Tribunal decisions

The decision

IAC-FH-NL-V1

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: DA/00292/2016

THE IMMIGRATION ACTS

Heard at Royal Courts of Justice
Determination Promulgated
On 6 March 2017
On 8 March 2017

Before

UPPER TRIBUNAL JUDGE KOPIECZEK

Between

ALI FARAH
Appellant
and

Secretary of State for the Home Department
Respondent

Representation:
For the Appellant: The appellant in person
For the Respondent: Mr T Melvin, Senior Home Office Presenting Officer

DECISION AND REASONS
1. This appeal comes back before me following a hearing on 31 October 2016 whereby I set aside the decision of the First-tier Tribunal (“FtT”) which had allowed the appellant’s appeal against a decision to make a deportation order under the Immigration (European Economic Area) Regulations 2006 (as amended) (“the EEA Regulations”).
2. In order to provide a comprehensive picture of the background and circumstances of this appeal, and to avoid repetition, I reproduce my earlier error of law decision in full at this point, as follows:

“DECISION AND DIRECTIONS
1. Although the appellant in these proceedings is the Secretary of State, I continue to refer to the parties as they were before the First-tier Tribunal (“FtT”).
2. Thus, the appellant is a citizen of the Netherlands, born on 1 July 1978. A decision was made on 28 April 2016 to make a deportation order against him under the Immigration (European Economic Area) Regulations 2006 (“the EEA Regulations”) following his convictions for criminal offences. His appeal against that decision came before First-tier Tribunal Judge M J Gillespie (“the FtJ”) on 31 August 2016 whereby the appeal was allowed with reference to the EEA Regulations.
The First-tier Tribunal’s decision
3. The FtJ referred to the appellant’s history of offending, which seems to have amounted to eight convictions for 10 offences between 19 August 2011 and 11 March 2016. The FtJ referred to the appellant’s immigration history whereby he apparently came to the attention of the respondent following his arrest in September 2015 for what the FtJ identified as offences of handling stolen goods and criminal damage. The appellant was apparently given written notice dated 29 October 2015 that should further offences be committed he may be deported.
4. At [7] the FtJ stated that although the appellant was supported by various family members, namely two sisters and two brothers who were at the hearing, and despite having been given the opportunity to call them as witnesses, he did not seek to adduce evidence from them. At [8] the appellant’s factual background was summarised to the effect that he left Somalia in about 1991 when he was about 13 years of age and arrived in the Netherlands in about 1993 “where he apparently was granted protection”. He attained Dutch citizenship in about 1998 and worked in the Netherlands until 2003 when he came to the UK where he has 10 siblings. From about 2003 he claims to have worked at the Dorchester Hotel.
5. The appellant ceased employment and started abusing alcohol and illicit drugs. He claimed to be suffering from mental illness although had received no treatment for mental illness. He reported that he had been prescribed sleeping tablets and other medications that he could not recall.
6. At [9] the FtJ referred to the appellant as having claimed to be married to a Dutch national with whom he has four children, also Dutch nationals. Those children were born in the UK, the eldest being about 13 years of age although the appellant could not remember the ages of the other children. He was divorced some five years ago and last saw his children about a year and a half ago. He could not remember the names of their schools and apparently forgot even to mention them until prompted by one of his siblings at the hearing. Those children are supported by their mother. The appellant claimed that he had no family in the Netherlands.
7. Under the subheading of “Finding of facts” the FtJ concluded that the appellant’s account was substantially deficient in detail and particularity, giving the impression of evasiveness, truculence and mendacity. He said that the appellant had made no attempt to support his claim to have been present in the UK for any length of time and had made no attempt to prove his claimed past employment. The FtJ went on to state however, that despite the very poor impression that he gave, there was substantial reason to consider that this might be indicative of some degree of vulnerability as a witness, whether because he is affected by past drug or alcohol abuse or by emotional or mental disturbance, or simply by having no independent advice and representation.
8. As to his reasons for coming to those views, the FtJ said that the appellant did admit, contrary to his own interests, past abuse of drugs and alcohol. He claimed a period of past breakdown of some sort which had left him with defective recollection. In cross-examination it was revealed that the appellant had in the past acknowledged abuse of drugs or alcohol and had been found in possession of drug paraphernalia. The FtJ said that it was particularly significant to him that the appellant had refused to call the evidence of his siblings who attended the hearing and that he appeared to say all that he wished to say concerning the appeal.
9. The FtJ then recorded as follows:
“At the close of evidence and of such submissions as the appellant wished to make I intimated my intention to reserve judgement. As the appellant was leaving the courtroom, one of his siblings spoke to the interpreter, who then informed the court that it was said that the appellant ‘had forgotten to mention his children in the country and is mentally ill because of his wife’.”
