Tribunal decisions

The decision

IAC-FH-NL-V1

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: da/00373/2016

THE IMMIGRATION ACTS

Heard at Field House
Decision & Reasons Promulgated
On 2 February 2017
On 14 February 2017

Before

UPPER TRIBUNAL JUDGE JORDAN

Between

Secretary of State for the Home Department
Appellant

and

cornel liviu lagu

Respondent

Representation:

For the Appellant: Mr S. Walker, Home Office Presenting Officer
For the Respondent: Mr D. O'Callaghan, Counsel, instructed by the Aire Centre

DECISION AND REASONS

1. The Secretary of State appeals against the determination of First-tier Tribunal Judge Walker promulgated on 17 November 2016. I shall however refer to Mr Lagu as the appellant as he was before the First-tier Tribunal. He is a citizen of Romania and was convicted of an offence in Spain which involved a finding that he was travelling in a car in which there were 52 kilos of hashish in the boot of that car. He was convicted by the Spanish courts and was sentenced to a term of imprisonment of 41 months. He was kept in detention in Spain, without trial, for about eighteen months and, shortly after his conviction, was released. The Secretary of State relied upon that conviction as justifying a decision to remove him under the EEA Regulations.
2. At the hearing before the Immigration Judge the circumstances in which the appellant advanced his case are by no means clear. The fact of his conviction was of course accepted by the appellant himself but not apparently the circumstances as to his criminality. That was something that was advanced by him in his evidence. The First-tier Tribunal Judge concluded that the Secretary of State had failed to establish that the appellant's conduct represented a sufficiently serious threat. As a result of that he allowed the appellant's appeal under the 2006 Regulations.
3. The grounds of appeal assert that paragraph 29 of the determination is not sustainable. Paragraph 29 reads as follows:
"The only area of concern I have is with regard to the Appellant's answers in cross-examination about what had happened to the others and who were involved with the car containing the Drugs. The Appellant's evidence was that a friend and employer had insourced (sic) him to a third person and who own that motor vehicle. The Appellant has said today that he did not know what had happened to them, whether they had been charged or whether they had been imprisoned. I do not find it credible that the Appellant knows nothing of these two individuals especially as they were so closely tied in with him and the vehicle that he was driving. Nevertheless, as this concern does not impinge upon the fact that the Respondent's only evidence is the conviction and nothing else."
4. Challenge is made in grounds 1(d) to (e) to those comments in paragraph 29. It is said that the First-tier Tribunal Judge found that the appellant did not accept responsibility for his crime and had provided incredible evidence in relation to his involvement:
'(d) Despite this, the First-tier Tribunal Judge has not considered if the appellant is at risk of re-offending. It is submitted that the appellant has not provided any evidence that provides a direct answer to the required answer under the EEA Regulations. The key question is, are the offending triggers/risk factors still present? It is argued that the First-tier Tribunal Judge was incorrect to assume due to lack of evidence relating to the crime that the offending risk factors had been removed.
(e) The FtT finds at paragraph 29 of the determination that the appellant continues to deny his involvement in the serious crime of trafficking large amounts of drugs across international borders.'
5. Mr Walker, having consulted the note of the hearing before the First-tier Tribunal, no longer relies on those grounds. As a result of Mr Walker not placing any reliance upon those challenges in (d) and (e) of the grounds of appeal, the substance of the appeal as voiced in these grounds cannot be made out. I fail to see what the error is in the judge's reasoning in paragraph 29. It seems to me to be relatively benign. I therefore fail to see what the error of law is.
6. If paragraphs (d) and (e) are no longer relied upon by the respondent I am in some considerable doubt as to what case is advanced by the Secretary of State by way of a challenge to the decision and in those circumstances it is clear that the grounds have not been made out.
7. There may have been an opportunity to amend the grounds but Mr Walker did not seek to pursue an application for an adjournment to remodel the grounds. I think he was wise not to do so because there have been a number of requests, I am told, for the grounds of appeal to be served upon the appellant and that had not been done. It follows that Mr O'Callaghan who appeared on behalf of the appellant had not been able to consider the grounds until today. In such circumstances he cannot be expected to have made the points he has made in relation to the conduct of the appeal before the judge. Confused as I am as to the circumstances in which the judge came to deal with this appeal, I am satisfied that the grounds of appeal as currently drafted have not been made out.
DECISION
(i) I dismiss the appeal of the Secretary of State.
(ii) The Secretary of State has not established that the Judge made an error on a point of law and the original determination of the appeal shall stand.

ANDREW JORDAN
JUDGE OF THE UPPER TRIBUNAL