Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: DA/00326/2016

THE IMMIGRATION ACTS

Heard at Stoke
Decision Promulgated
on 21 April 2017
on 26 April 2017

Before

UPPER TRIBUNAL JUDGE HANSON

Between

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Appellant
and

BARTOSZ WOJTKIEWICZ
(Anonymity direction not made)
Respondent

Representation:

For the Appellant: Mr C Bates Senior Home Office Presenting Officer
For the Respondent: Mr R Martin instructed byFadiga & Co Solicitors

DECISION AND REASONS

1. This is an appeal by the Secretary of State against a decision of First-tier Tribunal Judge A J Parker ('the Judge’) promulgated on 5 January 2017 in which the Judge allowed the appeal against the order to deport Mr Wojtkiewicz from the United Kingdom pursuant to the Immigration (European Economic Area) Regulations 2006 (as amended) as a result of his criminality.

Background

2. Mr Wojtkiewicz is a national of Poland born on 21 May 1984. He claims to have arrived in the United Kingdom in 2006 although it is noted by the Judge that no documentary evidence was provided to substantiate the date of arrival. The Judge noted Mr Wojtkiewicz provided some evidence of working in the UK.
3. Mr Wojtkiewicz was convicted at South Derbyshire Magistrates Court for burglary with intent to steal and sentenced to 16 weeks imprisonment on 20 August 2013. On 29 July 2014 Mr Wojtkiewicz was convicted at Derby Crown Court of three counts of burglary and on 10 October 2014 was sentenced to 4 years imprisonment.
4. The Judge was invited by Mr Wojtkiewicz’s Counsel to find that he had acquired the right of permanent residence in the United Kingdom such that the higher threshold of ‘seriousness’ must be met in order for Mr Wojtkiewicz’s deportation to be justified.

Error of law

5. The Judge sets out the findings of fact from [17] of the decision under challenge. In relation to the issue of the appropriate level of protection the Judge writes that [19]:

19. I therefore find that Mr Trevelyan’s assertion that the right of residence can accrue from a date one starts exercising it is correct. It does not have to be proved five years prior to the decision and therefore, the Appellant can show that he has an enhanced right of residence for five years from 2006 to 2011 relying on Regulation 21(3).

6. The Judge refers at [18] to a payslip dated 5 November 2006 with a cumulative income at that point of £800 and a submission regarding employment until Mr Wojtkiewicz became unemployed in 2012. The Judge notes P60s in the appeal bundle for 2006/2007 showing an income of £4,614, for the year ending 5 April 2008 showing earnings of £4,032, for the year 2009/2010 showing earnings of £423 and for 2010/11 earnings of £7,272.
7. The Judge accepted that the evidence of employment in the United Kingdom demonstrated Mr Wojtkiewicz was exercising treaty rights sufficient to enable him to show five years continuous employment from 2006 and, therefore, to evidence an entitlement to a permanent right of residence in the United Kingdom.
8. What the Judge fails to take into account, or to make any reference to in the decision under challenge, are The Accession (Immigration and Worker Registration) Regulations 2004 or the Accession (Immigration and Worker Registration) (Revocation, Savings and Consequential Provisions) Regulations 2011.
9. These provisions are relevant as Mr Wojtkiewicz is a Polish national and therefore a member of the States that acceded to the EU in 2004, more commonly referred to as the “A8” States.
10. The 2004 Regulations introduced a period referred to as “accession period” beginning on 1 May 2004 and ending on 30 April 2009.
11. The purpose of this scheme was explained by the Upper Tribunal in the case of JL (A8 worker – lawful employment) Poland [2009] UKAIT 00030 at [7]-[10] in the following terms:

7 The Accession Regulations give effect to the U.K.’s right to derogate from the free movement provisions for EU workers in Regulation (EEC) No 1612/68 during the accession period of 1 May 2004 to 30 April 2009 which is set out in the Treaty of Accession (signed in Athens 16 April 2003) in respect of the A8 states. (The application of the Accession Regulations was recently extended to 30 April 2011: see SI 2009/892.) Whilst allowing access to the UK labour market for A8 state workers, the Regulations created a registration scheme - the Worker Registration Scheme ('the Scheme'). The principal purpose of the Scheme is to enable the UK Government to monitor and review the arrangements for access by A8 states nationals to the UK labour market during the accession period. It is not intended to limit or restrict access although it is intended to encourage those working here illegally to regularise their status (see Zalewska v Department for Social Development [2008] UKHL 67 at [34] per Lord Hope of Craighead and at [53] – [54] per Baroness Hale of Richmond).