10. The FtJ then said that that caused him to re-open the hearing forthwith upon which the appellant stated the history of his former marriage, as summarised above, named his children, and affirmed the fact of his divorce, his lack of contact with his children and the consequences to him mentally or emotionally from his personal circumstances. The FtJ recorded that although there still remained no documentary evidence of any such matters, it was perfectly clear that the children and ex-wife must exist and that the failure even to mention them suggests strongly a degree of vulnerability and inability properly to express himself. He went on to state as follows:
“The seeming synchronicity of the appellant’s unprompted statement that he divorced five years previously, with his own descent into crime, is supportive of his own statement that he lost his job and descended to vagrancy, substance abuse and crime following significant personal loss.”
11. In the next paragraph the FtJ said that taking the fairest assessment he could of the evidence and bearing in mind the complete lack of documentation, but weighing against that the strong indications of significant vulnerability of the appellant, he then found that the appellant had established that he probably entered the UK from about 2003, with a Dutch wife, by whom he has had in the UK four children, the eldest being aged 13 years. He had therefore been in the UK for no less than about 13 years. He had however failed to establish that he was more than likely employed or otherwise exercising Treaty rights throughout that time. Accordingly, he had failed to establish that he had acquired a permanent right of residence through five years’ continuous exercise of Treaty rights.
12. He further concluded that the appellant had throughout the previous five years been of no proven fixed abode and of no apparent occupation, and is likely during that time to have been supported by siblings but also to have been involved in substance abuse which has led him to criminal and antisocial conduct.
13. Applying the framework of the EEA Regulations it was concluded that the appellant’s deportation could only be effected on imperative grounds of public security given the finding that he had established a continuous period of 10 years’ residence.
14. He concluded that as late as October 2015, when the appellant’s criminal record was “not significantly less deleterious” than it was at the time of the hearing, he had only attracted one further conviction for which he was given a suspended sentence of eight weeks, and the decision taken not to deport him. The decision not to pursue deportation action against him on the part of the respondent was, the FtJ said, based on the perception that the appellant had only been in the UK since about May 2015 and had not acquired a right of permanent residence. He concluded that the single further offence since that date scarcely enhanced the risk that the appellant represented.
15. He concluded that absent appropriate treatment, and despite the support of his siblings, the appellant represents a moderate threat of further offending, at the very low level already exhibited. He referred to the appellant’s offences as “petty offences”, largely of dishonesty, committed in circumstances of drunkenness which leads to petty violence or abuse against officers of the law when arrested. He referred to only one offence having attracted any significant imprisonment, that being for a period of 16 weeks, and offending at that level had not been repeated. He therefore concluded that the appellant does not pose a significant risk to the public and it was not shown that the appellant presents a threat to the public interest. He found that the appellant does not represent a genuine, present and sufficiently serious threat affecting one of the fundamental interests of society.
16. Referring to various authorities, he said that considerations relevant to proportionality, such as integration and prospects of rehabilitation only become relevant if the person’s conduct represents a genuine, present and sufficiently serious threat affecting one of the fundamental interests of society, and in this case the appellant did not represent such a threat.
The grounds and submissions
17. The over-lengthy grounds of appeal to the Upper Tribunal contend that the appellant had failed to establish that he had acquired a permanent right of residence and accordingly could not acquire protection against deportation on imperative grounds of public security without having first established a permanent right of residence.
18. The appellant claimed to have arrived in 2003 but had provided no evidence of that assertion, despite having been afforded numerous opportunities to provide such evidence and to make representations.
19. It is further argued that the FtJ was wrong in law to conclude that the evidence did not establish that the appellant represented a genuine, present and sufficiently serious threat affecting one of the fundamental interests of society. In part, it is said that the error arose because the wrong threshold of imperative grounds had been applied, but also because the FtJ wrongly concluded that after the warning letter was given to the appellant he had only committed one offence, whereas in fact he had been convicted on two further occasions. He had thus demonstrated a propensity to re-offend. Furthermore, his record of offending was indicative of a risk of re-offending. Reference is made in the grounds to the offences of common assault, having a bladed article and offences of dishonesty. The appellant was a persistent offender.
