Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: DA/00267/2016

THE IMMIGRATION ACTS

Heard at Glasgow
Determination issued
On 20 December 2016
On 22 December 2016

Before

UPPER TRIBUNAL JUDGE MACLEMAN

Between

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT

Appellant
and

L M ZYGMUNT

Respondent

For the Appellant: Mrs M O'Brien, Senior Home Office Presenting Officer
For the Respondent: no appearance

DETERMINATION AND REASONS
1. Mr Zygmunt is a citizen of Poland, born on 17 November 1984. The SSHD advised him on 2 March 2016 of her intention to make a deportation order against him under the Immigration (EEA) Regulations 2006, on grounds of his criminal convictions. He did not respond. Unsurprisingly, under the circumstances, the SSHD proceeded to make a deportation order, dated 12 April and served on 3 June 2016.
2. Mr Zygmunt appealed to the FtT. At the hearing of his appeal before Judge Frankish on 30 August 2016, his representative led evidence of his family and other circumstances, of most of which the SSHD was not aware, and had no reason to be aware, when making her order.
3. The appeal was allowed by decision promulgated on 8 September 2016.
4. The SSHD sought permission to appeal to the UT, on grounds which insist that Mr Zygmunt presents "a remaining risk of recidivism"; that there is "no evidence" that he has "addressed his offending behaviour in any way"; that there is nothing in his relationship with his current partner or with his mother, who could accompany him to Poland, to tilt the balance over the public interest in his deportation; and nothing to show that there would be an effect on the two children of his previous relationship such that removal would "cause a disproportionate response" to his offending.
5. On 27 September 2016 FtT Judge Kimnell refused permission, on the view that the grounds were "really no more than submissions on the merits". On renewal of the same grounds, however, UT Judge Chalkley on 9 November 2016 granted permission.
6. Notice of the hearing on 20 December was issued on 29 November. By a letter which appears to be undated, received on 12 December, Mr Zygmunt's representative sought an adjournment, based on another court engagement and being unable to instruct anyone else "due to festive Xmas time". The UT refused that application by letter dated 16 December. It was renewed by letter received on 19 December and again refused on that date.
7. There was no appearance by or for Mr Zygmunt on 20 December. No further communication had been received.
8. Under those circumstances, there was no reason for the case not to proceed in absence of Mr Zygmunt or any representative on his behalf.
9. Apart from any other considerations, I note that there is on file no rule 24 or other response to the SSHD's grounds. The time and effort put into poorly justified applications for adjournment might have been better applied to presenting a written submission.
10. Mrs O'Brien made submissions in support of the grounds.
11. I indicated that the SSHD's appeal would be dismissed.
12. The decision of the SSHD is exactly as might have been expected, on the information (or lack of information) before her, after giving Mr Zygmunt the chance to explain his position.
13. On the evidence as it emerged before the FtT, the case was perhaps one which might reasonably have been decided ether way. Some of the judge's findings are perhaps more generous, or at least more generously worded, than other judges might have found. However, there is nothing in the grounds to undermine the judge's crucial finding at paragraph 20 that the requirement of a continuing threat is not made out, and nothing to show that his conclusion on proportionality is not well within his reasonable scope. The grounds are in essence no more than reassertion of one side of the case, without showing that resolution of the case in favour of the other side involved the making of any error on a point of law.
14. The determination of the First-tier Tribunal shall stand.
15. No anonymity direction has been requested or made.

20 December 2016
Upper Tribunal Judge Macleman