Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: DA/00318/2015

THE IMMIGRATION ACTS

Heard at Field House
Decision & Reasons Promulgated
On 5th December 2016
On 30th December 2016

Before

UPPER TRIBUNAL JUDGE KING TD

Between

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Appellant
and

MARIUSZ KLYS
Respondent/Claimant

Representation:
For the Appellant: Miss J Isherwood, Home Office Presenting Officer
For the Respondent/Claimant: In person

DECISION AND REASONS

1. The claimant is a citizen of Poland, born on 10 January 1988. He seeks to appeal against the decision of the Secretary of State taken on 9 July 2015 to make a deportation order against him.

2. The claimant came to the United Kingdom in 2008 and has been living with his partner and two children, Jacu, born in Poland on 20 September 2004, and Marko, born in the UK on 27 July 2008.

3. On 17 May 2010 he was sentenced for offence of driving a motor vehicle with excess alcohol. He was disqualified from driving for sixteen months and received a conditional discharge. There was a linked offence of driving whilst disqualified as he did not have a driving licence.

4. On 7 October 2013 the claimant committed a further offence of driving with excess alcohol. On that occasion he was disqualified from driving for fourteen months. A community order was imposed with unpaid work requirement and curfew. He failed to comply with certain requirements of that order.

5. On 7 April 2014 at the South Derbyshire Magistrate's Court he was dealt with for using threatening, abusive or insulting word and behaviour, receiving a twelve week period of imprisonment suspended for twelve months. There was a curfew requirement and an order for electric tagging.

6. The respondent, in the decision, indicated that between 17 May 2010 and 19 December 2014 the claimant had amassed a record of five convictions for nine offences receiving a variety of orders including community orders and suspended sentences of imprisonment.

7. The matter which triggered the decision to make a deportation order was that on 20 June 2014 at the Derby Crown Court he was convicted of conspiring to supply a controlled drug of Class B (cannabis) and on 19 December 2014 he was sentenced to fourteen months imprisonment. The learned Judge, in passing sentence, observed that the claimant was involved as a courier being seen on more than one occasion over a period operating with other street traders. The Judge found that the role played by him in that conspiracy was significant. He was given credit for his guilty plea.

8. The claimant sought to appeal against the decision to make a deportation order. Indeed the deportation order itself was signed on 9 July 2015. The appeal came before First-tier Tribunal Judge Cockrill at a hearing on 13 July 2016. On that occasion the claimant attended but was not represented.

9. It seemed not to be an issue in those proceedings that the claimant had not acquired a right of permanent residence in the United Kingdom and in those circumstances the issue was whether or not he presented a genuine, present and sufficiently serious threat affecting one of the fundamental interests of society. The respondent maintained the position that he did.

10. The Judge properly noted the factors set out in Regulation 21(5) of the Immigration (European Economic Area) Regulations 2006. Also Regulation 21(6) was also noted.

11. At the time of the hearing the claimant had separated from his partner and from his children; indeed it was recorded that at the time of the hearing he had not seen his children for nine months. Prior to his being sent to prison he had been living with his partner in Derby helping look after the two children. His mother also lived in Derby and he would visit her also.

12. It is recorded at paragraph 32 of the determination that the claimant had been able to have some contact with his children through his mother, but latterly had not been able to send letters to them because of the attitude of his ex partner. His ex partner appeared to be stopping contract between the children and their grandmother as well as with the claimant. The grandmother wanted to take the matter before the appropriate family court and the claimant also wanted to take formal action to obtain contact. Marko was now 8 and the elder child 11.

13. The Judge allowed the appeal on the basis that the children's interests would be better served potentially by a continuing relationship with the claimant and that in all the circumstances it was disproportionate for him to be removed.

14. In that connection it would be helpful to set out the way in which the matter is expressed at paragraphs 52 and 54 of the determination:-

"52. Were it not for these children it seems to me that the claimant could sensibly and reasonably be returned to Poland, although he does have some disquiet about the social consequences of going back because he is unlikely to be accepted by fellow Polish nationals because of his ethnicity. As matters stand, though and on the basis of all the evidence provided, it does seem to me that the relationship between father and child is one that should be promoted and that that feeds into the whole issue of proportionality and public interest. I take account, therefore, and in the particular circumstances of the claimant's case, give weight to the family situation, by that I mean his relationship with his two children, one of whom is his biological child and the brother has been treated as a child of the family."

