Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: DA/00264/2016

THE IMMIGRATION ACTS

Heard at Glasgow
Decision & Reasons Promulgated
On 28 October 2016
On 01 November 2016

Before

UPPER TRIBUNAL JUDGE MACLEMAN

Between

S G AGEROAE
Appellant
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT

Respondent

For the Appellant: Mr K H Forrest, Advocate, instructed by LKW, Solicitors
For the Respondent: Mr M Matthews, Senior Home Office Presenting Officer

DETERMINATION AND REASONS
1. The appellant appeals against a determination by First-tier Tribunal Judge Lea, promulgated on 22 August 2016, dismissing his appeal against deportation under the Immigration (EEA) Regulations 2006.
2. The grounds assert that the judge gave manifestly excessive weight to the appellant's most recent conviction, which she had described as not particularly serious; erred in relation to the burden of proof, which was on the respondent not the appellant; and as the recent conviction was not serious and previous convictions were almost 10 years ago, the conclusion of a propensity to reoffend was irrational.
3. Mr Forrest submitted as follows. He did not wish to add to the grounds going to the weight given to the most recent conviction. The grounds going to the burden of proof, and to rationality, together showed material error. The judge said at paragraph 9 "the burden of proof is on the appellant", which is plainly wrong: SSHD v Straswzewski [2015] EWCA Civ 1245, paragraph 12. There were before the judge 2 categories of conviction, the earlier ones in Romania and recently in the UK. Separately, neither category could justify the conclusion of a propensity to offend. Considered correctly and in the round, they could not rationally do so even in combination. The evidence was simply not there to show that the appellant presented any genuine, present or sufficiently serious threat. The two categories of conviction were entirely different in time, place, and circumstances. There was no conjunction between them. That showed the decision to be irrational, and it should be reversed.
4. In a rule 24 response the respondent runs as follows. The grounds amount to no more than disagreement with the findings. The weight to be attached to the convictions was a matter for the judge. She properly directed herself in law regarding whether or not the appellant represented a present, genuine and sufficiently serious threat. She recognised that the previous convictions in Romania were some time ago but the recent offence, although minor, was an offence against person and property and involved violence. The judge was entitled to conclude that the appellant still had a propensity to reoffend. She also properly directed herself that previous offences cannot solely justify deportation. She engaged with the appellant's circumstances in the UK: he was not living with his partner; his partner put his name on her child's birth certificate, despite his not being the father, after the threat of deportation; the partner's family had various problems, not indicative of helping the appellant's rehabilitation. Taking all these factors into account, the judge was entitled to conclude that deportation was proportionate under the regulations.
5. Mr Matthews accepted for purposes of this case that the judge did go wrong on the burden of proof (although he said the matter was not entirely free from doubt, there being an earlier decision to contrary effect, to which the Court in SSHD v Straswzewski was not referred.) He submitted thus. Paragraph 9 was no more than the use of a standard paragraph, a "cut-and-paste" type of error, and did not reflect what the judge actually applied in her decision. She said at paragraph 6 that what she had to decide was whether or not the decision of the respondent complied with the principle of proportionality, which set the bar the other way, and set it too high. Her discussion of the facts did not suggest that she was deciding whether the appellant had discharged the burden, rather she was assessing whether serious grounds existed. There might have been a slip, but no overall error. The remaining grounds did not reach the high target of showing irrationality. The decision was well within the scope of the judge. Another judge might have decided differently, but that was immaterial. This was not a case with only one possible outcome. The judge accepted that it was 10 years since the offending in Romania, and that the appellant has been at liberty and remained free of convictions for some 7 years. However, his offences in Romania had a serious and a violent character. The judge was entitled to look at the nature of the offending in both categories, including the circumstances giving rise to the offending in the UK. Although of a more minor character, that did involve kind of violence, although directed against property rather than directly against the person, and it arose in a domestic context. The information the judge had about the appellant's circumstances, which came from evidence led on his behalf, was all relevant. There was no quarrel with the finding that he was living within a volatile domestic context. The judge reached a finding well within her scope and gave specific and legally adequate reasons. The outcome might be unwelcome to the appellant, but it was not shown to be legally flawed.
6. Mr Forrest in response renewed his submission that the judge's conclusion was irrational, on the evidence before her.
7. I reserved my determination.
8. The judge did not treat this as a case so finely balanced that it eventually turned on where the onus lay. She decided it on all the evidence which had emerged and according to the criteria in terms of the regulations.
9. Reading the decision fairly and as a whole, the reference at paragraph 9 to a burden of proof on the appellant is only a standard recital which has been left unrevised, and not part of the decisive passages. It is an immaterial slip.
10. The weight to be given to various aspects of the evidence was for the judge, within the bounds of rationality. Her reasons are stated. None is shown to be incorrect.
11. Broadly, I prefer the submissions for the respondent, for the reasons given. The case for the appellant in substance is only renewal of the case he put to the FtT, and disagreement with its overall conclusion. However, that conclusion was open to the FtT, and its decision is an adequate explanation to the appellant of why it was reached.
12. The determination of the First-tier Tribunal shall stand.
13. No anonymity direction has been requested or made.

31 October 2016
Upper Tribunal Judge Macleman