Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: DA/00307/2020

THE IMMIGRATION ACTS

Heard at Field House
Decision & Reasons Promulgated
On 13 May 2022
On the 20 June 2022

Before

UPPER TRIBUNAL JUDGE FRANCES

Between

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Appellant
and

REGAN ANTONIO PIRES
(ANONYMITY DIRECTION NOT MADE)
Respondent

Representation:

For the Appellant: Mr E Tufan, Senior Home Office Presenting Officer
For the Respondent: Mr M Brooks, instructed by KB Law Solicitors

DECISION AND REASONS
1. Although this is an appeal by the Secretary of State for the Home Department [SSHD], I shall refer to the parties as in the First-tier Tribunal. The appellant’s appeal against deportation was allowed by First-tier Tribunal Judge Mehta [the judge] under the Immigration (EEA) Regulations 2016 [the 2016 Regulations] for the reasons given in the decision promulgated on 20 April 2022.
2. The SSHD appealed on the grounds the judge failed to give adequate reasons for finding the appellant was unlikely to re-offend and failed to take into account the appellant had offended whilst on bail. No reasons were given for why the appellant’s family were a protective factor when, in the absence of a change in circumstances, they were unable to prevent him from offending in the past.
3. In addition, the judge misdirected himself in law in failing to have regard to Land Baden-Württemberg v Tsakouridis (Directive 2004/38/EC) Case C-145/09 which states:
“Should the referring court conclude that the Union citizen concerned enjoys the protection of Article 28(3) of Directive 2004/38, that provision must be interpreted as meaning that the fight against crime in connection with dealing in narcotics as part of an organised group is capable of being covered by the concept of ‘imperative grounds of public security’ which may justify a measure expelling a Union citizen who has resided in the host Member State for the preceding 10 years. Should the referring court conclude that the Union citizen concerned enjoys the protection of Article 28(2) of Directive 2004/38, that provision must be interpreted as meaning that the fight against crime in connection with dealing in narcotics as part of an organised group is capable of being covered by the concept of ‘serious grounds of public policy or security.’”
4. Permission was granted by First-tier Tribunal Judge Adio on both grounds on 30 April 2021. At the hearing before me, Mr Tufan applied to amend the grounds to include a further challenge on the basis the point was ‘Robinson’ obvious: The judge had failed to have regard to Regulation 27(8) and consider Schedule 1. Mr Brooks opposed the application on the basis that the respondent should have made a proper application at the relevant time.
5. I refused the application to amend because it was significantly out of time and there was no good reason for the delay. The judge set out section 27(8) at [24] and for the reasons given below, the grounds lack merit. Having considered the overriding objective, the application to amend the grounds was refused.
6. Mr Tufan relied on the written grounds of appeal and submitted the appellant had committed a very serious crime. The judge had failed to consider the aggravating feature of committing the second offence whilst on bail in concluding the risk of re-offending was low. Tsakouridis was referred to in the respondent’s decision and the judge failed to properly direct himself in accordance with the paragraph set out above. The judge wrongly relied on Arranz (EEA Regulations – deportation – test: Spain) [2017] UKUT 294 (IAC). The majority of the factors referred to at [30] of the decision were irrelevant or neutral. The appellant’s family had failed to prevent him from re-offending in the past.
7. Mr Brooks relied on his skeleton argument and submitted the appellant’s offence in itself was not sufficient to establish future risk. The burden was on the respondent to demonstrate ‘imperative grounds of public security’. The appellant’s offending behaviour alone was insufficient to justify the decision to deport. The severity of the offence could be the starting point, but there had to be something more. The respondent had failed to demonstrate the imperative grounds test was met.
8. Mr Brooks submitted the appellant’s involvement in drug dealing did not meet this very high threshold. The risk to public security was not so compelling to justify the exceptional course of removing the appellant to Portugal. The appellant’s offending behaviour was insufficient to demonstrate a future threat and the respondent’s appeal must fail. Any error of law was not material. The judge referred to the appellant as part of an organised gang at [13] and considered the respondent’s review. There was no OASys report before the judge and the judge did not have to specifically refer to every piece of evidence.