8. As a consequence, and accession State worker may only work for an “authorised employer” with whom he is registered under the Scheme (reg 7(1)). Likewise, an employer may only employ an accession State worker if he is an “authorised employer" otherwise, subject to certain defences, the employer commits a criminal offence (reg 9) (described as a “not very serious” one by Baroness Hale in Zalewska at [50]). The worker must apply for (initially) a registration card and for each employment a WRC in accordance with regulation 8 which, so far as relevant, provides as follows:

9. As reg 8 makes clear, the application by the A8 State worker must be in writing (reg 8(2)) and can only be made once the individual is working for the employer (reg 8(1)). Provided the formalities set out in reg 8 are complied with, and the Secretary of State is satisfied that the applicant is an accession State worker and has started working for the employer on the date stated in the application, she must issue the WRC (and registration card if applicable) (reg 8(5) and (6)). There is no discretion to refuse. The WRC will contain the date upon which the individual started working for the employer as stated in the application (reg 8(8)(d) and the date of issue (reg 8(8)(e)).

10. Although the issue of a WRC is a “purely administrative act”, and it appears that no checks are made on whether the employer is complying with such matters as employee protection legislation, paying the minimum wage, paying employee National Insurance contributions and so on (Zalewska per Baroness Hale at [52]), non-compliance with the requirements of the Scheme has a significant effect upon the individual A8 state worker’s immigration status in the UK. This is because, when an individual is an “accession State worker requiring registration" within the Accession Regulations, the 2006 EEA Regulations, which apply to other EEA nationals who are working (or seeking work) in the UK, are disapplied. However, during the time an A8 state worker is employed by an “authorised employer”, the A8 state worker is treated as a “qualified person” for the purpose of the 2006 EEA Regulations but not otherwise, for example when seeking work or when that work has ceased (reg 5(2) and (3)). Even so, the A8 state worker cannot obtain a registration certificate under reg 16 of the 2006 EEA Regulations and his family members are not entitled to a residence card under reg 17 of the 2006 EEA Regulations (reg 5(5)). The consequence is that if and A8 state worker fails to comply with the Scheme set out in the Accession Regulations, he will not have any lawful basis for being in the UK under EU law as a worker (or jobseeker). He may, of course, exercise a right of free movement on another basis, for example as a student or self-employed person.

12. As stated, there is no mention of the Regulations in the decision under challenge and no consideration by the Judge of whether Mr Wojtkiewicz made an application under the same. Indeed, the evidence made available to the Upper Tribunal suggests no such application was made. Although Mr Martin advised the Tribunal that he had been handed a document today dated 2009 which Mr Wojtkiewicz claimed is evidence that he himself registered under the scheme, it was accepted that it was not clear if this document showed Mr Wojtkiewicz was employed by an “authorised employer”. Had a valid application been made under the Regulations Mr Wojtkiewicz would have been issued with the appropriate documentation yet there was no evidence of any approval from the Secretary of State and, as stated, Mr Bates response was to state that a search of the Home Office records did not show any evidence of them having received a registration application which had to be in writing and made to the Secretary of State in any event.
13. In the absence of any evidence that Mr Wojtkiewicz had made a proper application in accordance with the requirements of the Regulations there was no evidence before the Judge that any employment undertaken by him prior to the ending of the requirement to register, which closed on 30 April 2011, could be classed as lawful employment or that Mr Wojtkiewicz could be found to be a “qualified person” under the 2006 EEA Regulations during this relevant period.
14. The available evidence suggests that any employment undertaken by Mr Wojtkiewicz did not satisfy the requirements of the Regulations. There is no evidence Mr Wojtkiewicz had been issued with a Workers Registration Certificate (WRC) or Registration Card.
15. I find the Judge made two errors of law, the first being a failure to consider relevant legal provisions when assessing the issues relevant to the appeal and, secondly, in finding that based upon his employment between 2006 and 2011 Mr Wojtkiewicz had acquired a right of permanent residence pursuant to Regulation 21(3). There was no evidence before the Judge that Mr Wojtkiewicz was a qualified person during this relevant period.
16. The finding by the Judge that Mr Wojtkiewicz was entitled to the higher level of protection such that he was entitled to a permanent right of residence requiring the Secretary State to show “serious grounds of public policy or public security” to justify deportation is a misdirection of law.
17. As the Judge’s assessment of the merits of the appeal are based upon the finding of an entitlement to the higher level of protection the error of law is material. The determination is set aside although there are several preserved findings set out below.

