Tribunal decisions

The decision

IAC-FH-NL-V1

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: DA/00200/2016

THE IMMIGRATION ACTS

Heard at Field House
Decision & Reasons Promulgated
On 15th March 2017
On 22nd March 2017

Before

UPPER TRIBUNAL JUDGE MARTIN

Between

SECRETARY OF STATE FOR THE HOME DEPARTMENT
Appellant
and

mario jorge da costa nabais
(ANONYMITY DIRECTION NOT MADE)
Respondent

Representation:
For the Appellant: Mr K Norton, Home Office Presenting Officer
For the Respondent: No representation

DECISION AND REASONS
1. This is an appeal to the Upper Tribunal by the Secretary of State in relation to a Decision of Judge of the First-tier Tribunal Callow promulgated on 16th January 2017 following a hearing on 19th December 2016 at Taylor House. This was a case concerning the deportation of an EEA national.
2. The Appellant is a national of Portugal and aged 26. The background to the decision to deport him was that he was sentenced on 5th February 2016, following convictions for inflicting grievous bodily harm on his 3 week old child and common assault on his partner.
3. The nature of the offence is very significant and the judge in the Decision and Reasons quoted from the sentencing remarks which indicated that the Appellant’s partner had arrived in the UK in February 2015 and the relationship between the Appellant and his partner appeared to be a fairly stormy relationship. She gave birth to their child and neighbours were aware of verbal arguments. The incident giving rise to conviction occurred on 29th June when neighbours heard a very loud argument involving shouting and screaming. The Appellant’s partner had the baby in her arms during this altercation. The Appellant went to raise his hand to her and she dropped the baby which involved a very serious head injury; she had a fractured skull. Fortunately the child has made a full recovery. The sentencing judge said that there were aggravating features present which were domestic violence in the home, although at the lower end of domestic violence, it was not even a single blow and he was sentenced on the basis that he did not actually hit her and there were indications of remorse. The pre-sentence report concluded by recommending a community order which the judge found to be wholly unrealistic as it had crossed the custody threshold. The judge also noted in the sentencing remarks that the partner had communicated with the court, indicating that she viewed the incident to be an accident. The judge did not accept that because the Appellant had pleaded guilty. The judge also noted that she was told that the couple were planning to get back together and the background to the incident was that the partner was suffering from post-natal depression. The judge also took into account that they were both young parents, in a strange land, with a lot of pressures and that the Appellant was a hardworking young man, working in the construction industry earning good money. As a result of the mitigating factors of good character and plea resulted in the lowest sentence that the judge was able to pass, being ten months for count 1 and fourteen days for count 2, to run concurrently.
4. The First-tier Tribunal Judge noted all of that and also noted that the Appellant had shown remorse, that it was the couple’s to get back together and indeed had been prevented from doing so because the Appellant’s ID card had been retained, for some reason that seems to be unexplained, by the police. The partner had gone to Portugal to be with her family while the Appellant was in prison. The judge came to the conclusion that the Appellant did not represent a genuine, present and sufficiently serious risk to one of the fundamental interests of society. She was clearly satisfied that he had shown genuine remorse and that this was a one off incident that was not to be repeated. The judge found that the Appellant had rehabilitated himself as a result of his genuine regret and remorse and the unforeseen consequences that arose from that argument.
5. The Secretary of State’s case is that the finding of the Appellant not representing a genuine, present and sufficiently serious threat were inadequately reasoned and that the suggestion that he had been rehabilitated was also insufficiently reasoned and the Secretary of State clearly was concerned with the gravity of the offence.
6. It is quite clear from her Decision and Reasons what the judge’s reasoning was and as far as I can see they are more than adequate and indeed it is surprising that anyone would think that this Appellant represented a genuine, present and sufficiently serious threat and whilst the offence was very serious it was more serious in its consequences than that its commission. Had the child not been dropped then there probably would have been no criminal proceedings at all.
Notice of Decision
7. For all those reasons I find that the First-tier Tribunal did not make an error of law material or otherwise and the Secretary of State’s appeal to the Upper Tribunal is dismissed.

No anonymity direction is made.

Signed Date 22nd March 2017

Upper Tribunal Judge Martin