9. In response, Mr Tufan submitted the appellant’s submissions highlighted what the decision should have contained, but the judge failed to apply the correct test. The reasons given were not relevant to whether the respondent had discharged the burden of proof.
Conclusions and reasons
10. The appellant is a Portuguese national born on 25 April 1996. He came to the UK in 2003 when he was seven years old. It is accepted he has ten years’ residence and has acquired permanent residence. The respondent accepts the appellant may only be deported on imperative grounds of public security.
11. The appellant pleaded guilty and was convicted of two offences of conspiracy to supply class A drugs and was sentenced to 40 months’ imprisonment. He was 19 years old at the time of the offence and of previous good character.
12. In his sentencing remarks, HHJ Taylor noted it was a county lines operation and the appellant played an integral role. He was involved on two key dates (the second when he was on police bail) of category 3 street dealing. HHJ Taylor accepted the appellant was genuinely remorseful and he was classed as low risk of re-offending. The appellant had completed a course in prison which addressed strategies to avoid re-offending.
13. The judge heard evidence from the appellant, his parents and his sister and found them to be credible. There was no OASys report before the judge and he relied on the sentencing remarks. He recognised that the appellant’s convictions were insufficient in themselves and the decision could only be taken on imperative grounds of public security.
14. The judge concluded that the respondent had failed to show that the appellant represented a genuine, present and sufficiently serious threat affecting one of the fundamental interests of society. At [30] the judge gave six reasons for coming to this conclusion. At [31], he concluded the appellant was at low risk of re-offending.
15. The respondent submits the judge failed to take into account relevant matters and failed to give adequate reasons for concluding the appellant was at low risk of re-offending. Mr Tufan submitted the reasons at [30] were either irrelevant or neutral.
16. I am not persuaded by the respondent’s argument. There was no OASys report before the judge and he quite properly relied on the sentencing remarks which he set out in full. He was well aware that the appellant’s offence was part of an organised criminal group and the second offence was committed whilst the appellant was on bail.
17. The sentencing judge had the benefit of a pre-sentence report and considered the appellant to be of low-risk of re-offending. The judge considered the further evidence before him. He accepted the evidence from the appellant’s family and gave adequate reasons for doing so. The reasons given at [30] were relevant and adequately explain why the judge found that the respondent had failed to show the appellant represents a genuine, present and sufficiently serious threat affecting one of the fundamental interests of society.
18. There was no misdirection in law. The judge considered the appellant’s drug dealing in the context of organised crime. He took into account all relevant circumstances and his conclusions were open to him on the evidence before him. There was no material error of law in the judge’s decision. The appeal by the SSHD is dismissed.
Notice of Decision
The appeal is dismissed.

J Frances
Signed Date: 26 May 2022

Upper Tribunal Judge Frances

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NOTIFICATION OF APPEAL RIGHTS
1. A person seeking permission to appeal against this decision must make a written application to the Upper Tribunal. Any such application must be received by the Upper Tribunal within the appropriate period after this decision was sent to the person making the application. The appropriate period varies, as follows, according to the location of the individual and the way in which the Upper Tribunal’s decision was sent.
2. Where the person who appealed to the First-tier Tribunal is in the United Kingdom at the time that the application for permission to appeal is made, and is not in detention under the Immigration Acts, the appropriate period is 12 working days (10 working days, if the notice of decision is sent electronically).
3. Where the person making the application is in detention under the Immigration Acts, the appropriate period is 7 working days (5 working days, if the notice of decision is sent electronically).
4. Where the person who appealed to the First-tier Tribunal is outside the United Kingdom at the time that the application for permission to appeal is made, the appropriate period is 38 days (10 working days, if the notice of decision is sent electronically).
5. A “working day” means any day except a Saturday or a Sunday, Christmas Day, Good Friday or a bank holiday.
6. The date when the decision is “sent’ is that appearing on the covering letter or covering email.