Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: DA/00271/2015

THE IMMIGRATION ACTS

Heard at: Field House
Decision & Reasons Promulgated
On: 20th June 2016
On: 29th September 2016

Before

UPPER TRIBUNAL JUDGE BRUCE

Between

Secretary of State for the Home Department
Appellant
And

Audrone Siniciene
(no anonymity direction made)
Respondent

For the Appellant: Mr Walker, Senior Home Office Presenting Officer
For the Respondent: no appearance

DECISION AND REASONS

1. The Respondent is a national of Lithuania date of birth 3rd February 1965. On the 16th June 2015 she was made subject to a deportation order under the Immigration (European Economic Area) Regulations 2006. The case was certified with reference to Regulation 24AA of the same Regulations and she was deported to Lithuania.

2. So it was that when the matter came before the First-tier Tribunal Ms Siniciene was not present. Nor was she represented. A copy of the notice of hearing had been served on her last known representatives; so too subsequently a copy of the First-tier Tribunal's determination. No Rule 24 response has been received by the Upper Tribunal and it is not known whether Ms Siniciene is even aware that her appeal was allowed at first instance. In view of these matters, I took the view that it would not be in the interests of justice to adjourn the proceedings. Although it would be far preferable if the the Respondent were able to take part, or at least communicate her views to the Tribunal, there was nothing to suggest that contact would be re-established so as to ensure that she could take part in proceedings at a future date.

Background and Matters in Issue before the First-tier Tribunal

3. It is believed that Ms Siniciene came to the United Kingdom sometime in March 2007. The Secretary of State accepts that she was exercising treaty rights between her arrival and 2011, and then again in 2013-14. The Secretary of State identified a gap in 2012 when it is not clear what the Respondent was doing in the United Kingdom. The Secretary of State relied on that gap to conclude that the Respondent had not been exercising treaty rights for a continuous period of five years or more. She did not therefore quality for any 'enhanced protection' under the scheme at Regulations 19 and 21.

4. The matter which brought the Respondent to the Secretary of State's attention was that on the 17th November 2014 she was sentenced to 33 months' imprisonment upon conviction for six offences of conspiring/assisting illegal immigration. The sentencing remarks of Mr Recorder Craven summarises the background to those convictions. Ms Siniciene had, over a period of approximately two years, been instrumental in the organisation of sham marriages, entered into for the purpose of circumventing immigration control. She had personally recruited six Polish or Lithuanian women in order to marry non-EEA nationals and acted as their chaperone at the wedding ceremony. Although she was not found to be at the top of the organisation, she clearly played an essential role in the operation.

5. The Secretary of State directed herself to the principles set out at Regulation 21(5). This was a very serious offence. Although the 'offender manager' had assessed the Respondent's risk of reoffending as low, the Respondent took the view that the serious harm which would be caused as a result of any similar instances of offending is such that it would not be reasonable to leave the public vulnerable to the potential that she might reoffend. The Respondent was found to have a lack of remorse for her behaviour and overall the conclusion reached was that she continued to pose a risk. It would in all the circumstances be proportionate to remove her.

6. On appeal the Tribunal was required then to first to assess whether Ms Siniciene had in fact acquired any enhanced protection rights by virtue of her length of residence, and second whether her deportation was justified under Regulations 19 and 21.

The Determination

7. The first matter was resolved in the Secretary of State's favour. In the absence of any evidence as to what Ms Siniciene was doing in 2012 the Tribunal found that she had not shown herself to be resident in accordance with the Regulations for a continuous period of five years or more.

8. As to the second matter the Tribunal directed itself to the terms of the Regulations, and to jurisprudence of the CJEU concerned with the removal provisions. Having reviewed that jurisprudence the Tribunal concluded that criminal offences can only in themselves constitute grounds for deportation where the circumstances which had given rise to the conviction were evidence of personal conduct constituting a present threat to the requirements of public policy: "The ECJ thus seems clear that the evidence (including past criminality) must establish a future risk to society for any removal to be justified". As to the circumstances of Ms Siniciene's offending the determination sets out the sentencing remarks at length. The Secretary of State's view as to the seriousness of the offences is noted in detail. Having considered those matters the Tribunal proceeds to examine the evidence as to current/ future risk.

9. The only professional assessment before the Tribunal about the Respondent's propensity to reoffend was the OASys report completed by the Probation Service on the 4th February 2015. The Respondent was found to have a low risk of probability of proven reoffending, a low risk of probability of proven non-violent offending and a low risk of probability of proven violent type offending. The Tribunal accepted this professional assessment. At various points the OASys report makes clear that on any scale of assessment, the Respondent presented as a low risk. In answer to the question "is the offender motivated to address offending?" the answer is recorded "very motivated".