54. It does seem to me that, looking at the gravity of the claimant's offending, in being involved in the supply of Class B drugs, that the claimant has come perilously close to being deported to Poland on the grounds of public policy or public security because the state, quite understandably, wishes to take adequate steps to stop people becoming involved in the chain of supply of illegal drugs but, and I stress this, given the particular circumstances of this claimant, with the two young children's interests being best served, potentially, by a continuing relationship with the claimant, that that matter should be addressed suitably by another court and for the time being, therefore, it would be disproportionate to deport the claimant to Poland. Public policy requires not only protection of the public from someone such as this claimant who has committed this offence of being involved in the supply of Class B drugs, but also public policy does require, as I see it, the protection of the interests of these two children, so that another court can suitably and properly determine whether or not contact with their father, the relationship they have had clearly for a number of years with their father, can and ought to be promoted by contact. For these reasons I come to the overall conclusion that the decision is a proportionate one and under the 2006 Regulations and although I emphasise I do give very significant weight to the public interest in deportation, knowing that the more serious the offence the greater the public interest in deportation, I can I think rightly set that aside as I accept that against the needs and interests of these two young children which, in my judgement, would be affected prejudicially and adversely by a decision to deport which, in practice, would mean that their father simply could not return to the United Kingdom for a long time. Accordingly, I allow the appeal under the 2006 Regulations for all these reasons."

15. Challenge is made, however, to that decision by the Secretary of State for the Home Department. Permission was granted to raise that challenge in the Upper Tribunal. It is in those circumstances that the matter comes before me to determine whether or not the decision of the First-tier Tribunal Judge was made in error of law. The claimant appears from custody in person before me, the respondent being represented.

16. In effect Miss Isherwood makes three submissions in relation to the decision of the First-tier Tribunal Judge:- the first being that the Judge makes no clear finding on the central issue in the matter, namely whether the personal conduct of the claimant represents a genuine, present and sufficiently serious threat affecting one of the fundamental interests of society (Regulation 21(5)(c)).

17. The second submission linked to that is that the Judge has failed to adequately assess the serious nature of the threat concentrating seemingly upon the drugs offence and not applying a holistic assessment as to conviction and conduct as is required by Regulation 21(6).

18. Finally it is submitted that considering the best interests of the children the Judge has been somewhat speculative as to the outcome or nature of any contact with the children. She submits that overall there has been a lack of clarity in the overall proportionality assessment.

19. I find that those matters have substance.

20. The factors set out in Regulation 21(5) are as follows:

"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."

21. Regulation 21(6) provides as follows:

"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."

22. It seems to me and I so find that the expression, "It does seem to me that, looking at the gravity of the claimant's offending in being involved in the supply of Class B drugs, that the claimant has come perilously close to being deported to Poland on the grounds of public policy or public security" fails to address the requirement as to personal conduct. There is no clear finding as to whether or not the claimant does indeed meet the test presenting a genuine, present and sufficiently serious threat. If so, clearly it is a weighty matter of public policy which requires his removal unless there are significant countervailing circumstances which make such disproportionate. As the Judge has indicated, the more serous the offence the greater the public interest in deportation. There has however been no indication or finding as to how serious his conduct is or the risk that is presented. The Judge seemingly has concentrated upon the supply of Class B drugs but that is but one aspect of a much more concerning picture. The claimant has been offending since 2010 to 2014. The offending has been repeat offending, particularly the driving with excess alcohol. There has been little compliance with court orders. There has clearly been an escalation in the serious nature of the offending coupled with a markedly anti-social element in all of it. None of those matters seem to have featured explicitly in the finding that there is a present genuine and sufficiently serious threat.

23. Indeed at paragraph 44, although the Judge sets out other aspects of offending, it is clear that the Judge is focusing very much on the drugs, considering that to be an isolated matter, which plainly it is not. Further, I do find that the Judge has approached the best interests of the children in a balanced way, particularly given the paucity of information to assist one way or the other. The reality has been that the claimant has been in custody and away from his children since 2014 and indeed at the time of the hearing had not seen them for nine months. There was hostility on the part of his partner for him to make contact. Recognising of course that the application can be made to the Family Court for contact, whether or not that contact is desirable would then be very much a matter for the Court to determine. In the absence of agreement, given the nature of the claimant's criminal conduct, arguably his lack of integration in society and the family disunity which has flowed from his behaviour, it cannot simply be said without more that public policy requires him to have contact with his children.