20. So far as rehabilitation is concerned, it is argued in the grounds that the evidence does not support the FtJ’s conclusions that the prospects of rehabilitation are more potent in the UK than in the Netherlands.
21. The FtJ’s conclusions on proportionality are also criticised in terms of the conclusion that the appellant had failed to show that his rehabilitation was well advanced, and his family had failed to exert any control over him since he had been in the UK. The claim that he has an ex-wife and four children was not supported by any evidence. In any event, the appellant had had no contact with them for over a year and a half. He had been unable to provide details of his children’s ages or the schools they had attended. It is contended that the FtJ’s sympathy towards the appellant’s claimed mental illness had overshadowed his assessment of the whole appeal and had infected the overall findings. There was no evidence that the appellant did suffer from any mental illness.
22. Mr Melvin relied on the grounds, as well as referring to the decision in Secretary of State for the Home Department v Franco Vomero (Italy) [2016] UKSC 49, in support of the contention that the appellant needed to acquire a permanent right of residence before he could be considered to have accrued 10 years’ residence sufficient to mean that he was able to resist deportation on imperative grounds. On that issue the Supreme Court had made a reference to the CJEU.
23. In terms of the appellant’s offending, the FtJ had underestimated the seriousness of the offences, which included assault and having a bladed article. The FtJ was wrong to have described the offences as “petty”.
24. As to the arguments advanced on behalf of the respondent, and in answer to my summary of those points, the appellant said that he had no evidence of his arrival in 2003 in terms of documents. He is not a danger to society. He said that he can speak Dutch. He also said that before the FtJ his family had made some statements regarding his situation but they were not allowed to take part in the hearing. As far as he remembered they did not say that much.
25. Mr Melvin accepted that in relation to the offences that the appellant had committed it could not realistically be argued on behalf of the respondent that if the appellant had the benefit of protection against deportation on imperative grounds those offences would meet that threshold. It was also submitted however, that the evidence suggested that there had been a lack of integration on the part of the appellant over the period of time that he had been in the UK.
My conclusions
26. It is not entirely clear from the grounds of appeal to the Upper Tribunal whether or not the FtJ’s conclusion that the appellant had been in the UK since 2003 is challenged. The point about whether he needs to have acquired a permanent right of residence before being able to achieve protection on imperative grounds is a separate point. The grounds in actual fact only assert the respondent’s case which is that he had provided no evidence of continuous residence in the UK since he arrived, but no reasoned challenge is advanced in relation to the FtJ’s conclusions in this respect.
27. The FtJ was well aware of the fact that the appellant had not provided documentary evidence of his residence, a matter which the FtJ referred to at [14] and [16]. It is not simply a case of the FtJ blindly accepting any and every assertion made by the appellant. For example, he rejected the claim that he had been employed or was exercising Treaty rights throughout the period of his residence.
28. Furthermore, it is apparent from the FtJ’s conclusions that the hearing before him was a very unusual one, the FtJ having decided to re-open the hearing on information provided by a person said to have been one of the appellant’s siblings. That was an entirely proper course of action, indicating appropriate flexibility as to the hearing procedure on the part of the FtJ, adopted to promote a just disposal of the appeal in accordance with the overriding objective in rule 2 of the Tribunal Procedure (First-tier Tribunal) (Immigration and Asylum Chamber) Rules 2014. The FtJ was entitled to conclude, having heard the appellant’s further evidence, that the appellant did have children and had been married, and that his failure to mention his ex-wife and children suggested a strong degree of vulnerability and inability properly to express himself. The FtJ noted the “synchronicity” of the appellant’s claimed divorce with his criminal offending and substance abuse.
29. Although it is asserted on behalf of the respondent that in order to qualify for protection from removal on imperative grounds the appellant needs first to establish that he has a permanent right of residence, no authority for that proposition is cited in the grounds and none was referred to at the hearing before me. It is true to say, as is apparent from the decision in Franco Vomero (Italy), that there are competing arguments in relation to this issue. The Supreme Court referred just that question to the CJEU. However, I also note that at [27] it is stated that a majority of the Court favoured the view that possession of a right of permanent residence is not needed in order to enjoy the enhanced protection under Article 28(3)(a) of Directive 2004/38/EC (imperative grounds). I respectfully adopt the position of the majority of the Supreme Court and conclude that possession of a right of permanent residence is not necessary in order to enjoy the enhanced protection of imperative grounds.
