harm to the public. In fact, no such assessment is to be found in the document. On the contrary, at F13 of the respondent’s bundle it is said that “[the appellant’s] offending actions are not indicative of serious harm.” At F22, there is an observation that the offending “does not indicate that [the appellant] has troubles managing his temper.” The only offence of violence for which the appellant has been convicted was common assault against a security guard at a supermarket from which the appellant had stolen groceries. I do not regard that offence as constituting a medium or high risk of serious harm to the public in general, whether then or now. The same applies to the other offences for which the appellant has been convicted. I find that the appellant represents, at most, a low risk of serious harm to the public.
60. The OASys report assessed the probability of re-offending as “high”, with a “medium” risk of non-violent re-offending and a “low” risk of violent re-offending: F36. Given the proximity of the assessment to the appellant’s last conviction in September of that same year, it is perhaps unsurprising that he was placed in the “high” category. I have not been provided with any professional risk assessment subsequent to the OASys report and I bear that in mind. I have taken the OASys report as a starting point for my assessment of risk.
61. I do have the certificate from the French authorities confirming a clean record in that country. I have already found that the appellant is not now a “persistent offender”. In addition, and significantly, I have the evidence of Ms Y which, taken alone or when combined with the (albeit untested) written evidence of the appellant, provides substantial support for the latter’s assertion that he is no longer presents a risk of re-offending. As set out in paragraph 36, above, there is strong, credible evidence in the form of Ms Y’s testimony to show that the appellant has moved on from the circumstances which prevailed during most, if not all, of the period of his offending between 2014 and 2016. He is now more focused on the best interests of his children. He has set aside his ambitions to be a professional footballer and all the uncertainties which attached to that whilst he was in the United Kingdom. He has sought and obtained stable employment and, through his current course, is seeking to further improve his overall prospects. Importantly, he has fully appreciated the consequences of what his past offending have been in respect of Ms Y and the children. Amongst these has been the separation of young children from their mother, and prior to that, their separation from him. In my judgment, the appellant is now a substantially different individual from when he committed the offences over the course of two and half years between 2014 and 2016.
62. I take account again of the period spent in prison after the last conviction and the fact of deportation proceedings hanging over the appellant after his release. In respect of the former, the period of incarceration was not substantial and there has been now a full 5 years of non-offending since his removal to France. As to the second point, it is not an irrelevant consideration, but in my view carries relatively little weight. By definition, an individual pursuing an appeal against a deportation decision will have lived under the cloud of uncertainty up until the point at which a tribunal makes its decision. Mr Tufan made no specific submission on this point, but in any event it cannot operate in such a way as to automatically negate any claimed rehabilitation by any individual.
63. I have taken into account the fact that the appellant was in employment when he committed at least some of his offences. That might be said to cast doubt on the prospects of him abstaining from offending even if he was working in the United Kingdom in the future. I have placed this consideration into my overall assessment, but when placed in the context of the other material changes to the appellant’s current state of mind and perspective on life, as discussed previously, it does not add significantly to the risk of re-offending and, in turn, the threat posed by him.
64. Having regard to all the relevant considerations discussed in this part of my decision, it is my evaluative judgment that the appellant currently represents a low risk of re-offending of any sort. I use the term “low” in a non-expert manner; in other words, I do not attribute percentage scores, as would occur in an OASys report. Rather, it represents an overall conclusion based on my findings on the evidence before me. It is predicated on what I regard as the reliable basis that the appellant would return to the United Kingdom and live with Ms Y and the three children, would be in no doubt as to what he had put them through previously and what any further offending would put them through once again, and would be in a strong position to obtain employment by virtue of the experience gained in France (an additional observation can be made about the significant difficulties faced by employers in this country in filling vacancies. However, I do not base my decision on that particular factor).

Schedule 1: abuse of rights or fraud
65. The consideration contained in paragraph 6 to schedule 1 to the Regulations does not apply to the facts of this case.

