Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: DA/00345/2015

THE IMMIGRATION ACTS

Heard at: Field House
Decision & Reasons Promulgated
On: 3rd October 2016
On: 8th November 2016

Before

UPPER TRIBUNAL JUDGE BRUCE

Between

Marcel Sandu
(no anonymity direction made)
Appellant
And

The Secretary of State for the Home Department
Respondent

For the Appellant: Ms. C. Fletcher, Counsel instructed by Sharma Law Solicitors
For the Respondent: Ms J. Isherwood, Senior Home Office Presenting Officer

DETERMINATION AND REASONS
1. The Appellant is a national of Romania date of birth 13th October 1971. On the 6th June 2016 the First-tier Tribunal (Judge Wellesley-Cole) dismissed his appeal against a decision to deport him under s5(1) of the Immigration Act 1971, made with reference to the Immigration (European Economic Area) Regulations 2006. The Appellant was granted permission to appeal against that decision on the 4th July 2016 by Designated First-tier Tribunal Judge Macdonald.
2. The decision to deport the Appellant was made on the 22nd April 2015. The Secretary of State had been made aware that the Appellant had numerous criminal convictions in Romania, and at least one in France. The Respondent took the view that there was a genuine, present and sufficiently serious threat affecting one of the fundamental interests of society in the Appellant's continued presence in the United Kingdom. Although the Appellant had been convicted of offences including deception, fraud and theft, the decision focussed on his two convictions for the trafficking and pimping of women (and in one case a minor) for the purpose of sexual exploitation. The refusal letter said this:
"23. Trafficking has a harrowing effect on the mental, emotional and physical wellbeing of the victims, usually women and girls, ensared in its web. Beyond the physical abuse, trafficking victims suffer extreme emotional stress, including shame, grief, fear, distrust and suicidal thoughts.
24. Sex trafficking promotes societal breakdown by removing women and girls from the families and communities. Trafficking fuels organised crime groups that usually participate in many other illegal activities, including drug and weapons trafficking and money laundering. Sex trafficking burdens public health systems, erodes government authority, encourages widespread corruption and threatens the security of vulnerable populations".
3. When the matter came before the First-tier Tribunal the Appellant placed reliance on the following evidence and submissions:
a) He had arrived in the UK in August 2009;
b) He has had several jobs since he came, including at the date of hearing, leafleting;
c) His teenage daughter (aged 18) was now resident in the UK;
d) He is unwell, suffering from severe diabetes that has resulted in him having his toe amputated and experiencing problems with his vision;
e) He expressed remorse for his crimes;
f) He has been rehabilitated. In support of this contention he placed particular reliance on a letter from his lawyer in Romania, a Mr Lucian, who writes that under the Romanian constitution the Appellant can now apply for a court declaration to the effect that he is rehabilitated, having been convicted of no further crimes in Romania.
4. The First-tier Tribunal found as follows. It was not persuaded that the Appellant was rehabilitated, and that there was a genuine threat that he may commit another criminal offence. In its assessment of proportionality the Tribunal noted the evidence about the Appellant's ill-health and his relationship with his daughter. Now 18, she is training to be a nurse in the UK. The Tribunal recognised that the Appellant had done some work since he arrived in the UK and that he did therefore contribute to the economy. It was not however accepted that his removal would be disproportionate. The Tribunal assessed that the Appellant had lived most of his life in Romania and there were no obstacles to his return there. He could work towards his rehabilitation in Romania. The Tribunal dismissed the appeal under the Immigration (European Economic Area) Regulations 2006 and on Article 8 grounds, essentially applying the same reasoning to both matters.
The Appellant's appeal
5. The grounds are that the First-tier Tribunal has materially erred in approach as follows:
a) The Tribunal erred in law in its focus on the Appellant's past convictions, contrary to the Regulations and the caselaw, see for instance Straszewski [2015] EWCA Civ 1245 in which it was held that public revulsion at past crime had no part to play in a forward looking assessment of risk;
b) The finding that the Appellant was not rehabilitated and continued to pose a risk ran contrary to the Tribunal's own finding that the Appellant had not committed any offences since 2013, the fact that he had pleaded guilty on each occasions and the letter from the lawyer which stated in terms that he was considered rehabilitated under Romanian law;
c) The Tribunal erred in placing insufficient weight on the fact that the Appellant has committed no offences in the UK, and is exercising treaty rights here.
