Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: DA/00374/2015

THE IMMIGRATION ACTS

Heard at Royal Courts of Justice, Belfast
Decision & Reasons Promulgated
On 1 August 2016
On 28 September 2016

Before

UPPER TRIBUNAL JUDGE O'CONNOR

Between

Gabor [Z]
(ANONYMITY DIRECTION NOT MADE)
Appellant
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: Mr S McTaggart, instructed by John McCaffrey & Co Solicitors
For the Respondent: Mr M Matthews, Senior Presenting Officer

DECISION AND REASONS
1. The appellant is a citizen of Hungary, born on 22 September 1978. He claims to have arrived in the United Kingdom in, or around, 2007. Prior to his arrival he served a prison sentence of six years in Hungary, having been convicted of indecent assault, blackmail, theft and assault occasioning actual bodily harm.
2. Not deterred by his lengthy prison sentence in Hungary, the appellant continued his criminal behaviour in the United Kingdom, resulting in convictions for entering into an arrangement to acquire criminal property, transferring criminal property and VAT Fraud, which led to two periods of imprisonment - the first, for 4 months in December 2012 and, the second for 10 months in December 2013.
3. On 4 August 2015 the respondent made a deportation order against the appellant. A lengthy letter setting out the reasons for such decision was served on the appellant on 10 August 2015.
4. The appellant's appeal to the First-tier Tribunal ("FtT") was heard by First-tier Tribunal Judge Fox on 23 February 2016 and dismissed under the Immigration (EEA) Regulations 2006 and on Article 8 ECHR grounds in a decision promulgated on 29 March 2016.
5. Permission to appeal to the Upper Tribunal was granted by First-tier Tribunal Judge Nightingale in the following terms, in a decision of 20 April 2016:
"3. It is arguable that the judge failed to state, at paragraph 6, the standard of proof applied. It is also arguable that the judge fell into error in finding that the appellant was not a jobseeker notwithstanding the fact that he was, at the date of the hearing, in receipt of jobseeker's allowance, instead speculating about a future withdrawal of benefits. It is also arguable that the judge failed to give adequate reasons for finding that the appellant presented a risk of reoffending. The grounds are arguable and permission is granted on all grounds pleaded."
6. Thus the matter came before me.
Discussion and Decision
7. The appellant's grounds of appeal are lengthy, but can be summarised thus:
(i) The FtT erred in failing to identify, and apply, the correct burden and standard of proof;
(ii) The FtT's conclusion that there is a high risk of the appellant reoffending is irrational and is, in any event, inadequately reasoned;
(iii) The FtT's conclusion that the appellant is not a jobseeker is irrational, given that he is in receipt of jobseeker's allowance. In any event, the FtT unlawfully speculated as to what a decision maker in the relevant SSA department would conclude in the future;
(iv) The FtT ignored the evidence given by both the appellant and his partner as to the involvement of social services in their family affairs;
(v) The FtT erred in failing to take into account the lack of links that the appellant has with his home country when coming to its conclusion under regulation 21(6) of the 2006 EEA Regulations;
(vi) The FtT erred in failing to take into account the appellant's family life when assessing the issue of proportionality under the EEA Regulations;
(vii) The FtT's conclusion on Article 8 is legally flawed by reason of: (a) a failure to determine whether the appellant is a foreign criminal; (b) irrationally concluding that the appellant has no family life in the UK; (c) a failure to have regard to the interests of the appellant's eldest child; and, (d) misdirecting itself in paragraph 48 of its decision.
8. Turning to the first of these grounds, in relation to which I allowed the parties to make further written submissions after the hearing.
9. In paragraph 6 if its decision the FtT directed itself that the burden of proof lies on the appellant to demonstrate that his deportation to Hungary would lead to a breach of the Immigration (EEA) Regulations 2006. In their respective written submissions both parties recognise this to be a misdirection in law.
10. In his submissions Mr Matthews, in explanation for SSHD's position, drew the Tribunal's attention to following passage from the Court of Appeal's decision in SSHD v Straszewski [2015] EWCA 1245:
11. It is convenient to consider first the extent to which wider factors, such as the public interest in deterrence and the need to demonstrate public revulsion at the offender's conduct, are factors that can properly be taken into account when deciding whether the removal of an EEA national who has acquired a permanent right of residence is justified on serious grounds of public policy or public security. RU (Bangladesh), on which Ms Chan placed some emphasis, was a case involving the deportation of a foreign criminal under section 32 of the UK Borders Act 2007. In such cases the statutory scheme envisages that the person facing deportation bears the burden of showing that his removal would not be in accordance with the law, usually because of the interference with his fundamental rights that it would entail. In such a case it is well established that the need to deter other potential wrongdoers and to reflect public revulsion at the offence in question are aspects of the public interest in deportation and as such are important factors for the decision-maker to take into account. Miss Chan submitted that they are equally important in a case falling within regulation 21. In my view, however, that fails to recognise the very different context in which the question of deportation arises.