Schedule 1: the fundamental interests of society
66. I will address those fundamental interests of society contained within paragraph 7 of schedule 1 to the Regulations which have been specifically relied on by the respondent in this case. I am bound to consider the interests, but it is for the respondent to make out her case and in principle it is not for me to pick and choose which of them may assist her in so doing. Having said that, a belt and braces approach is sometimes called for and I have taken that course of action.
67. Paragraph 7(a) concerns the prevention of unlawful immigration and abuse of immigration laws. Although Mr Tufan referred to it, he could not explain how this applies to the facts of the present case. I cannot see that it does in any material way.
68. Paragraph 7(b) concerns the maintenance of public order. Again, it has not been explained to me how the appellant’s past conduct went to undermine or adversely affect public order as such. The only violent offence was the common assault perpetrated on an occasion when he was caught shoplifting in March 2016. This factor carries little weight.
69. Paragraph 7(c) is the prevention of social harm. The appellant’s offending related in the main to theft from businesses and breaches of court orders. It may potentially be open to argument as to whether such offences have an impact on wider society, although the respondent has failed to adequately explain to me why this is so in the appellant’s case. There is no question of, for example, drugs-related crime, public disorder, hate crimes, or gang-related conduct in this case. I have already found that the appellant poses, at most, a low risk of serious harm to the public. This consideration is little to the respondent’s case.
70. Paragraph 7(d), which relates to the evasion of taxes and duties, has no application.
71. Paragraph 7(e) refers to the protection of public services. Again, this has no application.
72. Paragraph 7(f) is of greater significance. The appellant has accrued a number of convictions and these have been considered in detail, above. This particular factor also relates to the maintenance of public confidence in the ability of the respondent to take action against EEA nationals who have been convicted in the United Kingdom. In the absence of strong countervailing factors such as lengthy and unexplained delays by the respondent in taking action, the appellant’s removal (and continuing exclusion) was and is supportive of the public interest. It clearly counts in her favour and I attach considerable weight to it.
73. As an observation, the appellant was of course removed in 2017, pending the outcome of this appeal. In a way, this itself demonstrated the ability of the respondent to take action against offenders. The appellant has been excluded from the United Kingdom for a period of 5 years whilst pursuing his appeal.
74. Paragraph 7(g) was not specifically relied on by Mr Tufan, but I will address for the sake of completeness. There is of course a public interest in tackling offences likely to cause wider societal harm and this is so whether or not an immediate or direct victim can be identified. The examples stated in paragraph 7(g) are offences related to the misuse of drugs or crimes with a cross-border dimension. Neither of these apply to the appellant. However, I take account of the possible impact that theft from businesses might have on society as a whole. This factor is of limited significance.
75. Paragraph 7(h) relates to combating the effects of persistent offending. Whilst I have agreed with the respondent that the appellant had been a “persistent offender”, I have found that he no longer holds that status. The assessment of threat relates to the situation now, albeit that the appellant’s past conduct is of course relevant. I take this factor into account as representing limited assistance to the respondent’s case.
76. Paragraph 7(i) is immaterial.
77. In respect of paragraph 7(j), the public interest in being protected from offenders is a relevant consideration, albeit to a limited extent. The appellant’s offending history includes a single conviction for common assault. He represents a low risk of causing serious harm to the public.
78. Paragraph 7(k) is, if anything, favourable to the appellant. In my judgment, the best interests of the children rest very firmly in being reunited with both parents and being able to live as a family unit in the United Kingdom. Indeed, in her 2018 supplementary reasons for refusal letter, the respondent accepted that it would be “unduly harsh” for the children (and Ms Y) to go and live in France. The children are British and were not removed to France in 2020 out of a simple “choice” made by Ms Y only in order to further her career. The fact that the move was undertaken does not of itself negate the undue harshness of the relocation.
79. Paragraph 7(l) clearly has no application.

Regulation 27(5)(c): the threat posed by the appellant
80. I bring together the analysis of all the considerations under schedule 1 to the Regulations set out above and conclude that the respondent has failed to show that the appellant’s personal conduct represents a genuine, present and sufficiently serious threat affecting the various fundamental interests of society.
81. There is of course the possibility that the appellant represents a threat: re-offending cannot be ruled out and his record quite rightly gave rise to real concerns on the respondent’s part. In my judgment, such a threat is improbable, not present, and is not in any event sufficiently serious, applying the lowest level of protection under the Regulations.
82. On this basis, the appellant succeeds in his appeal under the Regulations.