30. However, I do nevertheless part company with the FtJ’s conclusions in other respects.
31. The respondent’s decision to make a deportation order was made on 28 April 2016. It is clear from the decision in MG v Secretary of State for the Home Department Case C-400/12 [2014] 2 CMLR 40 that the relevant 10 year period is to be counted back from the date of the expulsion decision. On 7 September 2015 the appellant received a sentence of 16 weeks’ imprisonment for an offence of common assault, with seven days to run concurrently for failing to surrender to bail. In principle therefore, and in accordance with the decision in MG, his period of imprisonment is capable of breaking the continuity of his residence. Although the position is not entirely clear from the authorities, I proceed on the assumption that his period of residence prior to imprisonment is capable of being taken into account in terms of integration, and therefore accrual of the 10 years’ residence.
32. The FtJ did not take into account that the period of residence needs to be counted back from the date of the expulsion decision. Nor did he take into account in that context the period of imprisonment to which the appellant was subject at that time. Whilst I am prepared to assume that his residence prior to imprisonment can be taken into account in assessing whether he has accrued 10 years’ residence, these are not matters that featured in the FtJ’s decision. These are significant matters because it seems to me that there was an absence of evidence before the FtJ in relation to the extent of the appellant’s integration in the years before he started committing offences. Certainly, there was a lack of evidence as to his exercising Treaty rights, such evidence being indicative of integration.
33. The FtJ concluded that the appellant represented a “moderate” threat of further offending. If the FtJ meant by that that there was a medium risk of re-offending, that would be a conclusion that is inconsistent with his repeated offending in 2015 and 2016. His first offence occurred in 2011 with a gap after that until February 2015. The FtJ described his offending as petty offences, largely of dishonesty, committed in circumstances of drunkenness which lead to petty violence or abuse against officers of the law when arrested. He referred to only one of the offences attracting any significant imprisonment, being a period of 16 weeks, and that offending at that level had not been repeated.
34. It appears that on 29 October 2015 the appellant was sent a warning letter by the Home Office that further offending may result in his deportation. The FtJ said that since the date of that letter he had only committed one more offence, the FtJ referring to his suspended sentence of imprisonment of eight weeks for an offence of making false representations committed on 23 November 2015. He was convicted on 8 January 2016 of an offence of handling stolen goods, but that offence appears to have been committed on 5 April 2015, and if that is the case the FtJ was correct in his conclusion that the appellant had only committed one offence since the warning letter, and the complaint made in the grounds in this respect is not made out.
35. However, whilst it could be said that some of the offences were, in relative terms, minor, an offence of common assault attracting a period of imprisonment of 16 weeks is not properly categorised as a petty offence. The appellant has also been convicted of damaging property, using threatening, abusive or insulting words or behaviour, and possessing a bladed article in a public place. Those are offences which can have a potentially significant effect on the victims, and the possession of a bladed article has the potential to lead to serious injury. In these circumstances, I consider that there is merit in the respondent’s grounds in taking issue with the FtJ’s assessment that the appellant does not pose a significant risk to the public. That in turn has an impact on the FtJ’s further conclusion that the appellant does not represent a genuine, present and sufficiently serious threat affecting one of the fundamental interests of society.
36. In summary, I am satisfied that the FtJ’s conclusions in terms of the appellant having accrued 10 years’ residence and therefore protection against expulsion on imperative grounds, and his conclusions in terms of the risk that the appellant poses, are conclusions that are legally flawed. They are such as to require the decision to be set aside.
37. I do not consider that it is appropriate for the appeal to be remitted to the FtT in the light of some findings of fact which can be preserved. I have reflected on whether it is appropriate simply to re-make the decision on the basis of the information presently before the Tribunal. However, in the light of the matters set out in the FtJ’s decision about the appellant thus far having failed, for whatever reason, to provide evidence of his circumstances, it seems to me that I should afford him and/or his family the opportunity of providing further information to the Tribunal so as to allow for as full an assessment of his circumstances as possible.
38. In those circumstances, there will be a fresh hearing before the Upper Tribunal. Because the appellant is unrepresented he should very carefully consider the directions that I give below, which provide him with an opportunity to present his case in the best possible light. He would be well advised to show this written decision of mine to his siblings.