Discussion

18. As there was no further material relied upon by the parties and as the Judge had made preserved findings, the advocates were invited to make further submissions to enable the Upper Tribunal to remake the decision.
19. The starting point must be the finding by this Tribunal that Mr Wojtkiewicz failed to discharge the burden of proof upon him to the required standard to show that he had acquired a right of permanent residence in the UK. Therefore, he is only entitled to the lowest level of protection that of public policy or public security. There is no issue of public health on the facts of this case.
20. In relation to Mr Wojtkiewicz personal circumstances at [39] the Judge found “It is accepted that he has a genuine and subsisting relationship with his daughter, who is a Polish national. There has been Social Service involvement with the family due to his drugtaking and allegations of domestic violence. It is by no means certain that the Appellant would be able to exercise contact with his daughter.” Mr Martin advised the Tribunal that Mr Wojtkiewicz has made an application for contact and that an initial appointment has been made with the Magistrates Court in the week of 24 April. There were no documents available that could be disclosed relating to the Family Court proceedings and no evidence of any orders being made relating to whether Mr Wojtkiewicz shall be permitted contact with his daughter or the terms of such contact.
21. At [33] the Judge records “Due weight should be given to the nature of the offences. He has been sentenced to over four years and this is a very long sentence. The sentencing judge’s remarks in this case noted to be burgled in circumstances where his victim was disabled with limited mobility was particularly serious. The OASys assessment found that the Appellant posed a medium risk of harm to known adults and children due to self harming issues but a low risk of reoffending. It was suggested that the Appellant is unable to support himself without risk of resorting to crime. His conviction is shown to show his antisocial attitude towards the public and the community.”
22. Mr Martin also referred to [35] where the Judge writes “He has been attending weekly appointments with the Phoenix Futures to address his substance misuse. They had not been working with the substance misuse team as there was no need for the Appellant to have their support.”
23. In relation to the deportation of an EEA national, such may be removed from the UK if the Secretary of State has decided that his removal is justified on the grounds of public policy, public security or public health in accordance with regulation 21. It is not disputed that a fundamental interest of society within the meaning of regulation 21, a threat to which may justify the exclusion of an EEA national, is to be determined by reference to the legal rules governing the society in question which includes preventing activities contrary to the criminal law as well as the maintenance of an effective system of immigration control.
24. It is not disputed that the burden of proof lies upon Mr Wojtkiewicz to show that the Secretary of State’s decision to deport him was not in accordance with the EEA Regulations.
25. The Tribunal must also bear in mind that the public policy ground of removal is an exception to the fundamental principles of the free exercise of EU rights and, as such has to be construed restrictively. Mr Wojtkiewicz’s presence or conduct must therefore be shown to constitute a genuine and sufficiently serious threat to public policy. Such is established by demonstrating the existence of a propensity by Mr Wojtkiewicz to act in the same way in the future for, as such matters must be assessed solely and exclusively on the conduct of the person concerned, if there was evidence that there will be no further offending or repeat of conduct that may establish a genuine and sufficiently serious threat, there can be no basis for the removal of the individual from the United Kingdom as the absence of a real risk of reoffending would mean the power to deport nationals of other Member States on the grounds of public policy or public security would not arise: see SSHD v Arthur Dumliauskas, Lukasz Wozniak and ME (Netherlands) [2015] EWCA Civ 145.
26. Mr Wojtkiewicz was sentenced on 10 October 2014 and remained in detention prior to his release in January 2017. In his sentencing remarks His Honour Judge Pugsley sitting at the Derby Crown Court said:

“When you close the front door of your house you are entitled in a decent stable society to feel safe. That is a great privilege of this country and we do not have the searing memory of a Government of bullyboys and tyrants such as pertained under the Nazis in Germany, the rule of Stalin or of those countries today beset by bestial cruelty in civil law.

