Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: DA/00163/2016

THE IMMIGRATION ACTS

Heard at: Manchester
On: 11th January 2017
Decision & Reasons Promulgated
On: 13th January 2017

Before

UPPER TRIBUNAL JUDGE BRUCE

Between

Secretary of State for the Home Department
Appellant
And

Andrez Mikalski
(No anonymity direction made)
Respondent

For the Appellant: Mr A. McVeety, Senior Home Office Presenting Officer
For the Respondent: -

DETERMINATION AND REASONS

1. The Respondent is a national of Poland born on the 26th February 1985. On the 7th September 2016 the First-tier Tribunal (Judge R Lloyd) allowed his appeal against the Secretary of State for the Home Department's decision to deport him from the United Kingdom under the terms of Regulations 19 and 21 of the Immigration (European Economic Area) Regulations 2006 ('the Regulations'). The Secretary of State now has permission to appeal against that decision1.

Background and Matters in Issue

2. The Respondent's date of entry into the United Kingdom is not known. He first came to the attention of the authorities in the United Kingdom on the 6th March 2014 when he was convicted of soliciting another for the purpose of obtaining their sexual services as a prostitute, and using threatening or abusive words and behaviour in a manner likely to cause harassment or alarm. On the 11th March 2015 he was convicted of two counts of shoplifting. It came to the Secretary of State's attention that prior to his arrival in the United Kingdom he had in Poland served at least some of a six and half year sentence for two counts of robbery. The Secretary of State decided to make a deportation order against the Respondent. It would appear that the Respondent never received the notification of that decision since it was returned to the Home Office unopened. The deportation order was made on the 7th July 2015.

3. The Respondent was apprehended by police on the 3rd December 2015. He was served with the deportation order. He made representations which resulted in a supplementary refusal letter. The Respondent launched a judicial review, which resulted in him being released on bail, in March 2016. The hearing of his appeal was listed on the 26th August 2016 and notices served on his last known address. The Respondent did not attend the hearing and it proceeded in his absence.

4. The matter in issue before the First-tier Tribunal was whether the Respondent should be deported, in light of the factors set out in the Regulations. The Tribunal found that since his robbery conviction the Respondent has not been sent back to prison, having received non-custodial sentences for the "minor" offences committed in the United Kingdom. It further found that he had not been convicted of any crime since the last shoplifting offence in October 2014. On the basis of these facts, the Tribunal was not satisfied that the deportation of the Respondent was justified on grounds of public policy or security. It was not satisfied that the Respondent presents a serious threat to the fundamental interests of society by his personal conduct. The Tribunal noted the Respondent's assertion that he has a partner and a child in the United Kingdom. It could not make any finding about whether he was exercising treaty rights since there was no evidence of this. Overall the Tribunal was not satisfied that the deportation would be proportionate. The appeal was accordingly allowed.

5. The Secretary of State appeals on the following grounds:

i) The Respondent provided no evidence that he was working or otherwise exercising treaty rights. In those circumstances it was difficult to see how he could resist deportation. He is not a qualified person under the Regulations. His lack of legal status was not a matter weighed in the balance in the proportionality assessment or otherwise in the decision;

ii) The fact that the Respondent did not attend his hearing was a relevant consideration. The Tribunal had before it no evidence, oral or otherwise, capable of displacing the concerns raised by the Secretary of State. Without hearing from the Respondent himself the Tribunal was not in a position to say whether he continued to pose a threat, or whether his removal would be proportionate;

iii) The Tribunal failed to give adequate weight to the fact that the Respondent continued to offend in the United Kingdom, albeit that his offending was of a different nature to the robberies committed in Poland.

The Hearing
6. There was no appearance by the Respondent. A notice of hearing was sent to his last known address on the 30th November 2016. There was no communication at all from him on file. Mr McVeety informed me that Home Office records show that the Respondent stopped reporting to Blackburn Police Station, as he had been required to do, sometime in July 2016. I was mindful that he had thus far played no part in the proceedings before the Tribunal and had not had any contact with the Secretary of State since December 2015. Having regard to the overriding objective I decided to hear the appeal in the absence of the Respondent.

My Findings

7. I am satisfied that the decision must be set aside. The question of whether the Respondent was, or had ever, exercised treaty rights in the United Kingdom was plainly relevant to all of the matters that the First-tier Tribunal had to consider. At the very least it went to the issue of proportionality; if he was not working, that was arguably also pertinent to the question of risk of reoffending. Although the First-tier Tribunal recognises the paucity of evidence that the Respondent had in fact ever been a qualified person, it does not factor that into its assessment.

8. The second ground, as pleaded in writing, was not particularly attractive. It was at first blush surprising to see the Secretary of State argue that appeals could only rationally be allowed where the appellant is actually present, particularly in view of recent introduction of the 'deport first, appeal later' provision at 24AA. Mr McVeety clarified that this was not in fact the point. The complaint is simply that there was a lack of evidence. The Secretary of State had produced prima facie evidence of criminality, and the Respondent had produced nothing to rebut that. There was no evidence that he had for instance undergone any rehabilitation or sought to integrate himself into British society. These too were matters that went to the heart of the issues raised in the deportation appeal. Ground 3 is related but had this been the only ground I would not have found an error of law for this reason. Weight is a matter for the Tribunal and it cannot be said that the description of these offences as 'minor' was irrational.

9. I indicated that given my findings on grounds (1) & (2) the decision in the appeal would be remade. Mr McVeety accepted that in fairness the matter should be remitted to the First-tier Tribunal so that full findings of fact can be made. In the hiatus between this decision and the matter being re-listed it is to be hoped that the Respondent will re-establish contact with the Tribunal and attend his appeal hearing so that his best case can be advanced and considered.

Decision

10. The determination of the First-tier Tribunal contains an error in approach such that the decision should be set aside.

11. The decision is to be re-made in the First-tier Tribunal.

12. There is no order for anonymity.

Upper Tribunal Judge Bruce
11th January 2017