Proportionality
83. If I were wrong to have concluded that the appellant does not represent a genuine, present and sufficiently serious threat to the fundamental interests of society, it would be necessary to go on and consider proportionality.
84. I take into consideration my findings of fact on the evidence and the analysis set out under schedule 1 to the Regulations, save for the ultimate conclusion on the existence of a threat.
85. In summary, the following factors weigh in the appellant’s favour:
(a) His partner and three children are all British;

(b) It is strongly in the children’s best interests to reside with both parents and in the United Kingdom;

(c) The respondent has expressly accepted that it would be unduly harsh for Ms Y and the three children to reside in France. The fact that the three children currently reside there does not negate that position;

(d) Two of the three children are unhappy in France and their education is suffering;

(e) The children are currently separated from their mother. Prior to this, they were separated from their father;

(f) Ms Y suffers from health conditions which make it more difficult to parent three children alone and she does not have other support networks in this country;

(g) The appellant has committed no offences since March 2015 and is no longer a “persistent offender”;

(h) He represents a low risk of re-offending and, at most, a low risk of serious harm to the public;

(i) The appellant speaks fluent English and is extremely likely to be financially independent in the United Kingdom;
86. Against this, the respondent is able to rely on the following essential points (having regard also to my previous analysis of the schedule 1 factors):
(a) The appellant represents a threat to the fundamental interests of society ;
(b) The appellant was a “persistent offender”;

(c) There is a public interest in deporting EEA nationals who commit crimes and this includes maintaining confidence in the ability of the authorities to take appropriate action;

(d) The appellant has shown disregard for the law by breaching several court orders. Theft from businesses is not a “victimless crime”;

(e) Prior to his deportation, the appellant had not spent a particularly lengthy period of time in United Kingdom;
87. By a relatively narrow margin, I would conclude that the respondent’s decision was disproportionate. The cumulative weight of those factors on the appellant’s side of the scales tip the balance in his favour. I place particular weight on the best interests of the three children who have found themselves in an extremely difficult position. They were deprived of their father in July 2017, then reunited with him in 2020, but at the same time separated from their mother. They have had to endure a good deal in their young lives thus far.
88. The appellant therefore succeeds on this alternative basis.

Conclusions on Article 8
89. It might be thought unnecessary for me to address the Article 8 claim, given my conclusions under the Regulations. However, this does constitute a ground of appeal under the 2002 Act and it is appropriate to consider it, albeit relatively briefly.
90. There is plainly family life between the appellant, Ms Y, and the three children. The respondent’s decision was, and continues to be, a significant interference with that family life.
91. The respondent’s decision was in accordance with the law and it pursues a legitimate aim.
92. The children’s best interests rest very firmly indeed with being with both parents and residing in the United Kingdom. This is the country of their nationality and their lived experience up until 2020. As discussed earlier in my decision, two of the three children are unhappy in France and their well-being is being undermined by the current state of affairs.
93. The respondent has accepted in terms that it would be unduly harsh for Ms Y and the children to reside in France. That position was not expressly resiled from by Mr Tufan. As I have previously stated, the fact that the three children went to France and now reside there is not of itself an acknowledgement that it is not unduly harsh on them. It is a state of affairs brought about by a combination of factors which I have addressed.
94. For the sake of completeness, I would in any event conclude that it was unduly harsh on, at least, the children. In addition to the fact of their nationality and everything that goes with that, the two older children are unhappy and struggling at school. The eldest is about to enter the secondary school stage of his education: he wants to be in United Kingdom for this and to be reunited with his friends here. His younger brother is a cause for credible concern, as stated in Ms Y’s evidence. Taking a child-focused approach to the question of undue harshness, the appropriate threshold is met on the particular facts of this case.
95. I conclude that it would also be unduly harsh on the three children, in particular the two boys, to be separated once again from the appellant. They experienced this between July 2017 and 2020 and I have accepted Ms Y’s evidence as to their reaction to this. The children were reunited with their father in 2020 - and at the same time were separated from their mother - and, notwithstanding the unhappiness of the two boys about living in France, the credible evidence is that they love their father and want to be with him. Another separation from him would, in my judgment, constitute a significant cause for distress which, taking into account the family history and strong best interests of the children as a whole, would go beyond harshness. Again, on a child-focused approach, the relevant threshold is met.
96. Therefore, Exception 2 under section 117C(5) of the 2002 Act is satisfied and the appellant succeeds on that ground.
97. The appellant clearly cannot satisfy Exception 1 under section 117C(4) of the 2002 Act.
98. In light of the above, I do not deem it necessary to go on and consider the very compelling circumstances test under section 117C(6) of the 2002 Act.

Anonymity

99. An anonymity direction has been in place throughout these proceedings. The respondent has not suggested that it should be removed at this stage. Having regard to the importance of open justice, I maintain the direction. This is not solely due to the involvement of minor children in the appeal, but also Ms Y’s particular health problems.


Notice of Decision

100. The making of the decision of the First-tier Tribunal did involve the making of an error on a point of law and that decision has been set aside.