24. As I have indicated, if it be that he presents a serious threat to the welfare of society then that is a primary consideration requiring compelling reasons why removal should not be implemented.

25. In all the circumstances I do find that the lack of clarity as to the findings of threat and how serious it is has fundamentally flawed a proper consideration as to proportionality in this case.

26. For those reasons I find that the Judge has erred in law in the approach taken such that the decision should be set aside and remade.

27. Consequent to my findings I presented to the claimant three possible ways of proceeding. The first was that I would send the matter back to the First-tier for a different Judge to hear the matter and come to a conclusion. The second was that the hearing would be retained the in the Upper Tribunal but before a different Judge. The third being that I would reserve the matter to myself for hearing.

28. I indicated to the claimant that as I had, in effect, set aside a decision that had been favourable to him he may feel that he would wish for another Judge to determine the merits of the appeal.

29. The claimant indicated that he wished me to continue to hear the case and, subject to being allowed some time to sort through his papers, he was willing for the matter to continue that afternoon and for him to represent himself. In the circumstances I allowed him the time that he sought and commenced the hearing in the afternoon.

30. The claimant gave evidence in support of his appeal. He was sentenced in relation to the drugs on 19 December 2014 and was released from that custodial sentence on 20 July 2015. Since that time he has been in administrative detention. Although he did not embark upon any specific rehabilitative courses when in custody, he had sought to improve his employment prospects by undertaking a number of courses by a work placement. He worked in the sewing shop and with a bike fixing company. He was currently awaiting to be a painter in the prison wing. He produced a number of certificates which he had obtained as a result of his working and also having undertaken a basic English course in literacy. He has indicated that he had sought to improve his position to find work upon his release. He had learned his lesson from his offending, having spent so long in prison he wanted to devote himself to his family.

31. He indicated that upon release he would stay with his mother in Derby. His partner and the children were still living in the same address in Derby which was a council home. He had two brothers and two sisters also living in Derby. One brother and sister lived with his mother. The older brother was employed. His elder sister was looking for work. His younger brother had a partner and a young child and his younger sister was at college. He indicated that he would have the support of his family to lead an honest and constructive life.

32. He indicated that the situation of the children had slightly improved. His mother had made up with his ex-partner to the extent that the children now stayed with her over the weekends. Previously they had come to see his mother for a number of hours each week but now they were staying over. That enabled him to speak to them on the telephone. The children did not know that he was in prison but believed that he was working elsewhere. The claimant indicated that his ex-partner would have no objection to his seeing the children upon release. The claimant indicated that there were currently extradition proceedings afoot in Poland because before he came to the United Kingdom he had been convicted of burglary, as a result of which he had received a suspended sentence and be required to keep in regular contact with probation. Because he left for the United Kingdom he is in breach of those conditions and he believes that he will be imprisoned upon his return. He reaffirmed the position that when he lived in Poland he and his family experienced hostility because he was a gypsy and indeed on occasions violence. Thus it was that his family came to the United Kingdom, such that little of his family remain in Poland. He fears that he will receive the same treatment were he to return.

33. He was asked a number of questions by Miss Isherwood. He said that he left Poland in 2007 his home town being Bartoszyce. He had been treated differently from other people because of his ethnic origin and had not completed his education. He had nobody at all to return to. When he lived in Poland his father worked but his mother did not. He himself had not worked in Poland and he had made no attempt to find work there. He stopped going to school when he was 8 or 9 and did not want to go to school because of the way he was treated at school. He could not read or write in Polish and thus it was difficult for him to obtain a job. He said that the suspended sentence which he received in Poland was eleven months and fourteen days and he would have to serve ten months of that were he to return.

34. He did not consider the offence of drink and driving as a criminal offence but he would not do it again. He had been silly. As to his failure to comply with the requirements attached to his sentence, he had completed all the hours of unpaid work but he was in breach of his curfew by being one hour late. Although he had not undertaken any victim awareness course he had undertaken a drink drivers awareness course. As to the drug matter, he indicated that he was not dependent upon drugs and that the length of imprisonment had helped him reflect upon his behaviour. He did not accept the suggestion that his offending behaviour had escalated, maintaining that many of the matters for which he had been dealt with in the United Kingdom should properly be regarded as minor offences for which he has paid the penalty.

35. It was pointed out to him that if released he would be returning to Derby, a location where he had committed previous offences. He insisted his behaviour had improved and would improved subsequently with the help of his family. He was surprised at the sentence he received for cannabis because he thought that that would be treated as a minor matter. He became involved for financial reasons and because he mingled with the wrong people. He is now older and wiser.