10. Assessing that evidence against the tests set down in Regulation 21(5) the Tribunal reminds itself that it is not permissible to deport an EEA national simply because of a past conviction, or to deter others. It is for the host state to demonstrate that the deportee represents a genuine present and sufficiently serious threat affecting one of the fundamental interests of society. In respect of rehabilitation as a relevant factor it has regard to the guidance in Essa v SSHD [2013] UKUT 00316 (IAC). It accepts that there is a strong public interest in deporting those who participate in a large scale commercial fraud to facilitate illegal entry by use of fraudulent practices and documents. That said, the Tribunal finds the offence not to be as significant as say, offences of illegal dealing in narcotics or the sexual abuse of children. Weighing all of that in the balance the Tribunal concludes that the Respondent's deportation cannot be justified. The Secretary of State has not shown that her conduct represents a genuine present and sufficiently serious threat affecting one of the fundamental interests of society. In all the circumstances the Tribunal does not consider deportation to be proportionate.

11. The Tribunal went on to consider Article 8 ECHR. The appeal was allowed on the grounds that the decision had not been shown to be proportionate interference with Ms Siniciene's family life in the UK. The Respondent had been living with her widowed daughter and grandson in Peterborough prior to her imprisonment and deportation. Having regard to those relationships and to the fact that she had been living in the UK for some time the Tribunal found Article 8 to be engaged. The Tribunal directed itself to consider the criteria set out in Uner and having done so found the Respondent's removal to be disproportionate and allowed the appeal with reference to Article 8 ECHR.

Error of Law

12. The second ground concerns whether adequate reasons were given for allowing the appeal on human rights grounds. I need not deal with this ground in any great detail save to say that it is plainly made out since the reasoning on proportionality makes no reference at all to ss117A-D of the Nationality, Immigration and Asylum Act 2002. The Article 8 reasoning was thereby flawed in law and that part of the decision cannot stand. As Mr Walker acknowledged, this makes no difference at all to Ms Siniciene if the Tribunal's decision in respect of the EEA Regulations is upheld.

13. The challenge to the findings on Regulation 21(5) is that there has been a paucity of reasoning. The Secretary of State submits that the Tribunal has failed to give adequate reasons in several key respects. I deal with each in turn.

14. It is submitted that the Tribunal has failed to consider whether there have been any attempts at rehabilitation in the UK or whether the Respondent could be rehabilitated in Lithuania. It is further submitted that the Tribunal has failed to consider the fact that the presence of the Respondent's grandchild and daughter in the UK did not prevent her offending. This is, with respect, not a ground that is going to be capable of demonstrating any materiality. The only evidence before the Judge that went to future risk of reoffending was the OASys report. That comprehensively concluded that she was at a low risk of reoffending on a number of scales. Other than that the Tribunal had not been furnished with any information one way or the other. The Secretary of State asserted (and this is repeated in the grounds) that the Respondent had refused to take responsibility for her involvement in the offence; whilst this was the case at the date of sentencing it would not appear to have featured in the subsequent conclusions reached by the Probation Service who found her to be "very motivated" to address her offending behaviour. Having had regard to that report, and presumably the fact this was a woman who at nearly 50 years old had never been convicted of any other offence, the Tribunal was entitled to conclude that she presented a low risk of reoffending. One wonders then why the Tribunal would be moved to conduct a forensic analysis of which country would offer her the best prospects of rehabilitation.

15. The remaining particulars all relate to whether the Tribunal did enough to justify its conclusion that the Respondent's conduct did not present a sufficiently serious threat to one of the fundamental interests of society. Most of these are express disagreements with the conclusions reached. The Secretary of State's strongest point is that the Tribunal arguably seeks to minimise the seriousness of the offence by comparing it to drugs trafficking and child abuse. The Secretary of State is understandably at pains to point out how serious an offence this was. I have considered Mr Walkers well made submissions on this point. I am however satisfied that this is something that the Tribunal was cognizant of at all times. The point made about other types of offences did not serve to exclude this type of offence from the category of "serious offences", but the Tribunal was properly drawing examples from the caselaw as to what kind of offending behaviour might ordinarily reach the threshold set in Reg 21 (5). Overall I am satisfied that this was a conclusion open to the Tribunal on the evidence before it and that clear reasons have been given: on the facts the Secretary of State simply could not establish that there was a sufficiently serious future risk of reoffending.

Decisions

16. The First-tier Tribunal erred in its approach to Article 8 but that error was not such that the decision should be set aside. That is because the decision in respect of the Immigration (European Economic Area) Regulations 2006 contains no error of law and it is upheld. The Secretary of State's appeal is dismissed.

17. I make no order for anonymity.

Upper Tribunal Judge Bruce
29th September 2016