Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: DA/00258/2015

THE IMMIGRATION ACTS

Heard at Field House
Decision and Reasons Promulgated
On 15 February, 14 June and 21 December 2016
On 22 December 2016

Before

UPPER TRIBUNAL JUDGE GLEESON

Between

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Appellant

and

Ed Adjei Chief Boateng
(no anonymity order made)
Respondent

Representation:

For the Appellant: Mr T Melvin, a Senior Home Office Presenting Officer
For the Respondent: Ms S Bassiri-Dezfouli, Counsel instructed by A2 Solicitors

DECISION AND DIRECTIONS
1. The Secretary of State appeals with permission against the decision of the First-tier Tribunal, allowing the claimant's appeal against her decision to remove him to the Netherlands. As a citizen of the Netherlands, the claimant has the benefit of the Immigration (European Economic Area) Regulations 2006 (as amended) and Regulations 19(3)(b) and 21(3) apply to his removal.
2. The matters relied upon in the refusal letter are that the claimant committed the offence in question; that the Secretary of State disagrees with the NOMS assessment that he presents a low risk of reconviction; that the claimant has denied some aspects of the offence during his trial (although he pleaded guilty and appealed neither conviction nor sentence); that (in effect) his remorse is not genuine; and that she considers that the claimant has not successfully addressed the issues which caused him to offend. The Secretary of State considered that the claimant had a propensity to re-offend, but that appears to have been based on his cannabis use, which has ceased, and his having committed the offence in the first place.
3. The extent to which the prospects of rehabilitation are relevant to this appeal are governed by the Upper Tribunal's guidance in MC (Essa principles recast) [2015] UKUT 520 (IAC) (MC 'Essa Recast') which draws a distinction between EEA criminals who have a permanent right of residence and those who have only the basic Regulation 21 protection. It is now accepted on behalf of the Secretary of State that the claimant has a permanent right of residence and is entitled to the medium level of protection, that is to say, that she must demonstrate 'serious grounds of public policy or public security' before removing him to the Netherlands.
4. When adjourning the hearing on 14 June 2016, I gave directions which led to that acceptance. I further directed the parties to agree a schedule of facts not in dispute, indicating those which remained contentious, and to serve that Schedule on the Upper Tribunal, together with written submissions, including whether a further oral hearing is required, and dealing (as appropriate) with the Essa (recast) factors. The directions concluded:
"The Upper Tribunal, on receipt of the written submissions directed at (d) above, and the Secretary of State's statement at (c) above, if relevant, will decide how the appeal should proceed. The Upper Tribunal may decide to determine the appeal without a further oral hearing, or to re-list it for evidence and/or submissions on a date to be fixed."
5. The submissions directed were received by 12 August 2016, although in the case of the claimant's submissions, they were not linked to the file until today. No statement of facts has been served as directed. The Secretary of State's submissions assume, but do not justify, a further hearing. Neither party's submissions engaged in detail with the principles in MC (Essa recast).
6. The Secretary of State in her submissions acknowledged that she had received the documents ordered and that she accepted that the claimant's mother was exercising Treaty rights in the United Kingdom from 2008-2013 and accordingly, that the claimant had acquired a right of permanent residence here before his conviction and imprisonment in 2014. She accepted that she would have to show 'serious grounds of public policy' for his deportation from the United Kingdom. The Secretary of State relied on her refusal letter, noting that the claimant had been convicted of a violent robbery and asserting that he still posed a threat to society.
7. The claimant's representatives made written submissions, copied to the Secretary of State. They argued that the claimant had been very young when the offence happened, and had been treated, for the purpose of sentencing, as a person of good character. His actions had been completely out of character and he had pleaded guilty. The appellant had dealt with his cannabis use, and had a partner in the United Kingdom, with whom his relationship was serious. He lived with his mother and sister, and was close to both. His emotional and financial needs were met by his mother and sister, and he hoped to continue his education in the United Kingdom.
8. The claimant's solicitors submitted that it was unlikely that he would reoffend. He had learned his lesson, and had grown up. He was no longer a genuine and sufficiently serious threat to one of the fundamental interests of society (LG and CC (EEA Regulations: residence: imprisonment: removal) Italy [2009] UKIAT 00024 at [103] cited). They argued that the Secretary of State's refusal letter did not engage with the test at Regulation 21(5)(6) and her submission added nothing to the refusal letter relied upon.
9. The claimant did not seek a further oral hearing, Ms Bassiri-Dezfouli inviting me to 'allow the appeal' based on the facts of this case, the relevant law, and her written submissions. I assume, since this is the Secretary of State's appeal, that Ms Bassiri-Dezfouli wishes me to dismiss the Secretary of State's appeal and remake the decision in the claimant's favour.
Discussion