DIRECTIONS
1. The appellant is to provide to the Tribunal, preferably in advance of the next hearing, copies of all documents in relation to his marriage, employment and his children, and generally in relation to his circumstances in the UK.
2. The appellant should show this decision to his family members, in particular those who attended the hearing before the First-tier Tribunal, so that they may be able to assist him in providing that documentation.
3. The appellant should ask members of his family to attend at the next date of hearing.”
3. At the resumed hearing on the above date, notwithstanding the directions that I gave in the error of law decision as set out in the paragraph above, no relative of the appellant attended and no documents were provided to the Tribunal by or on behalf of the appellant.
4. I heard evidence from the appellant which I summarise. He gave evidence in Somali.
Oral evidence
5. In answer to my questions the appellant said that he did not inform his relatives of the hearing. He said that the person in the detention centre who helped him ‘prepare the documents’ told him that he did not need to inform his relatives of the hearing.
6. The appellant then said that he is “not normal”, has mental problems and is confused. He questioned why he was still detained. He is unable to remember what he did the day before yesterday, he said. There is no doctor in the detention centre and they do not even give him a painkiller let alone any other medication.
7. In answer to my further questions he said that his wife is in London. He last spoke to her last week. She has not visited him and he does not still have a relationship with her.
8. He has four children. He does not know when he last saw them. He has been in detention for a whole year, so he would not know when he last saw them. They have not visited him because he does not want them to come to his place of detention.
9. His sister came to the last hearing, as did his other siblings. The only document that was ‘missing’ was a bank statement. She had submitted it before. She has kidney failure.
10. He cannot remember any detention centre adjudications. He has been on ‘rule 40’ but he does not know why. He cannot remember any adjudication for being intoxicated, or for receiving a parcel which contained drugs. He has not pushed or otherwise assaulted a member of detention centre staff.
11. He cannot go back to Holland because he left there a long time ago. All his family are here and there is no-one there for him.
12. As to the Secretary of State saying that he would commit more crimes in the UK, he said that he had been in the UK for so long, had been working and had not committed any crimes. When his record of offending was referred to he said that that was in the last two years when he was mentally ill.
13. During his detention he has not been able to attend any training or rehabilitation courses because there are none there. It is a prison.
14. In cross-examination he said that he is mentally ill so would not be able to bring evidence of his life in the UK (as had been directed). As to whether on 1 February 2017 he had asked to be returned to the Netherlands, he said that his family want him to stay in the UK. No-one wants him to go back.
15. He did not tell his family about the hearing because he only received the information about it yesterday and it was too short a notice period to give them. He did not tell them about the hearing that was adjourned (when he was ill with flu) either. They do their own business. They work. They only attend when they need to submit documents.
16. As to whether he is receiving any medication, he said that he has trouble sleeping and he is not even given sleeping tablets.
17. He did not arrange for any drugs to be delivered to him in detention. He does not use drugs there.
18. He has not invited his sister to visit him (since her last visit in September last year), because it is not a place to which you can invite people.
19. He does not remember whether or not he had a job when he was living in the Netherlands. He was in good health when he was there. He does speak Dutch but he had forgotten most of the words.
Submissions
20. Mr Melvin relied on his written submissions dated 23 January 2017 as well as the decision letter. Although directions had been given for the appellant to provide documentary evidence of his time in the UK, none had been provided either from him or his family. There was no evidence of lengthy residence in the UK. He has convictions including for assault and he offended even after receiving a warning letter from the respondent that further offending may result in his deportation.
21. The appellant has shown an unwillingness to abide by the rules and laws of the UK. There is still a high risk of reoffending. Despite his denials, there is evidence of adjudications in detention. He must have arranged the ‘legal high’ to have been provided to him. No other conclusion is plausible.
22. There was no evidence that he is receiving treatment for any mental health problems. If he was unwell he would have received treatment.
23. In response to those submissions, which I summarised for the appellant, he said that he would not commit crime, and he had not intentionally done so in the past. He had previously provided documents from his family. He does not want to return to the Netherlands and did not ask to return, and he cannot remember.
Conclusions