Of course we know that we might be burgled. But to be burgled in the circumstances of this victim – disabled, limited mobility – and you don’t just commit an offence against property you shatter the life for whom that house has been a place they married, raised children, and has a real affection with the memories becoming precious the more old and mature they are.

I would be perfectly entitled to go beyond the guidance cases and impose a sentence of over six years imprisonment. I’m not going to for one simple reason. You had the courage to admit. And save for the last burglary these matters may have remained undetected. And the occupant of that house and her family have at least this consolation, that they know you’re not going to be about.

But I warn you that if you commit any more house burglaries you will face a much longer sentence. You understand that?

Sentence I impose, as I indicated and gave your Council the opportunity to seek to change my mind, is one of four years imprisonment on the burglaries, and a concurrent nine months on the fraud charge with the bank card.

………..
27. There is within the documents an OASys report dated 16 February 2015. In this it is noted that Mr Wojtkiewicz’s automatic release date on conditional release was 29 September 2016 and that his licence expiry date was 29 September 2018. The author of the report records at question 2.1 Mr Wojtkiewicz’s explanation for why he committed the offences which is recorded in the following terms:

“Burglary committed between 19th and 22 January 2014. Mr Wojtkiewicz states that he and his partner had separated and were living apart for a short period of time. He was feeling low in mood and had purchased some M-CAT but he did not have anywhere to go and inject the substance. He said he entered the property, which he knew was empty, and stayed there overnight and used M-CAT whilst there. When interviewed by the Police, Mr Wojtkiewicz also asked for 3 other offences of Burglary to be taken into consideration at the same time. With regard to the 3 other Burglaries, Mr Wojtkiewicz states these took place in April, June and December 2013 when his drug use was much worse. All offences were committed against the same elderly victim. Mr Wojtkiewicz informed me that he entered her house and took her purse while she was upstairs in the property on three separate occasions.”

28. Mr Wojtkiewicz’s victim was an elderly woman living on her own in relation to whom it is noted, at section 2.5, that the impact on the victim was financial loss, distress, fear for her own safety, possible damage to the property.
29. The author of the report noted Mr Wojtkiewicz pleaded guilty at the earliest opportunity and expressed remorse for his actions and recognised the negative effect this would have had on the victim and demonstrated some understanding of the impact offending has on the wider community.
30. It is also noted, however, that the current offences represented an escalation in seriousness from previous offending. In section 2.12 it is noted:

“Mr Wojtkiewicz has one previous conviction for like offences, in August 2013, for which he received a four-month custodial sentence. Mr Wojtkiewicz recognises that there is a developing pattern of offending behaviour and he states that he admitted to committing the other offences as he wanted to ‘put an end to it and make a fresh start’. Mr Wojtkiewicz also admitted that he had also been in prison in Poland, where he received 3 months in relation to driving offences (causing accident whilst driving without a licence and insurance). I am however not able to verify this information at this time.”

31. In relation to the identification of issues contributing to the risk of offending and harm, the author of the report writes:

“Of concern is the fact that all of his previous Burglary offences have been committed against the same elderly victim. Mr Wojtkiewicz states that since the most recent Burglary matter, he has not used M-CAT or any other illegal substance as he and his partner have reconciled their relationship and he is motivated to remain drug-free and lead a more positive life with his family. Mr Wojtkiewicz demonstrated a good level of victim awareness. Mr Wojtkiewicz is assessed as presenting a low risk of serious harm to the public at the current time. Due to his disclosures during the interview regarding past incidents of self-harm/suicide attempts, I would assess Mr Wojtkiewicz as presenting a medium risk of harm to himself.”