101. I re-make the decision by allowing the appeal under the Immigration (European Economic Area) Regulations 2016 and on Article 8 ECHR grounds.


Signed: H Norton-Taylor Date: 13 July 2022

Upper Tribunal Judge Norton-Taylor



TO THE RESPONDENT
FEE AWARD
No fee is paid or payable and therefore there can be no fee award.


Signed: H Norton-Taylor Date: 13 July 2022

Upper Tribunal Judge Norton-Taylor



ANNEX: ERROR OF LAW DECISION

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: DA/00140/2017(V)


THE IMMIGRATION ACTS


Heard at Field House (by remote video means)
Decision & Reasons Promulgated
On 19th July 2021


…………………………………


Before

UPPER TRIBUNAL JUDGE JACKSON


Between

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Appellant
And

YN
(ANONYMITY DIRECTION MADe)
Respondent


Representation:
For the Appellant: Ms J Isherwood, Senior Home Office Presenting Officer
For the Respondent: Ms Sonia Ferguson of Counsel, instructed on a direct access basis


DECISION AND REASONS
1. This has been a remote hearing which has not been objected to by the parties. The form of remote hearing was by video, using Teams. There were no audio or visual difficulties during the course of the hearing. A face to face hearing was not held to take precautions against the spread of Covid-19 and as all issues could be determined by remote means. The file contained the papers primarily in hard copy, with some electronic copies available as well.
2. The Secretary of State appeals with permission against the decision of First-tier Tribunal Judge Samimi promulgated on 28 February 2020 in which YN’s appeal against the decision to deport him under the Immigration (European Economic Area) Regulations 2016 (the “EEA Regulations”) and to refuse his human rights claim dated 20 February 2017 (with a supplementary letter dated 23 April 2018) was allowed. For ease I continue to refer to the parties as they were before the First-tier Tribunal, with YN as the Appellant and the Secretary of State as the Respondent.
3. The Appellant is a national of France, born on 7 August 1991, who claims to have arrived in the United Kingdom in 2009. On 21 September 2016, the Respondent notified the Appellant that she intended to make a deportation order against him on the grounds of public policy in accordance with regulation 19(3)(b) and regulation 21 of the EEA Regulations. This was on the basis of the Appellant’s criminal history which included the following convictions.
4. On 20 May 2014, he was convicted of theft by an employee and sentenced to a Community Order, later varied due to failure to comply with the requirements of it, to a 16 week prison sentence suspended for two years.
5. On 17 March 2016, the Appellant was convicted of destroying or damaging property, possessing a controlled article for use in fraud, common assault and commission of a further offence during an operational period of suspended sentence. He was sentenced to 10 weeks in prison and ordered to pay compensation.
6. On 16 June 2016, the Appellant was convicted of theft, namely shoplifting and was given a Community Order and a three-month curfew.
7. On 30 July 2016, the Appellant was convicted of theft, namely shoplifting for which he was fined and ordered to pay a victim surcharge.
8. On 2 September 2016, the Appellant was convicted of two counts of burglary and theft, together with commission of a further offence during an operational period of suspended sentence. He was sentenced to two years and nine months imprisonment and ordered to pay a victim surcharge.
9. The Respondent did not accept that the Appellant had acquired permanent residence in the United Kingdom due to the lack of evidence of him exercising treaty rights for a continuous period of five years and therefore he could be deported on public policy grounds. The Respondent noted the extent of the criminal offending over a relatively short period and the assessment in the OASys report that the Appellant posed a high risk of harm and a high risk of reoffending, with the conclusion that he posed a genuine, present and sufficiently serious threat to the public. The Appellant would be able to pursue rehabilitation for his criminal offending on return to France. The Respondent acknowledged that the Appellant had a partner and three children in the United Kingdom, all of whom were British citizens, however it was not accepted that there was a genuine and subsisting relationship between any of them due to the lack of evidence of the same. Overall the Appellant’s deportation to France was considered to be proportionate and in the alternative he did not meet any of the exceptions to deportation in paragraph 398 and following of the Immigration Rules on human rights grounds. Finally, the Appellant’s appeal was certified under regulation 33 of the EEA Regulations and he was deported on 21 July 2017.
10. Further to the notice of appeal and additional evidence, the Respondent issued a supplementary decision letter on 23 April 2018. In that letter the Respondent maintained that the Appellant had not acquired permanent residence in the United Kingdom. It was accepted that the Appellant had established a genuine family relationship with his partner and three children and further accepted that it will be unduly harsh for them to relocate to France with the Appellant. However it was not considered to be unduly harsh for any of the family members to remain in the United Kingdom without the Appellant. The deportation was maintained in addition for the reasons already set out in the initial decision.
11. The Appellant’s appeal originally came before the First-tier Tribunal in 2018, but the initial decision was set aside for a material error of law by the Upper Tribunal, with the appeal being remitted to the First-tier Tribunal for a de novo hearing. It is that decision of First-tier Tribunal Judge Samimi promulgated on 28th of February 2020 that is the subject of this appeal.