24. The appeal is governed principally by the EEA Regulations. The following are the relevant provisions as they applied at the date of the respondent’s decision:
“Decisions taken on public policy, public security and public health grounds
21. (1) In this regulation a ‘relevant decision’ means an EEA decision taken on the grounds of public policy, public security or public health.
(2) A relevant decision may not be taken to serve economic ends.
(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.
(4) A relevant decision may not be taken except on imperative grounds of public security in respect of an EEA national who—
(a) has resided in the United Kingdom for a continuous period of at least ten years prior to the relevant decision; or
(b) is under the age of 18, unless the relevant decision is necessary in his best interests, as provided for in the Convention on the Rights of the Child adopted by the General Assembly of the United Nations on 20th November 1989.
(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.
…”
25. Before expressing my conclusions on the application of the EEA Regulations, it is necessary to indicate my views of the appellant as a witness. This was a matter that the FtJ dealt with at [14] of his decision whereby he said that the appellant gave the impression of evasiveness, truculence and mendacity. I would not disagree with any of those adjectives, having seen and heard the appellant give evidence. To some extent I would also agree with his description of the appellant as having a degree of vulnerability. The FtJ referred to the possibilities as being that he is affected by past drug or alcohol abuse, emotional or mental disturbance or simply by having no independent advice or legal representation.
26. There is however, no evidence of any mental disorder. The detention review document dated 8 February 2017 states that DEPMU (detainee escorting and population management unit) reported no medical conditions or concerns regarding the appellant and that he is fit for detention.
27. I noted that the appellant repeatedly said that he could not remember certain things, but I do not consider that in that respect he was always telling the truth. Usually, his apparent lack of recollection related to matters adverse to him.
28. The appearance of vulnerability is evident, for example, in his apparent unwillingness to engage with the process of his appeal. However, that is illustrative of his general attitude to authority, or society, whether in or out of detention, and which is considered further below in terms of his behaviour whilst detained, and in terms of his offending.
29. The first question to be decided is what level of protection from deportation does the appellant enjoy under the EEA Regulations. If he has accrued 10 years' (qualifying) residence his removal can only be effected on imperative grounds of public security. I use the expression 'qualifying' because a period of residence of 10 years is in itself not sufficient. This is a matter that I dealt with at [31] and [32] of the error of law decision with reference to the decision in MG v Secretary of State for the Home Department Case C-400/12 [2014] 2 CMLR 40.
30. I said at [26] of the error of law decision that it was not entirely clear as to whether or not the respondent, in the grounds of appeal to the Upper Tribunal, challenged the FtJ's conclusion that the appellant had been in the UK since 2003, and I pointed out that there was no reasoned challenge to the FtJ's conclusion in that respect. As I also said at [27], the FtJ plainly gave careful consideration to all the evidence and was aware of the fact that the appellant's claim to have been in the UK since 2003 was unsupported by documentary evidence.
31. In the circumstances, I consider that the appellant's length of residence in the UK is a finding made by the FtJ that is to be preserved.
32. However, I am not satisfied that the appellant is protected from deportation in terms of the highest level of protection of imperative grounds. The 10 year period is to be counted back from the date of the respondent's decision. After that decision, on 7 September 2015 the appellant received a sentence of 16 weeks' imprisonment for an offence of common assault with a seven day sentence to run concurrently for breach of bail. Imprisonment, in principle, breaks the continuity of residence.
33. Furthermore, the FtJ concluded at [17] that the appellant had not established that he was employed or otherwise exercising Treaty rights in the UK. Apart from having a wife and four children in the UK, there is no evidence at all of any integration by the appellant into UK society, either before or after the respondent's decision.
34. The FtJ also concluded, at [17], that the appellant had not established that he had acquired a permanent right of residence through a period of five years' exercise of Treaty rights.
35. The position before me in those respects is the same as it was before the FtJ in terms of any evidence from the appellant. The directions for the resumed hearing which are set out at the end of the error of law decision were carefully tailored to accommodate the fact that the appellant was not legally represented. He did not avail himself of the opportunity to enlist the help of any family member in providing evidence of his time in the UK, not even telling them of any forthcoming hearing. There is therefore a significant lack of evidence from the appellant in support of his appeal despite his having been afforded every opportunity to provide it. The initial (error of law) hearing was even adjourned for that purpose, as can be seen from [37] of that decision.