32. At section 3.6 of the report the author writes:

“Prior to custody Mr Wojtkiewicz was residing with his partner and their child at his parents address in Derby (39 Thorn Street, Normanton, Derby, DE 23 6Z). He has informed me however that just before he was sentenced, he and his partner had secured a council accommodation (two-bedroom flat) at 2 Trocadero Court, Normanton, Derby, DE1 2GR. On release from prison, if the relationship continues (due to the length of sentence) Mr Wojtkiewicz intends to return to that address. If not, he says he will go back to his parents address. Accommodation issues linked to offending behaviour due to the fact that Mr Wojtkiewicz has informed me that he committed the most recent offence following an argument with his partner and relationship breakdown. Stated he was homeless for a few days and needed a place to inject his drugs.”

33. The author of the report also notes that previous offences were financially motivated as Mr Wojtkiewicz needed money to fund his drug habit and there is no evidence of Mr Wojtkiewicz being self-sufficient and is reliant upon his parents for financial support. The financial issues are linked to offending behaviour but not said at the date of the report to link to a risk of serious harm.
34. Concerning relationship issues, the author of the report writes at section 6.10:

“Mr Wojtkiewicz was born in Poland, where he spent most of his life. He describes happy childhood and supportive relationships with his parents and two adult brothers. Mr Wojtkiewicz has informed me that his family moved to the UK in 2006. His states that he is the only person in the family with criminal convictions however he informs me that his family remain very supportive.

Mr Wojtkiewicz tells me that he is in a relationship with Izabela Tutak (dob 26/09/1987). They have been together since 2012 however they have known each other for a long time as they met when they both lived in Poland. They have a daughter, Dorothy Tutak (dob 23/11/2013). Mr Wojtkiewicz has informed me that Social Services were involved in 2013. He has told me that referral was made by midwife as at the time Izabela was pregnant and he was sentenced to prison for drug-related offences. He also informed me that Izabela was also using drugs at the time. Mr Wojtkiewicz has also informed me about most recent incident in June/July 2014 which resulted in a Police callout. He has informed me that him and Izabela had an argument and that she assaulted him (scratched him in the face) which he reported to the Police no relationship issues have been highlighted…….”

35. In relation to Mr Wojtkiewicz’s thinking or behavioural issues and the way in which they contributed to the risk of offending and harm, the author of the report writes:

“Current offences are indicative of inappropriate problem-solving and display deficits in relation to thinking and decision-making skills. In relation to the three Burglary offences, whilst initially his actions may have been opportunistic, I would suggest that there was later a level of premeditation, bearing in mind that Mr Wojtkiewicz committed the same offence, against the same victim three times within a few months period. It is possible that his thinking and behaviour was impaired by the substances taken at the time. In discussing his behaviour, Mr Wojtkiewicz expressed remorse and he stated that now, when he is not using drugs, he feels disgusted with his behaviour and he would like to apologise to his victim.”