12. Judge Samimi allowed the appeal, albeit the decision does not expressly state whether the appeal was allowed under the EEA Regulations, on human rights grounds, or for both reasons (although it appears to be on all grounds). In summary, it was found that the Appellant had not established permanent residence in the United Kingdom as he had not continuously exercised treaty rights here for a period of five years. The Judge found that the Appellant had not offended since 2016; he had obtained employment in France; was financially supporting his family in the United Kingdom and that therefore his deportation was not justified on policy grounds based on his continued separation from his family and the adverse impact of this on his children. The Appellant was not found to be a present, genuine and sufficiently serious threat to the public. It was also found on the totality of evidence, that the Appellant’s deportation would be a disproportionate interference with his right to respect for private and family life. I return below to the reasons for these findings.
The appeal
13. The Respondent appeals on the basis that the First-tier Tribunal materially erred in law, by misdirecting itself and by failing to give adequate reasons for the conclusions and findings reached. In particular, that there was a failure to give adequate reasons for finding that the Appellant was not a present, genuine and sufficiently serious threat given the evidence contained in the OASys report; a failure to properly consider or give sufficient weight to the public interest in deportation; an error in giving too much weight to a relatively short period without reoffending (which was in France and during the course of this appeal against deportation); a failure to consider that there was no evidence that the Appellant had addressed his offending behaviour; a failure to take into account that the Appellant’s family life and employment did not prevent his previous convictions; by treating the best interests of the children as determinative of the proportionality of deportation; failing to consider that the Appellant was able to pursue rehabilitation in France; and that the First-tier Tribunal did not given adequate consideration to paragraphs 7(g) and (h) in Schedule 1 to the EEA Regulations.
14. Prior to the hearing, written submissions were made on behalf of both parties in accordance with directions given by the Upper Tribunal. The Respondent made written submissions on 1 July 2020, to which the Appellant replied on 9 July 2020. Consolidated written submissions were submitted by the Respondent on 14 July 2020.
15. In written submissions on behalf of the Appellant, it was not accepted that the Appellant has ever been assessed as posing a high or serious risk of harm as asserted by the Respondent and to the contrary, the OASys report stated that his offending actions were not indicative of serious harm and that there was a low OVP probability of violent reoffending and no data on the likelihood of serious harm. The Tribunal was right to consider the lack of risk of serious harm in this evidence.
16. In relation to the risk of reoffending, it was submitted that the First-tier Tribunal was entitled to take into account as against the high risk of reoffending within two years as assessed in the OASys report, that the Appellant had not in fact reoffended over a longer period of over four years. The First-tier Tribunal was also entitled to take into account the witness evidence before it as to the risk of reoffending and overall, adequate reasons were given for the findings made. Further, there is no relevant deterrent effect to be taken into account by the First-tier Tribunal in accordance with the EEA Regulations.
17. Finally, the First-tier Tribunal was entitled to attach weight to the Appellant’s family members in the United Kingdom and the best interests of his three British children and it was not a material misdirection to do so. Sufficient and adequate reasons were given for the overall conclusion that deportation was not justified or proportionate.
18. In the consolidated written submissions dated 14 July 2020, the Respondent submitted as follows. In relation to whether the Appellant represented a genuine, present and sufficiently serious risk to one of the fundamental interests of society, it was submitted that the First-tier Tribunal misunderstood the evidence in the OASys report, in which it was assessed that the Appellant represented a high risk of reoffending, without taking into account the convictions for burglary, offences which indicated a greater harm and higher culpability than in the earlier offending, were not taken into account in the report. Although accepted that the First-tier Tribunal refers to the OASys report expressly in the decision, the evidence was not fully weighed when assessing the risk posed.
19. In addition, the First-tier Tribunal relied heavily on the lack of reoffending since 2016, without any express consideration of the circumstances in that period, including that the Appellant was in custody for part of it and had been living in France and in wholly different circumstances. The OASys report highlighted factors contributing to the risk of reoffending, not limited to financial pressures but also in relation to recklessness and risk-taking, as well as thinking and behaviour; none of which were considered by the First-tier Tribunal, nor was the lack of any evidence of rehabilitative action on the latter points.
20. The Respondent also notes that there was a failure by the First-tier Tribunal to consider that the Appellant’s previous offending was at a time when he was employed and with family in the United Kingdom, neither of which prevented the offending. There was also a failure to consider that rehabilitation can be continued in France.
21. In giving significant weight to the lack of reoffending, the Respondent submits that the First-tier Tribunal erred in giving insufficient weight to the public interest, including a failure to consider the deterrent effect as part of the consideration of deportation of foreign criminals which is considered to be in the public interest. There was no express consideration of, in particular, paragraph 7(g) and (h) of Schedule 1 to the EEA Regulations in relation to public confidence and protecting the public (albeit this appears to be a reference to the matters in paragraph 7 (f) and (j) rather than (g) and (h)). There was also inadequate consideration of paragraphs 2 to 4 of the Schedule about the Appellant’s integrative links to the United Kingdom, or lack thereof.
