DA/00181/2016

• Status of case: Unreported
• Hearing date: 12 Sep 2016
• Promulgation date: 28 Sep 2016
• Publication date: 9 Jun 2020
• Last updated on: 9 Jun 2020

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: DA/00181/2016


THE IMMIGRATION ACTS


Heard at Royal Courts of Justice
Decision & Reasons Promulgated
On 12th September 2016
On 28th September 2016



Before

UPPER TRIBUNAL JUDGE FRANCES


Between

Secretary of State for the Home Department
Appellant
and

EUGENIJUS [Z]
(anonymity direction not made)
Respondent


Representation:
For the Appellant: Mr D Clarke, Home Office Presenting Officer
For the Respondent: Ms E Heikkila, instructed by The Aire Centre


DECISION AND REASONS
1. Although this is an appeal by the Secretary of State for the Home Department, I shall refer to the parties as in the First-tier Tribunal. The Appellant is a citizen of Lithuania born on 7th August 1971. His appeal against the Respondent's decision of 13th April 2016 to make a deportation order was allowed by First-tier Tribunal Judge M J Gillespie in a decision promulgated on 19th July 2016.
2. The Respondent appealed on the ground that the judge had undertaken an incomplete, inadequate and perverse balancing exercise under paragraph 21 of the Immigration (EEA) Regulations 2006, which amounted to an error of law.
3. The judge found that the Appellant presented somewhat of a risk to the public of continued petty theft and alcohol abuse as a vagrant, but concluded that this was not a sufficiently serious threat to one of the fundamental interests of society. It was submitted by the Respondent that this finding was completely unreasoned and was manifestly perverse. Further, the judge had gone on to look for reasons not to deport the Appellant rather than carry out a holistic proportionality assessment. The judge appeared to suggest that administrative removal may be more appropriate, but ignored the fact that EEA nationals who are liable to administrative removal, who have ceased to be qualified persons, do not consistently offend for over twelve months in order to be removed.
4. Permission to appeal was granted by First-tier Tribunal Judge Grant-Hutchison on the basis that: "It was arguable that the judge had misdirected himself (a) in failing to provide adequate reasons in the balancing exercise why the Appellant does not pose a sufficiently serious threat to a fundamental interest of society when there is a risk to the public of continued petty theft and alcohol abuse as a vagrant and (b) by suggesting that administrative removal may be more appropriate which arguably ignores the fact that those EEA nationals who are liable to such removal who have ceased to be qualified persons do not consistently offend for over 12 months in order to removed.

Submissions
5. Mr Clarke relied on the two points made in the grounds, namely that the judge's reasoning was inadequate and perverse and he erred in law in considering administrative removal. The judge found at paragraph 21 that the Appellant was at risk of continued petty theft and alcohol abuse as a vagrant, but concluded that this did not amount to a serious threat to one of the fundamental interests of society. The finding was perverse because the judge found that the Appellant was a genuine and present threat which engaged one of the fundamental interests of society and since the Appellant had failed to show that he had permanent residence the lower threshold was applicable. On the facts it was not open to the judge to find that the risk was not a sufficiently serious one given that he conceded that the Appellant was a risk to the public of continued petty theft and alcohol abuse as a vagrant. Accordingly, the judge's reasoning was erroneous and perverse. Further, the judge erred in law in taking into account that the Appellant could be subject to administrative removal, which appeared to be a reason to justify the previous decision that the Appellant was not a serious threat because there was an alternative form of removal.
6. Ms Heikkila submitted that the Appellant was a skilled person and that his problems started when his relationship broke down. His pattern of offending mirrored his personal struggle and the Appellant had pleaded guilty on each occasion. The Appellant had argued on appeal that he had permanent residence and was exercising treaty rights. However, the judge found that this was not in fact the case. It was also argued that the Appellant's deportation was not proportionate because the Appellant was not a serious threat. There was plentiful and clear evidence in the Appellant's bundle that his offending related to his personal distress and he was unable to cope with the breakup of his relationship. His offending was out of character and it was self-evident that he was at no risk of future offending. Shoplifting one or two bottles of wine was not a serious threat to one of the fundamental interests of society. The second point did not amount to an error of law. The judge had merely offered an alternative and this was not part of his consideration of whether the Appellant posed a serious threat. The judge had thoroughly assessed the Appellant's case and considered all matters taking into account all relevant factors. There was no material error of law in the judge's conclusions.
7. In response, Mr Clarke submitted that the judge had made findings that the Appellant was a genuine and present threat and that the risk continued that he would engage in petty theft and alcohol abuse as a vagrant and therefore the judge's conclusion that he was not a serious threat to a fundamental interest of society was in fact perverse.

