Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: DA/00219/2016

THE IMMIGRATION ACTS

Heard at Bradford
Decision & Reasons Promulgated
On 5 September 2016
On 29 September 2016

Before

UPPER TRIBUNAL JUDGE CLIVE LANE

Between

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Appellant
and

ROBERT [S]
(ANONYMITY DIRECTION NOT MADE)
Respondent

Representation:
For the Appellant:
For the Respondent:

DECISION AND REASONS
1. I shall refer to the appellant as the respondent and to the respondent as the appellant (as they appeared respectively before the First-tier Tribunal). The appellant, Robert [S], was born on 3 March 1972 and is a male citizen of Poland. He appealed to the First-tier Tribunal (Judge Hillis) against the decision of the Secretary of State dated 24 April 2016 to deport him to Poland pursuant to Regulation 19, 21 and 24 of the Immigration European Economic Area (EEA) Regulations 2006. The First-tier Tribunal allowed his appeal under the 2006 Regulations and on human rights grounds (Article 8 ECHR). The Secretary of State now appeals, with permission, to the Upper Tribunal.
2. The Appellant appeared on eleven separate occasions before Magistrates' Courts between October 2007 and April 2016 and was sentenced to a number of community-based sentences, including a period of 28 days' imprisonment (March 2012) for an offence of shoplifting. As Judge Hillis noted [12], "In summary five offences of shoplifting, three offences of drunk and disorderly behaviour, one offence for assaulting a police constable in the execution of his duty and failing to surrender to custody."
3. At [47] Judge Hillis concluded:
i. I conclude, for the reasons set out above, that the respondent has failed to show, to the required standard, that the appellant's residence in the UK is not conducive to the public good and is not justified on the grounds of public policy, public security or public health as required by Regulation 19 of the EEA Regulations 2006 and his deportation is contrary to his treaty rights.
4. The judge went on to conclude at [48] that the appellant's right to "private/family life with his partner, Miss Atif, with whom he has a genuine and subsisting relationship in the UK will be breached by his deportation." The judge later noted that the Presenting Officer did not submit to him that the relationship with Miss Atif was "not genuine and subsisting."
5. The grounds of appeal are set out in four paragraphs. The first paragraph reads:
i. It is respectfully submitted that the FTTJ has erred in his conclusion that the appellant's deportation would be contrary to his Treaty Rights. It is respectfully asserted that having found in the first instance and by the appellant's own admission that he was not in fact exercising Treaty Rights having worked in the UK unlawfully throughout his period of residence, it is misdirected to conclude that deportation in light of his offending would therefore be contrary to his Treaty Rights. The appellant has not demonstrated that he is a qualified person and has accepted that he is in fact not exercising treaty rights in the UK as such there can be no interference.
6. The grounds of appeal are correct in stating that the appellant, by his own admission, had never worked lawfully in the United Kingdom and had never paid any income tax or national insurance contributions (as noted by the judge a [15]). The judge addressed the question of the appellant's abuse of Treaty Rights at [42-46]. In summary, the judge found the appellant's illegal working "does not appear to be an effort to circumvent the requirement to be a qualified person ... but is more likely to have been a desire to avoid paying income tax and NIC in the UK as money paying those taxes would have rendered him a qualified person." I am uncertain as to the meaning of that sentence. The grounds of appeal [2] describe this observation of the judge as "misdirected in the extreme" pointing out that free movement within the European Union relied upon workers paying taxes required of them in member states where they may be working. I agree. The fact remains that this appellant has never worked legally whilst there was no evidence that he has ever been a jobseeker or that he has qualified for Treaty Rights in any other capacity. The passage of the judge's decision which I have referred to above (it appears at [44]) appears to suggest that the appellant lacked the intention to avoid exercising Treaty Rights and that, in consequence, his failure to exercise those rights should not be held against him. I consider such conclusion does indeed fall into the category of an "extreme misdirection." The appellant was either exercising Treaty Rights or he was not; it matters not as to his intentions or lack of them. If he did not exercise Treaty Rights, then that fact altered the protection to which he might be entitled under the 2006 Regulations.
7. The second matter which led Judge Hillis to discount the fact that the appellant had not been exercising Treaty Rights concerns the residence card issued to Miss Atif by the respondent in 2015. The judge notes [45] that there was "no evidence or submission before me that [the residence card] was obtained by deception." The judge observes that "the appellant must have been regarded [by the respondent] as a qualified person when Miss Atif was granted her residence card ...." This observation appears to have led the judge to conclude that the Secretary of State is, by issuing the residence card, now prevented from asserting that the appellant is not and has not been exercising Treaty Rights. I find that the judge erred in law in reaching such a conclusion. First, we have no evidence that the residence card was properly obtained. On the contrary, it appears that it was not given that the appellant had never worked legally or been a jobseeker within the United Kingdom. It may well be the case (as stated in the grounds of appeal at [3]) "that it is only a requirement to demonstrate economic activity in the UK at the time of the application [to obtain a residence card]." I also agree with the respondent's submission that Miss Atif's residence card was "wholly parasitic" upon the treaty rights supposedly enjoyed by the appellant. It follows that the appellant enjoyed no such rights, and the residence card issued to Miss Atif has been void or not valid ab initio.
8. Judge Hillis should have concluded, on the evidence before him, that the appellant was not entitled to protection under the 2006 Regulations because he was not at the date of the decision or at the date of the hearing or, indeed, at any time during his residence in the United Kingdom exercising Treaty Rights. He has never fallen within any of the definitions of a qualified person (regulation 6) so had no extended right to remain beyond an initial period of 3 months (regulation 13(1) and see also regulation 14(1)). The appellant never sought legitimate work but rather chose to work illegally without paying tax. I therefore set aside Judge Hillis' decision and have remade the decision. The appeal against the decision to deport the appellant dated 24 April 2016 is dismissed. Article 8 ECHR was not pursued in the Upper Tribunal but insurmountable obstacles in so far as it may remain a ground of appeal, I dismiss it. Whilst the appellant may be in a subsisting relationship with Ms Atif, no evidence has been produced to show that the relationship may not reasonably be continued abroad. On the other hand, the public interest in removing the appellant, an individual who has chosen to work illegally in the United Kingdom, is very considerable.

9. Notice of Decision
10. The decision of the First-tier Tribunal promulgated on 12 July 2016 is set aside. I remake the decision. The appellant's appeal against the Secretary of State's decision to deport him dated 24 April 2016 is dismissed.
11. No anonymity direction is made.

Signed Date 29 September 2016

Upper Tribunal Judge Clive Lane

I have dismissed the appeal and therefore there can be no fee award.

Signed Date 29 September 2016

Upper Tribunal Judge Clive Lane