22. Overall, the Respondent submits that the failure to have regard to all of these matters taints the assessment of proportionality in the decision.
23. At the oral hearing, on behalf of the Respondent, Ms Isherwood relied upon the decision letters, grounds of appeal and written submissions. She submitted that this was a case where the First-Tier Tribunal has simply not taken into account relevant facts and had given inadequate consideration to the public interest in deportation. Although there was some references to relevant considerations, there is nothing to suggest that these were in substance taken into account, such as the factors in Schedule 1 to the EEA Regulations.
24. Ms Isherwood highlighted the lack of any rounded assessment of proportionality in paragraphs 20 and 21 of the decision which focus on limited aspects of the evidence without any wider consideration or the weight to be given to the evidence.
25. On behalf of the Appellant, Ms Ferguson repeatedly referred to the Appellant’s deportation in 2017 and the best interests of his children being affected by the continued separation, specifically in the context of the certification of the Appellant’s appeal rights. This was however an error of law hearing to which those matters have no direct relevance. On the actual substance of the appeal, it was submitted that any errors would not be material because the decision reached by the First-tier Tribunal was clearly one that was properly open to it to allow the appeal and on the evidence, the decision to deport was clearly disproportionate. Ms Ferguson emphasised that there has been no reoffending now for four years, which is not a short period of time and exceeds the risk of reoffending within two years identified in the OASys report. It was right for the First-tier Tribunal to give that significant weight, together with the evidence about the Appellant’s family life and significant length of residence in the United Kingdom.
Findings and reasons
26. For the reasons set out below, the First-tier Tribunal materially erred in law in its application of the EEA Regulations and assessment of evidence when allowing this appeal. The decision is not clearly structured appearing to reach a final conclusion before assessing or making findings on the first key issue of whether the Appellant is a present, genuine and sufficiently serious threat to one of the fundamental interests of society and then secondly going on to assess proportionality. The decision significantly lacks detailed consideration of key evidence and the factors which must be considered in accordance with the EEA Regulations themselves.
27. In paragraph 12 of the decision, there is a statement that regard has been had to ‘Schedule 1 Article 7 of the EEA Regulations’ followed by a quotation of subparagraphs (g) and (h). There is no express reference to any of the other parts of the Schedule (including those self-evidently relevant in this case) nor any explanation of what regard has been had to these factors; nor is there anything to suggest that they have in fact been taken into account in the reasoning of the decision that follows.
28. The only findings and reasons given in relation to the EEA aspect of the decision (not including the more detailed paragraphs as to whether the Applicant had acquired permanent residence) is contained in paragraphs 18, 20 and 21 of the decision. Paragraph 18 is as follows:
“18. I have considerable regard to the Appellant’s convictions for 11 offences between 2014 -2016, together with the OASys report that provided the Appellant’s risk of harm to public as high. However, I attach greater weight to the fact that there is no evidence of the Appellant having committed further offences since 2016. To the contrary the Appellant has described how he has sought employment in France, and sending his family funds which has supported his partner and three children financially as well as having made efforts at pursuing his football career in regards to which he has been making great progress. The Appellant’s oral evidence in this regard, which was supported, by his partner’s oral evidence confirming his financial support of the family has not been challenged before me. Having had regard to the totality of the evidence before me, I do not find that the Appellant’s continued separation from his family, and deportation is justified on grounds of public policy, security or public health in accordance with regulation 27 of the EEA Regulations 2016.”
29. This paragraph appears to dismiss the appeal on the basis that deportation is not justified, by reference to the lack of reoffending, financial support for the family and effect of separation from them without any step-by-step assessment, or comprehensive assessment of the relevant factors to be taken into account, including in particular those expressly set out in the EEA Regulations in Schedule 1. Only after this paragraph does the decision go on to assess some but by no means all aspects of this, but seemingly after the final decision had already been made.
30. Although the First-tier Tribunal expressly references the OASys report and assessment therein of the Appellant posing a high risk to the public, there is no express identification of the risk factors contained therein for further offending or limitations in that assessment when attaching considerable weight to the report. In particular, the assessment was without any reference to the most serious burglary convictions the Appellant received. There is no consideration of any evidence or lack of evidence to counter those risk factors.
