Tribunal decisions

The decision

IN THE UPPER TRIBUNAL
IMMIGRATION AND ASYLUM CHAMBER

Case No: UI-2022-003067
First-tier Tribunal No: DA/00173/2020

THE IMMIGRATION ACTS

Decision & Reasons Issued:
On the 29 April 2023

Before

UPPER TRIBUNAL JUDGE HANSON

Between

SECRETARY OF STATE FOR THE HOME DEPARTMENT
Appellant
and

JAN POKUTA
(NO ANONYMITY ORDER MADE)
Respondent

Representation:
For the Appellant: Mr Williams, a Senior Home Office Presenting Officer.
For the Respondent: Mr Hingora, instructed by Shahban Solicitors.

Heard at Birmingham Civil Justice Centre on 9 March 2023

DECISION AND REASONS

1. The Secretary of State appeals with permission a decision of the First-tier Tribunal Judge Bannerman (‘the Judge’), promulgated on 18 May 2022 following a hearing at Manchester, in which the Judge allowed the appellant’s appeal against the order for his deportation from the United Kingdom.
2. Mr Pokuta is a citizen of Slovakia born on 4 January 1989 who, on 23 September 2019, was convicted for the offence of Affray on a guilty plea and sentenced to 15 months imprisonment.
3. Following consideration of the documentary and oral evidence the Judge sets out findings of fact from [71] of the decision under challenge. The Judge finds Mr Pokuta has been in the United Kingdom for more than 10 years [76], that he has been exercising treaty rights throughout that period [85], that the period of 10 years was acquired prior to his sentencing [86], that the integrity of his links to the UK had not been broken as a result of his sentence and period of imprisonment [87], that Mr Pokuta had acquired permanent residence in the UK [92], and that the Secretary of State had not established that imperative grounds for his removal had been made out [92].
4. The Secretary of State sought permission to appeal claiming, in summary, the Judge had failed to consider whether Mr Pokuta’s imprisonment broke his integration, therefore applied the wrong threshold to the justification of deportation, was wrong in any event to find that the higher threshold had not been met and should have found that deportation was proportionate.
5. Permission to appeal was granted by another judge of the First-tier Tribunal on 31 May 2022 on the basis it was said to be arguably unclear as to whether the Judge required serious grounds or imperative grounds for deportation to be established. It said that if the latter, it is arguable the Judge failed to take into account the effect of the appellant’s imprisonment on the integrity of links in the UK, and so consequently failed to take into account a material fact in reaching his or her decision.
6. Contrary to the grounds seeking permission to appeal and the grant of permission to appeal, a reader of the determination can see that the Judge made a finding that the 10 years residence period had been met and that imperative grounds had not been made out, as noted above, for which adequate reasons are provided. I find no merit in the assertion otherwise.
7. The Judge took into account relevant case law [87] in which it was found that a period of imprisonment did not automatically break a 10 year period of residence in the Member State, and that what was required was the extent to which the integrity of links previously forged had been broken. This is the approach adopted by the Judge before concluding as recorded in the determination.
8. The Judge took into account issues such as length of residence, the appellant’s age, state of his health, his family situation, his economic situation, social and cultural integration, and the low risk of offending as part of the assessment of the appellant’s links to the UK, both prior to the expulsion decision and after his release from prison up to the date of the hearing, consistent with Schedule 1(2) of the Immigration (EEA) Regulations 2016. No legal error is made out the Judge’s assessment of the length of residence or integrity of links.
9. The Judge noted the appellant had, on an early occasion, stated by declaration that he wished to return to Slovakia on receipt of the deportation order but that is a matter that was properly addressed by the Judge at [77]. The decision to place little weight on this factor is adequately reasoned and not shown to have been an irrational conclusion when the facts are considered as a whole. No legal error is made out in relation to the voluntary departure point.
10. In relation to the question of genuine, present and sufficiently serious threat, the Judge took into account all the evidence including that from the probation officer. The Judge properly noted the nature of the appellant’s offending behaviour, specifically noting at [89] that the conviction is significant and should be given due regard. I find no legal error in the language used by the Judge in establishing the Judge failed to properly take into account the seriousness of the offending when the determination is read as a whole.
11. In relation to the issue of proportionality, the Judge undertook the required holistic assessment of the evidence and clearly finds that the Secretary of State had not established imperative grounds such as to justify Mr Pokuta’s removal from the United Kingdom on the facts. The Court of Appeal have made it abundantly clear that appellate courts, including themselves, should not interfere with a decision unless an error of law is apparent. Whilst the Secretary of State disagrees with the Judge’s conclusions and would clearly like to secure the appellant’s removal from the UK, it cannot be said that the grounds establish legal error material to the decision to dismiss the appeal. The findings set out in the determination are within the range of those reasonably available to Judge Bannerman following the holistic assessment of the evidence, are adequately reasoned, and have not been shown to be irrational, perverse, or contrary to the material made available. On that basis the appeal is dismissed.
Notice of Decision
12. No material error of law is made out in the decision of the First-tier Tribunal. The determination shall stand.

C J Hanson

Judge of the Upper Tribunal
Immigration and Asylum Chamber

24 March 2023