12. One important purpose of the Citizenship Directive was to protect and support the Treaty right of free movement of nationals of Member States and, by extension, nationals of other EEA states. The origin and purpose of the Regulations are, therefore, both fundamentally different from those of section 32 of the UK Borders Act, which is directed to removing from this country aliens who have no right to be here other than in accordance with leave to remain granted by the Secretary of State. Leaving aside whatever protection against removal the European Convention on Human Rights may afford them, their position in law is inherently less secure than that of EEA nationals who are entitled to exercise Treaty rights. In a case where the removal of an EEA national would prima facie interfere with the exercise of his Treaty rights it is for the member state to justify its action. It is for this reason that I am unable to accept Ms Chan's submission that in a case of the present kind the burden of showing that the decision is not in accordance with the law lies on the person who is to be deported.
11. Following the decision in Straszewski, it is clear that the burden of proof in demonstrating that deportation of an EEA national is in accordance with the law rests firmly with the Secretary of State and thus that the FtT's decision is accordingly legally flawed for its failure to recognise this.
12. Despite Mr Matthews concession as to the error to be found in the FtT's decision it is, nevertheless, submitted that the decision should stand because the FtT "would inevitably have come to the same conclusion had they appreciated that the burden of proof was on the Respondent. That is because the First-tier Tribunal were satisfied on the evidence that the appellant demonstrated a high risk of re-offending (paragraph 12), that he hadn't learned any lessons (paragraph 13), that he was not rehabilitated (paragraph 13) and that he failed to acknowledge the full role in his offending which undermined his claim that he had turned over a new leaf (paragraph 22)."
13. I reject this submission. In my view it cannot be said that the FtT would inevitably have come to the same conclusion had it lawfully directed itself that it was for the SSHD to justify her decision. If the FtT's decision is read as a whole, it is plain that its misdirection infects not only the conclusion but the core findings therein. An example of this is found in paragraph 19 of the decision in which the FtT states:
"?I find that the Appellant has failed to demonstrate that he has mended his ways. He presents with a genuine assessment of threat to reoffending thereby affecting one of the fundamental interests of society. His personal conduct is such that he cannot be relied upon not to reoffend."
14. The reasoning leading to the conclusion set forth in this passage is clearly underpinned by a misunderstanding that it was for the appellant to demonstrate that he is not a threat to the fundamental interests of society. In addition, I find that when the relevant factual matrix of the appellant's case is considered in the round it cannot be said that a Tribunal would not be entitled to come to a conclusion favourable to the appellant. In short, I have no hesitation in finding that the identified error in the FtT's decision is one which is material i.e. capable of affecting the outcome of the appeal. For this reason, I set aside the FtT's decision.
15. Although it is not necessary for me say any more than that which I have said above, I further observe that the FtT's consideration of the issue of proportionality under the 2006 EEA Regulations is also vitiated by legal error, in that it is wholly deficient of reasoning. The fact of such deficiency cannot be countered by the submission that the rationale deployed by the FtT on the issue of proportionality under Article 8 ECHR can be readily be imported into such assessment under the EEA Regulations - there are different, and additional, public interest considerations in play in the former (see, for example, paragraph 14 of Straszewski).
16. For the reasons given above, I find that the FtT's decision contains an error of law capable of affecting the outcome of the appeal and it is set aside. Given the fundamental nature of the errors I further conclude that it is appropriate for the appeal to be remitted to the FtT to be considered afresh by a judge other than judge Fox.
Notice of Decision

The FtT's decision is set aside and the appeal is remitted back to the FtT to determine afresh.

Signed:

Upper Tribunal Judge O'Connor
8 September 2016