36. He said that he had an offer of a job on release to work with car valeting or street cleaning. It was not possible for him to work and in Poland he was not treated well. He could not read or write in Polish and in any event his family were all in the United Kingdom.

37. He had not told his mother about the hearing. She is in a wheelchair on medication and not very mobile. He did not want to get her upset. There was no adverse significance to her not attending the previous hearing before the First-tier Tribunal. She had been on her way but was delayed and thus the decision was made for her to return home rather than come. Similarly his brother did not attend on the previous occasion because he was working and it was not entirely clear that he would have made any contribution to the appeal in any event.

38. As to the documents presented, they included a certificate of achievement of working of the overlock machine and in the textile workshop and a workplace safety awareness level one, and a word function skill in English, entry level.

39. Miss Isherwood made her submissions, relying as she did upon the details set out in the refusal decision. She submitted that the offending behaviour of the claimant had demonstrated a lack of integration in society and that all the matters had been anti-social in their nature. Far from learning from his mistakes she submitted that there had been an escalation of offending and the presence of family in Derby had not served to prevent any of that offending behaviour. She invited me to find that there was little to indicate that, even were he to re-establish connection with his partner and children, such would have any beneficial effect upon his behaviour. She invited me to find that if contact was to be made with the children such could be made through Skype or by visits made by them to Poland. There had been no indication of any involvement with social services and little evidence as to a change of circumstances from that that existed at the time of first hearing.

40. The claimant, speaking on his behalf, invited me to find that there had been a real change in his attitude as a result of being in prison. His family and children were the most important thing to him and he firmly believed that once he had re-established connection he would not offend. He stressed the importance to him and to his welfare to remain in the United Kingdom, fearing undue discrimination against him were he to return to Poland. He invited me to find that he was not a present threat to society and that in any event the best interests of his children were served by his continued presence. He drew my attention to a number of letters and to a medical report concerning his children and letters from them.

41. The central issue in this case is whether or not the claimant meets the threshold for removal, namely whether he currently presents a sufficiently serious threat to the public, not only by reason of his offences but also by his character and conduct. In that connection I bear in mind the nature of the offences and the length of time over which they are said to have been occasioned. In that connection it is relevant to note, as accepted by the claimant, that he had been convicted and sentenced in Poland for a serious offence of burglary, entering a dwelling house for which he received a suspended sentence. Although the terms of the order would seem to be that he work with probation, he chose rather to leave Poland to come to the United Kingdom. Shortly thereafter he commits an offence of driving with excess alcohol. Notwithstanding the sentence in relation to that matter he reoffends in precisely the same way shortly thereafter. All the matters for which he was convicted or pleaded guilty directly impact upon the safety of the public. It is the repetition of the offending and the escalation in the serious nature of offending which causes concern as to the safety of the public.

42. It is significant that, in making reference to those offences, the claimant seems to minimise their seriousness and their potential to hurt individuals within society. I do not gain the impression from hearing the claimant that he has fully engaged with the anti-social nature of his behaviour. There is little indication that the claimant has undertaken any course or training, such as to influence his thinking and behaviour. In fairness to him it is to be recognised that he has been in administrative detention following his nominal release for his offending. In the normal course of events there would have been post-sentence supervision but that was not open to him. To some extent he has not been able to demonstrate a change of approach or lifestyle by living outside prison and that limitation should be recognised. In fairness to him he has sought to gain some certificates of achievement in order to help him find a job when released.

43. That having been said, factors giving rise to some extent to his offending behaviour are still at present. He has no skills such that he will find obtaining work difficult. He found obtaining work difficult before he went to prison and in commonsense will find it even more difficult after leaving prison, in the absence of any help being offered by the authorities. He plans to return to Derby where his associates with the drugs continue to live. He does not currently or in the foreseeable future have the support of his partner and children such as to give him stability in his lifestyle. The offending in relation to drugs was a combination of needing money and falling into bad company. There is little indication that those factors will not arise again. There is little stability in his life, particularly in the absence of his partner and children. Indeed in fairness to him there will be some stability were he to live with his mother but that is an arrangement which he has not experienced prior to his detention. Rather he would visit his mother than live with her.