31. The First-tier Tribunal attaches significant weight to the lack of further offending since 2016, but without any reference to the fact that for part of this period the Appellant was in prison and the remainder he was living in a different country, with different financial circumstances to what he had in the United Kingdom and without any consideration of the fact that he was in the process of appealing against his deportation, a factor commonly accepted to be an incentive against reoffending at least in the short term. It is also difficult to see the relevance of the evidence that the Appellant is financially supporting his family to any risk of future offending. Similarly, the Appellant was in employment at the time of previous convictions in the United Kingdom, such that it is also difficult to understand why the fact that he has sought and obtained employment in France since 2017 is a reasoned basis for accepting a low risk of reoffending future.
32. Overall, the limited consideration of the evidence and balancing of the same set out in paragraph 18 of the decision is an error of law. Whilst it is trite that the First-tier Tribunal does not need to refer to each and every piece of evidence in the decision, in this case, there was simply a failure to take into account all the relevant matters when assessing whether the Appellant posed a present, genuine and sufficiently serious threat to one of the fundamental interests of the United Kingdom. The conclusion at the end of paragraph 18 is not even on this key issue, but is only a general conclusion that deportation is not justified. It is only later in the decision in a paragraph stated to be an assessment of proportionality that there is an express conclusion about the issue, which is wholly detached from the paragraph apparently dealing with the reasons for it. It is not possible to infer from the decision even read as a whole that the First-tier Tribunal has taken into account all relevant factors and evidence before it before reaching a conclusion on the risk posed; which also taints the proportionality assessment which follows.
33. In paragraph 19, the First-tier Tribunal sets out the burden of proof and requirements of regulation 27 of the EEA Regulations with findings on proportionality in paragraphs 20 and 21.
34. In paragraph 20, the First-tier Tribunal finds on the totality of the evidence that the decision to deport does not comply with the principles of proportionality, “due to the fact that the Appellant’s immediate family, in particular his three children have been adversely affected by the separation from him.”, with reference to the evidence and the finding that the eldest child’s well-being and engagement has been severely affected following the Appellant’s absence.
35. In paragraph 21, the First-tier Tribunal further considered the issue of proportionality and the Appellant’s own conduct, finding he has used his best endeavours to work and make financial contributions to his family, with evidence that the Appellant has learned a harsh lesson in prison and made efforts to show there is no risk of reoffending. The adverse effect on the children is referred to again and considerable weight is attached to these factors in concluding that the evidence does not support a conclusion that the Appellant represents a genuine, present and sufficiently serious risk affecting one of the fundamental interests of society taking into account his past conduct. There is a further reference to a lack of reoffending since 2016 that the Respondent has not satisfied the burden of proof as to risk.
36. These paragraphs fail to show that the First-tier Tribunal has made any detailed or balanced consideration of the relevant factors for assessing proportionality. The findings are tainted by the earlier errors in the assessment of the future risk posed by the Appellant; fail to consider that the Appellant had also sought and been in employment at the time of previous offending and there was only limited identification of the adverse impact on the family. It may well be that a decision to deport could be disproportionate because of the adverse impact on family members; but it is impossible to discern from this decision why such a conclusion was reached on the facts of this case. The assessment of proportionality also contains a material error of law for these reasons.
37. Separately, although not entirely clear or express within the decision, it appears the appeal is also allowed on human rights grounds in paragraph 22 which refers to deportation being a disproportionate interference with the Appellant’s family and private life having regard to all of the evidence and in particular the adverse children, the Appellant’s length of residence in the United Kingdom, the presence of his immediate family in the United Kingdom and the absence of continued offending. Although the focus of the Respondent’s submissions were on the assessment for the purposes of the EEA Regulations, this point is raised and in any event I consider this paragraph contains Robinson obvious errors of law.
38. The decision contains no reference at all to the relevant Immigration Rules for the purposes of a human rights assessment in the context of deportation contained in paragraphs 398 and following, which include specific exceptions to deportation and ultimately whether there are very compelling circumstances to outweigh the interest in deportation. These are factors which are necessarily and self-evidently relevant to any assessment of the appeal on human rights grounds and which further to section 117A-D of the Nationality, Immigration and Asylum Act 2002 a Tribunal is required to take into account. The First-tier Tribunal has simply failed to have any regard to these matters or take them into account at all. This final conclusion on proportionality for the purposes of Article 8 of the European Convention on Human Rights also fails to undertake any kind of balancing exercise at all given that there is no reference to the public interest which has to be weighed against the Appellant’s private and family life.
39. The findings and conclusion in paragraph 22 contain significant errors of law which are material given the findings above in relation to the EEA Regulations and must therefore also be set aside.
40. There has been no challenge by the Appellant to the finding that he had not acquired permanent residence in the United Kingdom and as such, that finding is preserved. All other matters are to be considered de novo at a further hearing before the Upper Tribunal.