36. The author of the report assessed Mr Wojtkiewicz as presenting a low risk of serious harm in custody but in the community in relation to children that he poses a medium risk, a low risk to the public, a medium risk to known adults and a low risk to staff. The reference to “medium risk” is defined on page 31 of the report as “there are identifiable indicators of risk of serious harm. The offender has the potential to cause harm but is unlikely to do so unless there is a change in circumstances, for example, failure to take medication, loss of accommodation, relationship breakdown, drug or alcohol misuse”.
37. The evidence suggests that Mr Wojtkiewicz’s relationship with his partner has broken down and there is a letter of 16 December 2015 from Izabela to this effect. There also appears to be an issue in relation to ongoing contact to Dorothy as evidenced by the information provided to the Tribunal by Mr Martin in relation to the ongoing proceedings before the Magistrates Court.
38. There is evidence that Mr Wojtkiewicz has taken steps to address his drug abuse and there is reference by the Judge to weekly appointments with an organisation named Phoenix Futures although no up-to-date report from them has been provided for the purposes of these proceedings. It is accepted that this group is a charity and housing association which helps people overcome drug and alcohol problems.
39. Although the author of the OASys report identified a low risk of serious harm at the date of that document it appears the intention of Mr Wojtkiewicz to return to his partner and continue their relationship and work to support his family has not materialised. It is, however, accepted that he has returned to his parents who appear to be offering him support and assistance. The evidence is indicative of the causation of the previous offending which is based upon several factors. It is not found that Mr Wojtkiewicz has demonstrated by the evidence he seeks to rely upon that the current situation is such that it can be found that he has discharged the burden of proof upon him to show that there will be no further offending or repeat of conduct similar to that which led to the offending behaviour. There is therefore a propensity for Mr Wojtkiewicz to act in the same way in the future if faced with the types of issues, such as drug, relationship, financial, and such in the future. Although the indication is that Mr Wojtkiewicz has made some progress since his conviction and sentence no up-to-date OASys report is available dealing with the position in which elements Mr Wojtkiewicz identified as assisting in reducing the risk of reoffending are not available to him.
40. It is also arguable in a case in which Mr Wojtkiewicz deliberately targeted a disabled old woman as a person whose home he chose to burgle, that an element of deep public revulsion arises as recognised by the Sentencing Judge in the sentencing remarks set out above. The Courts have accepted that in cases where the conduct of the EU national has caused such deep public revulsion public policy will require his removal. This is a case in which, as recognised by the Judge in [30] of the First-tier Tribunal, had this not been an EA deportation the public interest provisions would make it extremely difficult for Mr Wojtkiewicz to remain in the UK.
41. In relation to the extent of Mr Wojtkiewicz’s integration into the UK, he has not acquired a permanent right of residence. His connection to the UK appears to be based upon his own family and his child. Mr Wojtkiewicz also served a period of imprisonment as a result of his conviction which is not a period relevant to assessing whether an individual had been exercising treaty rights lawfully and which is contrary to an argument that an individual has been properly integrated into the UK.
42. In relation to the rehabilitation argument, the most recent decision of the Upper Tribunal is that of MC (Essa principles recast) Portugal [2015] UKUT 00520(IAC) the head note of which reads:

1. Essa rehabilitation principles are specific to decisions taken on public policy, public security and public health grounds under regulation 21 of the 2006 EEA Regulations.

2. It is only if the personal conduct of the person concerned is found to represent a genuine, present and sufficiently serious threat affecting one of the fundamental interests of society (regulation 21(5)(c)) that it becomes relevant to consider whether the decision is proportionate taking into account all the considerations identified in regulation 21(5)-(6).

3. There is no specific reference in the expulsion provisions of either Directive 2004/38/EC or the 2006 EEA Regulations to rehabilitation, but it has been seen by the Court of Justice as an aspect of integration, which is one of the factors referred to in Article 28(1) and regulation 21(6) (Essa (2013) at [23]).

4. Rehabilitation is not an issue to be addressed in every EEA deportation or removal decision taken under regulation 21; it will not be relevant, for example, if rehabilitation has already been completed (Essa (2013) at [32]-[33]).

5. Reference to prospects of rehabilitation concerns reasonable prospects of a person ceasing to commit crime (Essa (2013) at [35]), not the mere possibility of rehabilitation. Mere capability of rehabilitation is not to be equated with reasonable prospect of rehabilitation.

6. Where relevant (see (4) above) such prospects are a factor to be taken into account in the proportionality assessment required by regulation 21(5) and (6) ((Dumliauskas [41]).

7. Such prospects are to be taken into account even if not raised by the offender (Dumliauskas [52]).

8. Gauging such prospects requires assessing the relative prospects of rehabilitation in the host Member State as compared with those in the Member State of origin, but, in the absence of evidence, it is not to be assumed that prospects are materially different in that other Member State (Dumliauskas [46], [52]-[53] and [59]).

9. Matters that are relevant when examining the prospects of the rehabilitation of offenders include family ties and responsibilities, accommodation, education, training, employment, active membership of a community and the like (Essa (2013) at [34]). However, lack of access to a Probation Officer or equivalent in the other Member State should not, in general, preclude deportation (Dumliauskas [55])

10. In the absence of integration and a right of permanent residence, the future prospects of integration cannot be a weighty factor (Dumliauskas [44] and [54]). Even when such prospects have significant weight they are not a trump card, as what the Directive and the 2006 EEA Regulations require is a wide-ranging holistic assessment. Both recognise that the more serious the risk of reoffending, and the offences that a person may commit, the greater the right to interfere with the right of residence (Dumliauskas at [46] and [54]).

