Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: DA/00240/2015

THE IMMIGRATION ACTS

Heard at Royal Courts of Justice
Decision & Reasons Promulgated
On 8 August 2016
On 19 August 2016

Before

UPPER TRIBUNAL JUDGE CRAIG

Between

Secretary of State for the Home Department
Appellant
and

MR VITOR EMANUEL SEBASTIAO GOMES MIRANDA
(ANONYMITY DIRECTION NOT MADE)
Respondent

Representation:
For the Appellant (Secretary of State): Mr N Bramble, Home Office Presenting Officer
For the Respondent (Mr Miranda): Ms C Mascord, Solicitor of Lawrence Lupin Solicitors

DECISION AND REASONS
1. This is the Secretary of State's appeal against a decision of First-tier Tribunal Judge Cockrill who had allowed Mr Miranda's appeal against her decision to deport him. For ease of convenience I shall refer throughout this decision to Mr Miranda, who was the original appellant, as "the claimant" and to the Secretary of State who was the original respondent, as "the Secretary of State".
2. The claimant is a citizen of Portugal who was born on 17 May 1988 and he arrived in this country in 1999 when he was 11 years old. Since then he has lived continuously in this country. There was originally an issue as to whether or not there was a gap in his residence here but at the hearing before Judge Cockrill as referred to above it was accepted by the judge, and the Secretary of State does not any longer dispute, that the claimant had been in this country effectively throughout the period since he arrived.
3. On 5 September 2011 the claimant was convicted of common assault and using threatening and abusive insulting words or behaviour with intent to cause fear or provocation and violence at the City of London Magistrates' Court for which he was sentenced to carry out community service, that is an unpaid work requirement of 80 hours with compensation and a fine. Subsequently on 9 March 2012 the claimant committed a very serious offence indeed because he was subsequently found guilty by a jury at St. Alban's Crown Court of grievous bodily harm with intent for which in 2014 he was sentenced to a period of imprisonment of four years. Subsequent to his conviction the claimant was notified by the Secretary of State as to his liability to deportation and a deportation order was made.
4. The claimant appealed against this order and his appeal was heard before First-tier Tribunal Judge Cockrill sitting at Hendon Magistrates' Court on 4 November 2015. In a decision promulgated on 17 November 2015 Judge Cockrill allowed his appeal.
5. Although as I have indicated there was an issue as to the continuity of the claimant's residence in this country, Judge Cockrill determined that he had in fact been resident since 1999 and had accordingly been present in this country as a European citizen for some thirteen years before the date of the index offence and some fifteen years before being sentenced to imprisonment. In those circumstances the judge concluded that in order for deportation to be lawful it had to be justified on "imperative" grounds of public security. This is pursuant to Regulation 21(4) of the 2006 EEA Regulations which seek to embody the relevant Directive 2004/38/EC, the applicable Article of that Directive being Article 28(3)(a). Judge Cockrill decided (at paragraph 147) that the threshold which needed to be crossed before there could be said to be "imperative" grounds of public security justifying this claimant's deportation was not reached because "quite simply this offence is simply not serious enough". He categorised the offence as being "indeed a drunken incident outside a nightclub at night, a person was injured by being punched and kicked and of course there could be very serious consequences for the victim". However, having regard (which he did at paragraph 148) to what the sentencing judge had said in respect of this offence, the judge "did make a number of positive points" which included that "it was not premeditated. It appeared to be isolated [and] the [claimant] had some recognition of what he had done, although I can appreciate that he did not fully understand the application of the principle of joint enterprise".
6. The Secretary of State now appeals with leave against this decision on the basis that the judge had not properly considered what were "imperative" grounds affecting public security. From the grounds it appears to be the Secretary of State's case, as asserted at ground 1, "that imperative grounds of public security is not limited to matters of national security" but that "it is a wide reaching concept" and that in this case "the [claimant's] conduct and extant risk is such that his deportation is justified on imperative grounds of public security". It is said that the judge had made a material error of law by not having in mind the statement to the effect that imperative grounds of public security was not limited to matters of national security contained within the judgment of the Court of Appeal in LG (Italy) v SSHD [2008] EWCA Civ 190.