Discussion and Conclusions
8. The judge set out at great length in paragraphs 13 to 17 of his decision his factual findings and on the basis of those factual findings it was open to the judge to conclude that the Appellant did not have permanent residence in the UK and therefore the applicable test in his case was whether there were serious grounds of public health or public security. The judge properly directed himself in law and was aware that certain principles set out in Regulation 21(5) must be complied with:
(i) where a relevant decision on grounds of public policy or public security must be justified the decision must comply with the provision of proportionality;
(ii) it must be based exclusively on the conduct of the person concerned;
(iii) that conduct must represent a sufficiently serious threat affecting a fundamental interest of society;
(iv) matters of general prevention do not justify deportation on these grounds; and
(v) a person's criminal convictions in themselves do not justify deportation.
9. The judge found that the reasons put forward by the Respondent to justify deportation were that the Appellant had ceased to be a qualified person in the UK, he took alcohol, committed a series of petty offences and slept rough whilst under the influence of alcohol. Although the judge accepted that the Appellant was somewhat of a risk to the public of continued petty theft and alcohol abuse as a vagrant, the judge concluded that this was not a serious threat to one of the fundamental interests of society. He did not consider it to be a sufficiently serious threat in terms of the Regulations such as would justify deportation.
10. I am of the view that given the judge's earlier findings of fact, his conclusions at paragraph 21 amount to adequate reasons. Those conclusions were not perverse given the nature of the Appellant's offending behaviour. The fact that he may well be at risk to the public of continued petty theft and alcohol abuse as a vagrant was not in the judge's view a sufficiently serious threat to one of the fundamental interests of society. I find that this conclusion was open to the judge on the evidence before him and it is quite clear that he had properly applied the provisions of Regulation 21(5) which he set out at paragraph 20. Accordingly I find that there was no error of law in relation to the first ground.
11. I also find that there was no error of law in relation to the second ground because the judge merely points out, after coming to the conclusion that the Appellant was not a sufficient serious threat, that should the Respondent wish to remove the Appellant the proper course in a case such as this would be administrative removal. Justification for deportation was not made out and if the Appellant did not have permanent residence and was not exercising Treaty rights then it would be perfectly open to the Respondent to administratively remove him. The judge did not take into account this alternative course of action which was open to the Secretary of State in concluding that the Appellant was not a serious threat to one of the fundamental interests of society. It is quite clear from what the judge states at paragraph 21 that this was an alternative course of action open to the Respondent and not a reason for allowing the Appellant's appeal.
12. The judge's concludes at paragraph 21: "In my judgment, so lacking in seriousness is the threat, if any, posed by the appellant to society in the United Kingdom, and so substantial in the right of freedom of movement is the extreme of deportation, that this method of enforcement would not accord with the principle of proportionality." Accordingly, I find that there was no error of law in the judge's decision to allow the appeal under the Immigration (EEA) Regulations 2006 and I dismiss the Respondent's appeal.

Notice of Decision
The appeal is dismissed.
No anonymity direction is made.


J Frances
Signed Date: 23rd September 2016

Upper Tribunal Judge Frances