36. Given that the appellant has not established that he has a permanent right of residence, and is not able to resist deportation on 'imperative' grounds, he may be deported simply on the grounds of public policy.
37. I bear in mind all the elements of reg 21(5), and I do not need to refer to each individually, having quoted them above. However, I refer specifically to reg 21(5)(c) which provides that the personal conduct of the appellant must represent a genuine, present and sufficiently serious threat affecting one of the fundamental interests of society.
38. I said at [33] of the error of law decision that it appeared that the FtJ concluded that the appellant represented a medium risk of reoffending, although he used the word ‘moderate'. In any event, in my view there is at least a medium risk, and probably a high risk, in the light of the matters I referred to at [33] and [34] of the error of law decision. It is to be noted in particular, that the appellant was sent a warning letter in October 2015 about his offending to the effect that further offending may result in his deportation. However, within a month of that letter the appellant committed the offence, described as making false representations, for which he received a sentence of eight weeks' imprisonment suspended for 12 months.
39. It is not even as if his period in detention has prompted a change in the appellant's behaviour or attitude. Evidence produced at the resumed hearing revealed that whilst in detention the appellant had been put into seclusion under 'rule 40' in December 2016 for being intoxicated and whilst under that regime pushed a member of staff and was otherwise disruptive on two occasions requiring his physical restraint. On 16 January 2017 he was found to have received a parcel with a 'legal high’ concealed in a pair of trainers.
40. Despite the appellant's denials of that behaviour, I am satisfied that those reports of his conduct in detention are accurate. In the first place, it is not likely that such reports would have been generated unless they had some substance to them. In the second place, the appellant's denials in respect of that conduct have to be seen alongside his initial denial at the hearing of having committed any criminal offences. His later admission of offending was not made in the context of any expression of remorse but in terms of it being excusable because of mental illness. He was sent to prison in September 2015 for common assault. He has eight convictions for 10 offences between August 2011 and March 2016.
41. A significant risk of reoffending is therefore evident in my view, which I conclude is a high risk. The appellant's offending has included assault, damaging property, using threatening or abusive, or insulting words or behaviour, and possession of a bladed article. That type of offending I consider affects one of the fundamental interests of society, which is plainly that members of the public should be free from the risk of physical harm, the threat of harm or damage to their property.
42. I am satisfied therefore, that the personal conduct of the appellant represents a genuine, present and sufficiently serious threat affecting one of the fundamental interests of society.
43. I have considered all of the factors to be taken into account as set out at reg 21(6). The appellant is aged 38 years. There is nothing to indicate that he is not in a good state of health. He had a wife and children in the UK but he is separated from his wife and does not appear to be in contact with his children, which he could be, even though detained.
44. He is not in employment and there is little evidence to suggest that he has ever had sustained employment, and of course he is currently detained. There is little basis from which to conclude that in the community he would be readily employable, or indeed willing to obtain employment.
45. As already indicated, I accept that he has been in the UK since 2003, but there is little if any evidence of his social and cultural integration into the United Kingdom.
46. He speaks Dutch. Although he said in evidence that he had forgotten most of the words, in evidence before me at the hearing on 31 October 2016, when asked whether he could speak Dutch fluently he said that he could. On the notice of appeal to the FtT a Dutch interpreter was requested. I am prepared to accept that the appellant has no family left in the Netherlands. However, he is familiar with the language and according to the evidence given before the FtJ, he lived there from about 1993, thus for 10 years before coming to the UK. His prospects for rehabilitation are at least as good in the Netherlands as they are in the UK. Nothing about him or his circumstances suggests otherwise, and certainly it does not appear that his family in the UK have been able to have any influence on his behaviour.
47. Taking all matters into account, I am satisfied that the respondent's decision complies with the principle of proportionality.
48. My ultimate conclusion is that the respondent's decision to deport the appellant is justified in terms of the EEA Regulations on the grounds of public policy.
49. A consideration of Article 8 of the ECHR would lead to the same outcome, with all relevant factors being subsumed within my consideration of the EEA Regulations.
Decision
50. The decision of the First-tier Tribunal involved the making of an error on a point of law. Its decision having been set aside, I re-make the decision by dismissing the appeal.

Upper Tribunal Judge Kopieczek 8/03/17