7. Interestingly, there is no reference within the grounds to the judgment of the European Court in MG, handed down on 16 January 2014 in which the judgment of the court is summarised as follows at the conclusion:
"1. On a proper construction of Article 28(3)(a) of Directive 2004/38/EC of the European Parliament and of Council of 29 April 2004 on the right of citizens of the Union and their family members to move and reside freely within the territory of the Member State..., the 10-year period of residence referred to in that provision must, in principle, be continuous and must be calculated by counting back from the date of the decision ordering the expulsion of the persons concerned.
2. Article 28(3)(a) of Directive 2004/38 must be interpreted as meaning that a period of imprisonment is, in principle, capable both of interrupting the continuity of the period of residence for the purposes of that provision and of affecting the decision regarding the grant of the enhanced protection provided for thereunder, even where the person concerned resided in the host Member State for the ten years prior to imprisonment. However, the fact that that person resided in the host Member State for the ten years prior to imprisonment may be taken into consideration as part of the overall assessment required in order to determine whether the integrating links previously forged with the host Member State have been broken."
8. Accordingly, Judge Cockrill arguably should have started from the position that counting back because the claimant had been in custody immediately prior to the decision being made, he was not necessarily entitled to the highest protection, because counting back he did not have ten years' continuous residence in this country. However, he would then have had to consider whether the period of imprisonment had been such as to break the integrating links which the claimant had previously forged.
9. This is however in my judgment academic in the circumstances of this case and to the extent that the judge was in error in not starting from this basis. It is not a material error for two reasons. The first is that it is not disputed on behalf of the Secretary of State before this Tribunal that the integrating links which this claimant had forged with this country had not been broken but secondly, in any event, at paragraph 160 of his decision Judge Cockrill found in terms that his assessment was that "the claimant] is socially and culturally integrated here" because "his family have really made the United Kingdom their home and that has been the position for this [claimant] as well".
10. Accordingly, the only issue which has to be determined is whether the judge made any arguable material error in his consideration of whether or not there were imperative grounds justifying the deportation of the claimant.
11. Mr Bramble on behalf of the Secretary of State merely asks the Tribunal today to have regard to what is in the grounds on which he relies. In my judgment there is really no basis in this case on which Judge Cockrill or any other judge could possibly have found other than there are not imperative grounds justifying deportation. I should note in this regard that at paragraph 146 of his decision Judge Cockrill even went as far as to find that "even if I am wrong in that analysis as to the appropriateness of the imperative threshold... that even if it is 'serious' grounds that it is distinctly arguable that the [claimant] should not be deported" so the judge clearly did not even regard this as a finely balanced case and neither do I.
12. The judge correctly stated that the offence was very serious and that but for the fact that this claimant was an EU national he would most likely have been deported, because under the Rules there would have been no reason why he would not (see paragraph 169 of the decision) but as the judge rightly notes the case has to be decided on the basis of the Rules which apply and it simply cannot realistically be argued in this case, given the one serious conviction, albeit coupled with a much less serious offence which did not result in his imprisonment, that the risk to the public is sufficiently high as to justify deportation on imperative grounds.
13. Accordingly it follows that there being no material error of law in Judge Cockrill's decision, this appeal by the Secretary of State must be dismissed and I will so find.
Decision
There being no material error of law in the decision of the First-tier Tribunal, the Secretary of State's appeal is dismissed and the decision of First-tier Tribunal Judge Cockrill, allowing the claimant's appeal against the Secretary of State's decision to deport him, is affirmed.
No anonymity direction is made.

Signed:

Upper Tribunal Judge Craig Date: 18 August 2016