43. The need to consider the prospect of rehabilitation arises as it has been found that the personal conduct of Mr Wojtkiewicz represents a sufficiently serious threat affecting one of the fundamental interests of society.
44. Rehabilitation is an issue to be addressed in this deportation decision as it is not shown that any attempt to do so have, to date, been completed. The Upper Tribunal in MC remind us that rehabilitation concerns reasonable prospects of a person ceasing to commit crime not to the mere possibility of rehabilitation. In relation to the relative prospects of rehabilitation in the UK as opposed to Poland, as Mr Bates submitted, no evidence was provided to show that the prospects for rehabilitation in Poland were materially different from those in the UK in terms of available sources of assistance. Like many European countries Poland has had to deal with issues of drug and alcohol abuse and has developed techniques and services to deal with the same. In relation to Mr Wojtkiewicz’s reaction to underlying issues in his life, such as financial and relationship matters, there is no evidence that any work has been undertaken in the UK with regard to these aspects or work to deal with the underlying thought processes identified by the author of the OASys report.
45. In the UK, it is accepted Mr Wojtkiewicz has his parents with whom he resides and a daughter with his previous partner who is the subject of the contact application. The presence of his parents in the UK, and of other family members, did not prevent the previous offending. There is evidence that Mr Wojtkiewicz obtained some work in the UK, albeit unlawfully, in the past and there is no evidence he is an active member of any community or that employment, housing, or other opportunities would not be available to him in Poland where he was born, brought up, and educated before coming to the UK in 2006.
46. As found in MC, in the absence of integration and a right of permanent residence, the future prospects of integration cannot be a weighty factor. There is no evidence that Mr Wojtkiewicz has a right of permanent residence or evidence that he has integrated into UK society to any great degree.
47. As was found by the European Court in Dumliauskas, referred to in MC, that any prospects of rehabilitation, even if they have a significant weight, are not a trump card as a wide-ranging holistic assessment is required.
48. In relation to this matter, the appellant has failed to make out his case that his removal from the United Kingdom and resultant interference with the right of residence is an act contrary to EU law. This is a case in which the Secretary of State has made out a case that it is lawful in all circumstances to remove Mr Wojtkiewicz from the United Kingdom.
49. The three elements of the decision of the First-tier Tribunal at [36], [39] and [33] are not sufficient to rebut the public policy argument relied on by the Secretary of State.
50. The appellant also sought to rely on Article 8 ECHR as a separate ground of appeal. It has not been made out that Mr Wojtkiewicz is able to succeed under the Immigration Rules in relation to his private or family life in the UK.
51. Mr Wojtkiewicz has failed to establish family life with his former partner from who he is separated although it is accepted that as the biological father of Dorothy there will be family life recognised by Article 8 between a child and his/her biological parents. Mr Wojtkiewicz has failed to establish that the relationship he has with his own parents is such that it goes beyond the normal degree of ties/relationship between an adult child and his or her parents and as such has not established that family life recognised by Article 8 exists with them. The provision and accommodation and/or finance is not sufficient per se to establish such family life.
52. It is accepted Mr Wojtkiewicz has formed a private life in the UK since 2006 although evidence of the nature of that private life is extremely limited and included his illegal activities and period of imprisonment. The positive elements appear to be relationship with his parents, and possibly with his former partner if they have remained in contact and on friendly terms since separation.
53. What is of note is that the presence of his parents in the UK, and of other family members, did not prevent the previous offending, as noted above.
54. It is not disputed, in light of the above findings, that when considering the Razgar criteria the issue in relation to Article 8 ECHR is that of the proportionality of the decision.
55. The best interests of the child would ordinarily require regular and frequent contact with both parents although where those parents are separated such contact as may be thought to be in the child’s best interests with the parent with whom the child does not live. Mr Wojtkiewicz is seeking a contact order and so this element will be assessed by the Family Court in due course. It has not been made out that it is appropriate to adjourn these proceedings to await the outcome of the Family Court decision as it is not been shown direct contact could not be continued in Poland by way of visits or indirect contact by other established means in a period where direct contact was not possible if Mr Wojtkiewicz was removed.
56. There is a very strong public interest argument in this case and it is necessary to consider the provisions of section 117C of the Nationality, Immigration and Asylum Act 2002 in addition to the other general elements of section 117 when considering Article 8 cases in a deportation decision. Section 117C:

117C. Additional considerations in cases involving foreign criminals

(1) The deportation of foreign criminals is in the public interest.
(2) The more serious the offence committed by a foreign criminal, the greater is the public interest in deportation of the criminal.
(3) In the case of a foreign criminal (‘C’) who has not been sentenced to a period of imprisonment of four years or more, the public interest requires C’s deportation unless Exception 1 or Exception 2 applies.
(4) Exception 1 applies where –
(a) C has been lawfully resident in the United Kingdom for most of C’s life,
(b) C is socially and culturally integrated in the United Kingdom, and
(c) there would be very significant obstacles to C’s integration into the country to which C is proposed to be deported.
(5) Exception 2 applies where C has a genuine and subsisting relationship with a qualifying partner, or a genuine and subsisting parental relationship with a qualifying child, and the effect of C’s deportation on the partner or child would be unduly harsh.
(6) In the case of a foreign criminal who has been sentenced to a period of imprisonment of at least four years, the public interest requires deportation unless there are very compelling circumstances, over and above those described in Exceptions 1 and 2.
(7) The considerations in subsections (1) to (6) are to be taken into account where a court or tribunal is considering a decision to deport a foreign criminal only to the extent that the reason for the decision was the offence or offences for which the criminal has been convicted.”

57. Mr Wojtkiewicz, even on a guilty plea, was sentenced to 4 years imprisonment. Section 117C (6) states that the public interest requires deportation unless there are very compelling circumstances over and above the two exceptions found in section 117C (4) and (5).
58. In NE-A (Nigeria) - and – Secretary of State for the Home Department And between: Secretary of State for the Home Department - and - HM (Uganda) [2017] EWCA Civ 239 it was said at [15] when considering the requirements of section 117C(6):

15. None of this is problematic for the proper application of Article 8. That a requirement of “very compelling circumstances” in order to outweigh the public interest in the deportation of foreign criminals sentenced to at least four years’ imprisonment is compatible with Article 8 was accepted in MF (Nigeria) and in Hesham Ali itself. Of course, the provision to that effect in section 117C(6) must not be applied as if it contained some abstract statutory formula. The context is that of the balancing exercise under Article 8, and the “very compelling circumstances” required are circumstances sufficient to outweigh the strong public interest in the deportation of the foreign criminals concerned. Provided that a tribunal has that context in mind, however, a finding that “very compelling circumstances” do not exist in a case to which section 117C(6) applies will produce a final result, compatible with Article 8, that the public interest requires deportation. There is no room for any additional element in the proportionality balancing exercise under Article 8.

59. Exception 1 does not apply as it has not been made out that Mr Wojtkiewicz has been lawfully resident in the United Kingdom for most of his life or that he is socially and culturally integrated in the United Kingdom, and that there would be very significant obstacles to Mr Wojtkiewicz’s integration into Poland.
60. Exception 2 does not apply as it has not been made out that Mr Wojtkiewicz has a genuine and subsisting relationship with a qualifying partner, or a genuine and subsisting parental relationship with a qualifying child, and the effect of his deportation on the partner or child would be unduly harsh.
61. As neither exception is met, very compelling circumstances, over and above those described in Exceptions 1 and 2 have not been made out.
62. Accordingly, this Tribunal finds that the Secretary of State has discharged the burden of proof upon her to the required standard to show that the decision to remove Mr Wojtkiewicz is proportionate to the public interest when balancing his criminality and offending against the private and family life aspects relied upon in opposing removal. The appeal is therefore dismissed on all grounds.

Decision

63. The First-tier Tribunal Judge materially erred in law. I set aside the decision of the original Judge. I remake the decision as follows. This appeal is dismissed

Anonymity

64. The First-tier Tribunal did not make an order pursuant to rule 45(4)(i) of the Asylum and Immigration Tribunal (Procedure) Rules 2005.

I make no such order pursuant to rule 14 of the Tribunal Procedure (Upper Tribunal) Rules 2008).

Signed
Upper Tribunal Judge Hanson

Dated the 24 April 2017