10. I do not consider that a further hearing is necessary. The facts are not in dispute and the law can now be applied to them. The facts are that the claimant, a citizen of the Netherlands, has been in the United Kingdom since he was 12 years old and is now 22 years old. He has had all of his adult and teenage years and all his secondary schooling here. The claimant began a football career, which was interrupted by his conduct and his imprisonment. His mother is in employment and rents a house for herself, the claimant and his sister. The claimant has a partner, whom he met in 2011 and with whom he began a relationship in 2014. She visited him regularly in prison, twice a month.
11. The claimant has come to the adverse attention of the United Kingdom authorities on 3 occasions, but has only one conviction. In 2011, when he was 17 years old, he received a caution for false representations and fraud, pursuant to section 1(2)(a) and 2 of the Fraud Act 2006; in 2012, he was cautioned again for the opportunistic theft of a bicycle, which he found, he says, abandoned at the rubbish bins and rode away.
12. In 2013, when with two friends, he went out and one of them used a home-made baton to attack someone and try to steal his mobile telephone, causing actual bodily harm. The claimant was then 19 years old, and the victim was intoxicated and vulnerable. The victim subsequently felt insecure going out at night. The Judge found the claimant to be a man of 'virtually impeccable character' and sentenced him to 2 years' detention in a Young Offender Institution. NOMS considered him to pose a low risk of re-offending, but a medium risk of harm, on his release, if he continued to use cannabis. He was subjected to the minimum level of Multi-Agency Public Protection Arrangements (MAPPA).
13. The claimant did not appeal either the conviction or the sentence and served his sentence without incident. In prison, he took courses in Peer Mentoring and Employability. He did not take a Victim Awareness course or an Enhanced Thinking Skills course, which may have been available to him. He expresses remorse in relation to the index offence. The claimant could not work after his release, but his mother, sister and partner gave him money.
14. The First-tier Tribunal Judge allowed the appeal, applying the 'serious grounds' basis which, it is now established, is the correct approach, and found the claimant to be genuinely remorseful. The Judge considered that the claimant's removal was disproportionate, and that he had a better chance of continuing his rehabilitation with the help of his mother, his sister, and his partner in the United Kingdom, rather than in the Netherlands, where he knew no one.
Regulation 21 of the EEA Regulations
15. The claimant is entitled to the medium level of protection afforded by Regulation 21(3):
"21.-(1) In this regulation a "relevant decision" means an EEA decision taken on the grounds of public policy, public security or public health. ?
(3) A relevant decision may not be taken in respect of a person with a permanent right of residence under regulation 15 except on serious grounds of public policy or public security."
16. Regulations 21(5) and 21(6) set out the considerations to be taken into account when considering whether to remove an EEA citizen from the United Kingdom:
"21. ?(5) Where a relevant decision is taken on grounds of public policy or public security it shall, in addition to complying with the preceding paragraphs of this regulation, be taken in accordance with the following principles-
(a) the decision must comply with the principle of proportionality;
(b) the decision must be based exclusively on the personal conduct of the person concerned;
(c) the personal conduct of the person concerned must represent a genuine, present and sufficiently serious threat affecting one of the fundamental interests of society;
(d) matters isolated from the particulars of the case or which relate to considerations of general prevention do not justify the decision;
(e) a person's previous criminal convictions do not in themselves justify the decision.
(6) Before taking a relevant decision on the grounds of public policy or public security in relation to a person who is resident in the United Kingdom the decision maker must take account of considerations such as the age, state of health, family and economic situation of the person, the person's length of residence in the United Kingdom, the person's social and cultural integration into the United Kingdom and the extent of the person's links with his country of origin."
MC (Essa principles recast) [2015] UKUT 520 (IAC)
17. In MC (Essa recast) the Upper Tribunal identified the correct approach thus:
"1. Essa rehabilitation principles are specific to decisions taken on public policy, public security and public health grounds under regulation 21 of the 2006 EEA Regulations.
2. It is only if the personal conduct of the person concerned is found to represent a genuine, present and sufficiently serious threat affecting one of the fundamental interests of society (regulation 21(5)(c)) that it becomes relevant to consider whether the decision is proportionate taking into account all the considerations identified in regulation 21(5)-(6).
3. There is no specific reference in the expulsion provisions of either Directive 2004/38/EC or the 2006 EEA Regulations to rehabilitation, but it has been seen by the Court of Justice as an aspect of integration, which is one of the factors referred to in Article 28(1) and regulation 21(6) (Essa (2013) at [23]).
4. Rehabilitation is not an issue to be addressed in every EEA deportation or removal decision taken under regulation 21; it will not be relevant, for example, if rehabilitation has already been completed (Essa (2013) at [32]-[33]).
5. Reference to prospects of rehabilitation concerns reasonable prospects of a person ceasing to commit crime (Essa (2013) at [35]), not the mere possibility of rehabilitation. Mere capability of rehabilitation is not to be equated with reasonable prospect of rehabilitation.
6. Where relevant (see (4) above) such prospects are a factor to be taken into account in the proportionality assessment required by regulation 21(5) and (6) ((Dumliauskas [41]).