6. At the hearing Ms Fletcher submitted a skeleton argument in which she raised issues relating to Article 8 ECHR. Ms Isherwood objected to this on the basis that this point was not raised in the grounds. I agreed and declined to hear submissions on this matter. Apart from the fact that the Secretary of State had not been put on notice and permission had not been granted on that basis, it was very difficult to see how a proportionality assessment under Article 8 would in these circumstances yield a different result from one conducted under the Regulations.
My Findings
7. The central complaint made is that the Tribunal did not look properly at the evidence of rehabilitation. Ms Fletcher makes three points, all of them equally without merit.
8. First, she points to the fact that the Appellant pleaded guilty whenever he was convicted. She submits that this was good evidence of his acceptance of responsibility and remorse. In some cases that can be true. One only has to look at the chronology to see that it is a correlation not justified on the evidence in this case. On the 23rd January 2001 the Appellant was convicted at Iasi Tribunal of a deception offence, and received a suspended sentence. I accept Ms Fletcher's assertion that he pleaded guilty on that occasion. Just over a year later he was convicted by the same Tribunal of trafficking and deception. He pleaded guilty. He received a sentence of three years' imprisonment. On the 18th March 2014, he found himself back before the same Tribunal. Again, he pleaded guilty, this time to offences including trafficking and coercion, pimping, and trafficking a minor. He cannot long have been out of prison when he committed further trafficking offences, because on the 10th July 2006 he was convicted - again on a guilty plea - of the same and sentenced to eleven years in prison. It is evident from the foregoing that the four guilty pleas that the Appellant entered in criminal proceedings in Romania do not appear to have indicated genuine contrition or remorse. In light of that it is hardly surprising that the First-tier Tribunal was not prepared to treat the last of the set - a guilty plea to theft and fraud charges in France in 2013 - as evidence that he would not offend again.
9. The second point that was made about risk rests on a letter from the Appellant's Romanian lawyer. Ms Fletcher submits that the Tribunal was bound to give substantial weight to this letter, which confirmed that he was now eligible to be declared 'rehabilitated' under Romanian law. The basis of that declaration would be the fact that he has not committed any further offences in Romania since his last conviction in 2006. I find that this would be a significant fact, but for two matters. The first is that the Appellant appears to have left Romania within a month of his early release from prison, and made his way to the UK. The second is that he has been convicted of a further offence: he was apparently drawn to commit fraud and aggravated theft whilst "on holiday" in France in 2013. In those circumstances there can be no error in the Tribunal viewing the lawyers letter with some degree of circumspection.
10. Finally there was the fact that the Appellant has not been convicted of anything since that court appearance in France in 2013. This is a matter that was expressly recognised by the Tribunal in its determination. It was not a matter which was capable of displacing the very substantial concerns raised by his conduct overall.
11. There was no error in law in the Tribunal's finding that this Appellant continued to pose a genuine present and sufficiently serious threat.
12. As to proportionality the matters of the Appellant's health, family ties and work in the UK were all expressly considered. The Tribunal was entitled to conclude, on the evidence before it, that this man who had spent the vast majority of his years in Romania was best rehabilitated there. In this regard the determination notes that he continues to speak fluent Romanian whereas he required an interpreter in English in order to take part in the proceedings.
13. One other matter that arose during hearing - although not in the grounds - concerned the Appellant's length of residence in the UK. Ms Fletcher asserts that the Appellant had accrued a permanent right of residence as a result of his continuous five years in the UK in accordance with the Regulations. She submitted that the First-tier Tribunal failed to consider this matter, and so whether the Appellant has attracted an enhanced level of protection. I note that the Respondent contests the claim on other grounds but I think it sufficient to note that the Appellant cannot possibly have accrued such a period of continuous residence, since we know that in 2013 he was committing crimes in France.

Decisions
14. The grounds are not made out and the appeal is dismissed. The determination of the First-tier Tribunal is upheld.
15. There is no order for anonymity.

Upper Tribunal Judge Bruce
17th October 2016