44. The OASys assessment of 1 May 2015 at Annex F of the bundle is singularly unhelpful in terms of its analysis of the claimant and of the claimant's behaviour. It simply points to his conditional release date of 20 July 2015 and his expiry of the licence on 18 February 2006. Both those matters of course have passed and for the most part the form seems to be blank with little assessment as to risk being attempted. There is an area of thinking and behaviour but those are not completed nor is the assessment as to attitude. There is a self-assessment pro forma but that also seems not to have been completed. Indeed for most of the report it is recorded as "missing data" and that seems to be reflected throughout. There is a crimino-genic needs summary in section scores set out at page 28 of the report but there is no indication of what those scores truly mean. There would be seem to be a predictor score percentage in risk category which looks at the probability of proven reoffending, estimating 11% in year 1, 20% in year 2 and low category. Overall it is a very unhelpful document. The sentencing remarks of the Judge are also set out indicating the claimant was willingly involved in serious crime.

45. Although the claimant contends that he has improved in his thinking skills, there is no course undertaken by him which could assist in any independent verification of that motive to change. The claimant has involved himself in serious crime from 2007 in Poland until 2014 when he was in prison. There is no indication that his conduct had improved over that period or that his motivation to lead an honest life had come to the fore. There was, as I so find, a significant escalation in his offending and a pattern of lack of concern for members of the public and their safety. Supplying drugs on the street or being party to their supply is a serious matter which affects the wellbeing of the public directly as does the driving of a motor vehicle when not insured and over the limit in terms of alcohol. I can find little evidence to indicate that when released the claimant would not offend again.

46. Looking at the matter overall and particularly having regard to the wider features as set out in Regulation 21(6) I do not find that the claimant has integrated into society during the time that he has been here. I find that he has been anti-social in his outlook and in his behaviour and has taken actions which directly place members of the public at risk of injury or harm or addiction. In fairness to the claimant I bear in mind what he says about his behaviour, but I find nevertheless that he does present a present, genuine and serious risk to the public were he to be released. Such a risk is exacerbated by a lack of firm family foundation. His anxieties about his children and his future, particularly his lack of work, are significant factors contributing to the risk of reoffending as is the lack of any guarantee that he would not associate with those with whom he associated in the past.

47. In relation to the question of rehabilitation, there is no indication that the claimant has undertaken any rehabilitative work or is likely to do so to address his reoffending in the future in the United Kingdom. The time for his post-sentence supervision has long passed. Indeed he no longer has the support of his immediate family and the support that he would hope to have from his mother and siblings has yet to be tested and tried. He cites limited job prospects in Poland as opposed to better prospects in the United Kingdom but the reality is once again for much of his time in the United Kingdom he did not work or was short of money.

48. I see no reason why the practical skills, which he has clearly learned in prison cannot be put to good effect in Poland as well as the United Kingdom. He cites hostility towards him in Poland but that, if any sense true, was in 2007 and it cannot be overlooked that that if it happened might relate less to ethnicity than to his criminal behaviour. It is to be noted that his father did work in Poland. There is nothing to indicate that Poland, as an EEA treaty signatory, will not abide by the principles of human rights and respect. Nothing has been placed before me to indicate that the rule of law would not be applied in Poland towards gypsies as towards other individuals.

49. It is relevant to note that the claimant has no permanent right of residence in the United Kingdom and thus less weight than otherwise falls to be given to rehabilitation in the UK, particularly when none has been attempted or has been effective. Indeed, it may be very relevant that the claimant has come to the attention of the authorities in Poland who indeed seemingly by way of extradition wish to have him back. He is subject to a probation regime as part of the suspended sentence. Although he considers that he will have to undertake immediate custody it will of course be a matter for assessment from the court in Poland as to what is the appropriate disposal. If it is maintained that probation or supervision is appropriate then clearly that would provide be a much better chance of rehabilitation in Poland than in the United Kingdom when that degree of supervision or support is no longer possible. I note the lack of family in Poland but note that the claimant is a relatively young man who has sought to improve his working skills. I do not find that he would be homeless or destitute in Poland without agencies or facilities to help him.

50. In terms of integration into the community I find little evidence that that has been so. I note the pattern of his behaviour, his lack of working and his lack of continuing family ties.

51. In considering of course the proportionality of his removal I bear in mind the best interests of his children as being a relevant factor in that assessment. In that regard I do note a paucity of evidence as to the current situation that exists. The claimant relied on a number of letters from family members in support of his family life. There is a letter for example from his brother Patryk dated 15 February 2015. He writes on behalf of his siblings and expresses the fact that his mother is severely disabled and that the two sons have been looking after her. Much is made that the absence of the claimant would put greater pressure on him because he would bear more of the burden of looking after her. Clearly however the claimant has been in custody now approaching two years.