7. Such prospects are to be taken into account even if not raised by the offender (Dumliauskas [52]).
8. Gauging such prospects requires assessing the relative prospects of rehabilitation in the host Member State as compared with those in the Member State of origin, but, in the absence of evidence, it is not to be assumed that prospects are materially different in that other Member State (Dumliauskas [46], [52]-[53] and [59]).
9. Matters that are relevant when examining the prospects of the rehabilitation of offenders include family ties and responsibilities, accommodation, education, training, employment, active membership of a community and the like (Essa (2013) at [34]). However, lack of access to a Probation Officer or equivalent in the other Member State should not, in general, preclude deportation (Dumliauskas [55])
10. In the absence of integration and a right of permanent residence, the future prospects of integration cannot be a weighty factor (Dumliauskas [44] and [54]). Even when such prospects have significant weight they are not a trump card, as what the Directive and the 2006 EEA Regulations require is a wide-ranging holistic assessment. Both recognise that the more serious the risk of reoffending, and the offences that a person may commit, the greater the right to interfere with the right of residence (Dumliauskas at [46] and [54])."
18. That is the basis on which I proceed to examine this appeal and remake the decision.
Discussion
19. The claimant has a permanent right of residence and accordingly, rehabilitation is a factor which must be considered in his case. Although he is a citizen of the Netherlands, he has lived in the United Kingdom since he was 12. He is now 22 years old. He committed an offence in 2013, when he was 19 years old, pleaded guilty and went to prison without challenging either the conviction or the sentence.
20. I accept that the claimant's offending conduct in 2013 was serious, but the sentencing Judge accepted that it was out of character and inexplicable, and nothing of the kind has occurred again. I bear in mind the following positive observations in the sentencing Judge's remarks in 2013:
"It is noteworthy that you are regarded as a low risk of reoffending and a medium risk of serious harm through violence. For these reasons, I have determined that this is not a case which needs to engage the dangerousness criteria, so that issue is now put to one side. ? This was a very mean and nasty offence: coming from the background that I have read that you come from?it is probably a mystery to all, including perhaps to yourself, how it is that you became involved in such a serious offence, against a background of what appears to be a virtually impeccable character. I do know that you have two cautions, you have no convictions. I treat you for the purposes of this sentencing exercise as a man of good character. You come from a secure and loving family and this action, or these actions, are completely out of character. ?"
21. In prison, the claimant stayed out of trouble. He took employability and peer mentoring courses. The Secretary of State's criticism of the claimant for not taking other courses which might have been available to him seems to me to be neutral to the outcome of the appeal, on the facts.
22. Although he has stayed out of trouble since coming out of prison, the evidence before me is not that his rehabilitation is complete, but rather, that there is no cause for concern and has not been for several years now.
23. The claimant's personal conduct since he left prison bears out the NOMS assessment that he presents a low risk of reconviction. He has not been in trouble. Nothing has brought him to the attention of the authorities. Despite being unable to work or study, and having to rely financially and emotionally on the women in his life (his mother, sister and partner), it is not suggested that he has returned either to crime or to cannabis use.
24. The Secretary of State has not satisfied me, on the balance of probabilities, that the claimant's personal conduct now represents a genuine, present and sufficiently serious threat affecting one of the fundamental interests of society, and the issue of proportionality under Regulation 21(5) and 21(6) is therefore not engaged. The Secretary of State's decision was taken while the claimant was still in prison, and is not based on the claimant's present personal conduct: it is based on his conviction, on the basis that when released the claimant would return to crime and cannabis. Neither has occurred.
25. As regards Regulation 21(6), I find that the claimant is socially and culturally integrated into the United Kingdom, where he has spent more than half his life, and all his adult life, living with close family members, and where he had all his secondary schooling. His links with his country of origin, the Netherlands, go back to when he was a child of 12 with a violent father. His principal parent has been his mother, since she fled the Netherlands to escape his father. He is, of course, still a young man and there are no known health problems, but all of his family (mother, sister and partner) are in the United Kingdom.
26. I do not find, having regard to the test of serious grounds of public policy, that the Secretary of State has discharged the burden upon her under of showing that there is any present risk, still less one at the level required by Regulation 21(5)(c). I find that the Secretary of State's decision is caught by Regulation 21(5)(e), in that the previous conviction, which is all that stands against the claimant, cannot of itself justify deportation.
27. Accordingly, the deportation of the claimant to the Netherlands is unlawful and the Secretary of State's appeal fails. I remake the decision in favour of the claimant.
DECISION
28. The decision of the First-tier Tribunal has been set aside for error of law. I remake the decision by allowing the claimant's appeal.

Date: 21 December 2016 Signed: Judith A J C Gleeson
Upper Tribunal Judge Gleeson