Notice of Decision
The making of the decision of the First-tier Tribunal did involve the making of a material error of law. As such it is necessary to set aside the decision.
I set aside the decision of the First-tier Tribunal.

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.

Listing Directions
(i) The appeal to be listed for a hearing before any UTJ on the first available date after 1 September, with a time estimate of 2.5 hours. No interpreter is required.
(ii) Any further evidence the Appellant wishes to rely on is to be filed and served no later than 14 days prior to the relisted hearing. A written statement or updated written statement is required for any persons attending to give oral evidence to stand as their evidence in chief.
(iii) Any further evidence the Respondent wishes to rely on is to be filed and served no later than 14 days prior to the relisted hearing.
(iv) The parties are at liberty to file a skeleton argument, no later than 7 days prior to the relisted hearing.

The form of the hearing is to be determined following representations made by the parties in accordance with consideration of the following issues and directions.
This is an appeal which has been ongoing since 2017 due to a procedural history involving the first decision being set aside for error of law and re-hearing and also initial difficulties with the Appellant being able to re-enter the United Kingdom and be produced to attend his own appeal hearing. In circumstances where the Appellant was deported in 2017 and his three children remain in the United Kingdom; this is a lengthy delay to final determination of his appeal and it is in the interests of justice for the re-making of this appeal to take place as quickly as possible.
The Appellant may apply to return to the United Kingdom to attend his appeal in accordance with regulation 41 of the EEA Regulations, as he has successfully done in the past. Although that is his right to do so, I am conscious that there may be practical difficulties or at least delays in doing so given the current restrictions on travel between the United Kingdom and France pursuant to Covid-19, and/or self-isolation requirements; the precise nature of which changes regularly and can change at relatively short notice, which may affect the listing of the further hearing.
In the alternative, it may be possible for the Appellant to waive his right to apply to re-enter the United Kingdom to attend his appeal and instead for him to give his evidence remotely by video link (with either a hybrid or fully remote video hearing). There are however also practical considerations as to whether this is possible, particularly bearing in mind the parts of the decision in Nare (evidence by electronic means) Zimbabwe [2011] UKUT 00443 (IAC) about evidence to be given remotely from outside of the United Kingdom. Matters in relation to remote hearings and evidence more generally have of course moved on considerably since that case particularly with specific arrangements in place for remote video hearings due to Covid-19 restrictions which are currently common place.
The Upper Tribunal is provisionally of the view that a hybrid or remote video hearing may be the most efficient means of listing for the re-making of his appeal to avoid further delay and uncertainty due to the practicalities and potential difficulties of travel; but the parties are invited to make written representations on the preferred format of hearing and any related concerns or practicalities of either a face to face, hybrid or fully remote video hearing within 14 days of the date on which these directions are issued.
A notice of hearing will follow in due course.
Documents and submissions filed in response to these directions may be sent by, or attached to, an email to [email] using the Tribunal’s reference number (found at the top of these directions) as the subject line. Attachments must not exceed 15 MB. This address is not generally available for the filing of documents. Service on the Secretary of State may be to [email] and to the original Appellant, in the absence of any contrary instruction, by use of any address apparent from the service of these directions.

Signed G Jackson
Date 22nd July 2021

Upper Tribunal Judge Jackson