Tribunal decisions

The decision

IAC-FH-NL-V1

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: DA/00154/2016

THE IMMIGRATION ACTS

Heard at Field House
Decision & Reasons Promulgated
Oral determination given following hearing

On 9 February 2017
On 13 March 2017

Before

UPPER TRIBUNAL JUDGE CRAIG

Between

ahmed salih
(ANONYMITY DIRECTION NOT MADE)

Appellant
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT

Respondent

Representation:

For the Appellant: Mr F Junior Legal Representative, instructed by Lawland Solicitors
For the Respondent: Mr E Tufan, Home Office Presenting Officer

DECISION AND REASONS

1. The applicant in this case is a national of Sweden who arrived in the UK with his family sometime during 2006. It is not entirely clear when he arrived because as an EEA national he had freedom of movement within the EU and so his dates of entry are not recorded. On 10 January 2012 he made an application seeking a certificate for permanent residence in the UK on the basis that he had been exercising treaty rights in this country for five years but that application was refused the following month.
2. Regrettably he came to the attention of the authorities in this country when on 19 June 2014 he was convicted at Isleworth Crown Court of supplying a class A drug and also facilitating acquisition or possession of criminal property. Seven months later on 22 January 2015 the appellant was convicted at the Central London Magistrates’ Court of possession of cannabis, a class B drug, and was fined £100. Then the following month at the same court he was convicted of driving a vehicle while uninsured for which he was fined. The same year, on 2 December 2015, he was convicted at the Central Criminal Court of two offences of possession of cannabis with intent to supply and also possession of cannabis for which he was sentenced to a period of imprisonment of eight months. He was also on 11 January 2016 served with a notice of liability to deportation and in the absence of any response from him a deportation order against him was signed on 2 March 2016 and served on him the following day together with a certified decision to make a deportation order. The respondent certified the decision under Regulation 24AA of the Immigration (European Economic Area) Regulations 2006 the effect of which is that his removal would be lawful despite the appeals process not having been begun or not having been finally determined. The grounds on which a claim may be certified under Regulation 24AA(2) include (and this was the respondent’s reason for so certifying) that a person would not face a real risk of serious irreversible harm if removed to the country or territory to which it is proposed he would be removed. I should at this stage note that pursuant to Regulation 29AA of the 2006 Regulations there is a procedure whereby if a person has been so removed he may apply from outside the United Kingdom for permission to re-enter the United Kingdom in order to make submissions in person at his appeal hearing. I will refer below to Regulation 29AA.
3. The appellant appealed against this decision and his appeal was heard before First-tier Tribunal Judge Barrowclough, sitting at Columbus House, Newport on 8 November 2016 at which hearing the appellant (who had not by that stage been removed) was present and gave evidence as did his sister and his parents who were assisted by an Arabic interpreter. He was also represented at that hearing.
4. Following the hearing in a Decision and Reasons promulgated on 28 November 2016 the appellant’s appeal was dismissed. The appellant now appeals against that decision permission having been granted by First-tier Tribunal Judge Kimnell on 22 December 2016. In between the hearing before the First-tier Tribunal and after the grant of leave but before the hearing before the Upper Tribunal today, on 26 January 2017 the appellant was in fact removed to Sweden. As already noted above that removal was lawful as the claim had been certified under Regulation 24AA, the 2006 Regulations.
5. The basis upon which Judge Kimnell granted permission to appeal was set out in his reasons as follows:
“When reaching a decision the judge ignored the applicable Regulations, the Immigration (European Economic Area) Regulations 2006, which are set out in the decision at paragraph 4, but which feature nowhere in the findings”.
6. Before me, on behalf of the respondent, Mr Tufan very fairly and properly accepted that the judge had indeed failed to apply the applicable Regulations. It is quite clear from the determination that the judge looked at this appeal through the prism of non-EEA deportation. In particular, at paragraph 14 of his decision, the judge stated that:
“Pursuant to paragraph 398(c) of the Rules, the public interest in the deportation of the Appellant as a foreign criminal will only be outweighed by other factors in relation to the inevitable interference with the Appellant’s right to respect for his private and family life involved in any such deportation ‘where there are very compelling circumstances over and above those described in paragraphs 399 and 399A’.” (Paragraph 14)
At paragraph 15 of the decision the judge stated that “there simply are no such compelling circumstances in the Appellant’s case to outweigh the very considerable public interest in his deportation”.
7. There is simply no consideration at all of the factors to which the Tribunal was obliged to have regard as set out in the 2006 Regulations applicable to EEA nationals seeking to challenge a deportation order. In particular the judge was obliged to have regard to the matters set out within Regulation 21 which although mentioned at paragraph 4 of the decision were never considered. The judge needed to have specific regard to the individual factors and also needed to consider whether or not the appellant had, as he claimed, a permanent right of residence under Regulation 15 (on the basis that he had been exercising treaty rights in this country for a continuous period of five years) because if he did by Regulation 21(3) a deportation decision could only be taken “on serious [my emphasis] grounds of public policy or public security”. Whether or not the judge would still have reached the same conclusion is not the issue at the moment. What I have to decide is whether this error, as error it clearly was, was material and plainly it was (as Mr Tufan very fairly accepted at the outset) because it cannot be said that a judge approaching the decision, having considered the 2006 Regulations properly, would have been bound to have come to the same decision. It follows therefore that the decision of Judge Barrowclough must be set aside and re-made.
8. Both parties are agreed that the appropriate course is for the appeal to be remitted to the First-tier Tribunal and because the appellant’s family now live in London I have been asked to remit the appeal to Taylor House. In my judgment it is appropriate that I do so and so I will direct the appeal be remitted to the First-tier Tribunal sitting at Taylor House to be heard by any First-tier Judge other than Judge Barrowclough.
9. By Regulation 29AA it is provided that the appellant may apply from outside the UK for permission to re-enter the UK in order to make submissions in person at his appeal hearing provided he meets certain family conditions which on the face of it he meets. He did appeal within time against the notice of decision to make the order. He has been deported from this country pursuant to Regulation 19(3)(b) of the 2006 Regulations and, I have been told, he does wish to make submissions before the First-tier Tribunal in person (that is he wishes to give evidence as he did before). The other condition which has to be satisfied is that a date for his appeal has been set and so his application cannot be made until then but his representative has informed the Tribunal that it is intended that he will make such an application once he knows the date of hearing. Although the respondent is permitted to refuse permission if she considers that his presence “would cause serious troubles to public policy or public security” (as set out at paragraph 24 of the decision letter) on the facts as currently before this Tribunal it is unlikely that permission would be refused although obviously that is not a decision which is before me at this stage. Accordingly, I make the following decision:

Decision
The decision of the First-tier Tribunal Judge Barrowclough, dismissing the appellant’s appeal against the respondent’s decision to deport him, is set aside.
The appeal will now be remitted to the First-tier Tribunal sitting at Taylor House to be re-heard before any judge of the First-tier Tribunal, other than Judge Barrowclough, at the first available opportunity.

No anonymity direction is made.

Signed:

Upper Tribunal Judge Craig Dated: 9 March 2017