Tribunal decisions

The decision

IAC-AH-LR-V1

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: DA/00170/2016

THE IMMIGRATION ACTS

Heard at Field House
Decision & Reasons Promulgated
On 20th March 2017
On 30th March 2017

Before

UPPER TRIBUNAL JUDGE FRANCES

Between

Mr Krystian Jelenczyk
(anonymity directioN NOT MADE)
Respondent
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Appellant

Representation:
For the Appellant: In person
For the Respondent: Mr S Staunton, Home Office Presenting Officer

DECISION AND REASONS

1. Although this is an appeal by the Respondent, I shall refer to the parties as in the First-tier Tribunal. The Appellant is a citizen of Poland born on 10th March 1996. His appeal against deportation under the Immigration (EEA) Regulations 2006 was allowed by First-tier Tribunal Judge L K Gibbs for the reasons given in a decision promulgated on 25th November 2016. The Secretary of State appealed.
2. Permission to appeal was granted by First-tier Tribunal Judge Grimmett on the grounds that it was arguable that the judge erred in law in allowing the appeal without considering the risk to the public.

3. Mr Staunton submitted that, although the judge had referred to the low risk of reoffending, she had failed to refer to the assessment that, should the Appellant reoffend, there would be a medium risk of harm to the public. The judge’s failure to refer to this amounted to an error of law because the judge had not fully weighed into the balance the risk of harm to the public in assessing the appeal.

4. I indicated that I did not find this failure to be material given the judge’s other findings. I heard brief submissions from the Appellant who stated that he had undergone further courses in an attempt to rehabilitate himself, but he had not provided such evidence for the appeal because he did not have time to do so.

Discussion and Conclusion

5. The Appellant was convicted of blackmail on 24th September 2015 and sentenced to 27 months’ imprisonment. He was released in June 2016 and his appeal hearing before the First-tier Tribunal took place in November 2016. It was accepted at that hearing that the Appellant had permanent residence in the UK and therefore he could only be deported on serious grounds of public policy.

6. The judge made the following findings: The Appellant was a credible witness; he was 19 at the time he committed the index offence, which was of a serious nature. The Appellant had previous cautions for cannabis and a previous conviction for cannabis for which he received no separate penalty given his sentence for blackmail. The judge took into account the impact on the victim. The Appellant was at low risk of reoffending.

7. The judge found that the Appellant had lived in UK for over half his life and he speaks English fluently. He was educated in the UK and had a good employment history. The Appellant was currently 21 years old and he had an offer of work. He was in a stable relationship and had support from his parents. He was integrated into the UK and he had extended family in Poland.

8. Although the judge did not refer to the medium risk of harm, it is quite clear that the judge took into account the OASys Report. Therefore, her failure to make specific reference to the risk was not a material error. Had the judge added this point to the list of matters that she considered in assessing whether there were serious grounds of public policy, then she would still have concluded that the Respondent had not shown serious grounds. A medium risk of harm would only arise if the Appellant did reoffend and the judge concluded that there was a low risk of reoffending.

9. Further, the Appellant did not have an extreme criminal record and the judge found that the whole experience had a positive affect on him such that he realised the consequences of his actions and had taken steps to address his offending behaviour. The judge, at paragraph 18, stated:

“I find that the OASys assessment dated 4th March 2016 indicates that the Appellant continues to fail to fully understand the impact that his actions have (sic) on his victim. Notwithstanding this however he is considered to be at low risk of reoffending. I also find that the report reflects an increased maturity in the Appellant’s behaviour. His behaviour has improved and was seen to showing (sic) his more mature side in July 2015.”

10. Accordingly, I find that the judge’s failure to specifically refer to the medium risk of harm to the public was not material. The judge took into account all relevant circumstances and properly applied Regulation 21(5) of the Immigration (EEA) Regulations 2006. I find that there was no error of law in the judge’s decision to allow the appeal under the EEA Regulations. The Respondent’s appeal is dismissed.

Notice of Decision

Appeal dismissed

No anonymity direction is made.

J Frances

Signed Date: 29th March 2017

Upper Tribunal Judge Frances