52. The mother of the claimant has also written on the same date and speaks of the absence of the claimant as having an effect upon the sons and the letter of 16 February 2015 from his partner speaks as to how upsetting it would be that the claimant was not with the family. That of course takes no account of the evidence, as presented on the previous occasion, that she is now separated from him and does not want him to see either herself or the children. There is no social enquiry report or any indication as to how the children are responding to his absence. There is a letter from Derby City Council of 13 January 2012 relating to the educational placement of one of the children and of the council appeal in respect of that placement. There is little about how the children are performing at school. Rather the focus seems to be upon the appeal in respect of which school one or both should go to.

53. The claimant was particularly concerned that I should know that Jakub has a mixed aortic valve disease and to that extent a medical report from Derby Hospital dated 18 September 2012 is in the bundle. I note from that report that he is generally fit and well and very sporty and active with no symptoms. Clearly he has to be monitored but there were few limitations to his activities at that time. There is little indication therefore as to the nature of his health today or any indication that he is not being properly monitored. The claimant has been away from the children for over two years and as far as they are aware he has been working away. There is nothing to indicate that his absence in those circumstances has caused any difficulties or that his absence, either temporary or permanently, in the future would do so.

54. On 13 July 2016 the evidence as presented was that his ex-partner wanted nothing to do with him nor was she willing for him to have any contact with the children and that he had had none with them for nine months before. According to the claimant o that situation has dramatically changed. There is nothing from his mother, his brothers or his partner or indeed his children to substantiate that claimed change. I do not find adversely against the claimant simply by reason of the absence of his mother or wider family from the hearing, but the fact remains that there is little evidence other than his to substantiate any realistic change. A social worker's report might have assisted in that regard.

55. Clearly if any family proceedings are instituted to gain access to the children they can be instituted from Poland and it would be a matter for the court seized of the issues to determine how and in what manner evidence or contact should be made. I view with some scepticism, the suggestion that his partner has had a thorough change of heart towards the claimant within the few months since the Summer. Had that been the case, no doubt it would have been open to his partner to have written accordingly.

56. It is also to be borne in mind that the claimant's children and wife are also Polish nationals having not obtained any citizenship status in the United Kingdom. Therefore they could properly return to Poland as a family unit. Although Marko may be a qualified child for the purposes of the Regulations and statute, it is to be noted that currently the claimant has no parental responsibilities towards him and has for a significant part of his upbringing been absent from his life.

57. The Secretary of State, in the decision, considers it would not be unduly harsh for the family to return to Poland and there is nothing before me to indicate that that is not a realistic assessment. One child had lived in Poland before coming to the United Kingdom. Even were the claimant to be required to leave the United Kingdom the children are currently, and have been for a number of years, under the primary responsibility of their mother and that would continue should they remain in the United Kingdom. There is no reason to believe that the children could not maintain contact with the claimant, indeed in a way that he now claims they can. Accepted that the means of communication from prison are limited, facilities for Skype and for actual visits to Poland are a realistic factors promoting communication upon release.

58. It is also relevant to note the certification that has been applied to the decision In determining whether there would be a real risk of serious irreversible harm if removed pending the outcome of any appeal, consideration is to given The claimant has been away from the children for two years and out of their lives effectively until perhaps a few weeks ago when some communication was established by telephone. It is difficult to understand how such irreversible harm would be occasioned. It is perhaps a curiosity of this appeal that the issue of certification does not seem to have been raised as a matter of jurisdiction. It does, however, provide a right of appeal from out of country which would enable the claimant to raise any new matters that might arise including contact with children and an improved family situation. I do not find however currently that that can be said to have arisen.

59. Overall therefore I consider on the matter of proportionality that it is overwhelmingly in the public interest that the current risk that the claimant poses should be recognised and that the decision to deport him is entirely proportionate in all the circumstances.

Notice of Decision

60. The decision of the First Tier Tribunal is set aside and remade. The claimant's appeal against his deportation is thus dismissed. The decision of the Secretary of State of the Home Department to implement the deportation under the EEA Regulations is upheld. The appeal in respect of human rights and Article 8 of the ECHR is dismissed.

No anonymity direction is made.

Signed Date 30 December 2016

Upper Tribunal Judge King