Tribunal decisions

The decision

IAC-AH-V1

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: DA/00377/2016

THE IMMIGRATION ACTS

Heard at Field House
Decision & Reasons Promulgated
On 9 March 2017
On 10 March 2017

Before

UPPER TRIBUNAL JUDGE KAMARA

Between

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Appellant
and

FRANCISCO CAMANCHO PIRES DA CRUZ
(ANONYMITY DIRECTION not made)
Respondent

Representation:
For the Appellant: Mr P Armstrong, Senior Home Office Presenting Officer
For the Respondent: Ms B Jones, counsel instructed by Bail for Immigration Detainees

DECISION AND REASONS

Introduction
1. This is an appeal against the decision of First-tier Tribunal Judge GJ Ferguson, promulgated on 8 November 2016. Permission to appeal was granted by Upper Tribunal Judge Kekić on 23 January 2017.
Anonymity
2. No direction has been made previously, and there is no reason for one now
Background
3. The respondent is a Portuguese national. Prior to his entry the United Kingdom, on 3 May 2007, he was convicted, in Portugal, of robbery with a firearm and sentenced to 7 years’ imprisonment. On the same occasion, he was also convicted of possession of a firearm without a certificate, for which he received no separate penalty.
4. The respondent states that he first entered the United Kingdom during 2012.
5. On 12 February 2013, he was convicted of drink driving; on 6 October 2014, he was convicted of battery and on 21 April 2015 he was convicted of drink driving and disqualified for driving for 3 years. In addition, the respondent accepted a caution for possession of cannabis dating from 28 January 2013.
6. On 8 November 2014, the Secretary of State attempted to notify the respondent of his liability to deportation, however his whereabouts were unknown. On 3 February 2015, a decision to make a deportation order was made and the said order was signed. All those documents being served to file.
7. During June 2016, the respondent was convicted of driving while disqualified on the date on 21 April 2015, the day upon which he was disqualified from driving.
8. The respondent left the United Kingdom at some stage and attempted to return on 18 June 2015 but was unable to because of the deportation order. Nonetheless, he entered the United Kingdom unlawfully, via the Republic of Ireland, on 18 July 2015. The respondent made further submissions to the effect that he had been living in the United Kingdom for nearly four years; that he had always worked; that he was rehabilitated and that he had a two-year old daughter with a former partner. Referring to his conviction for assault, he explained that this was against his current partner and that it occurred when he was drunk.
9. Following the respondent’s further submissions, the deportation order was revoked and substituted with one dated 28 July 2016. The accompanying decision of the same date relied on the reasons given in an earlier decision dated 23 February 2016 and advised the respondent that his appeal under the Immigration (European Economic Area) Regulations 2006 was certified under section 24AA of the said Regulations and that his human rights claim was certified under 94B of the Nationality, Immigration and Asylum Act 2002.
The hearing before the First-tier Tribunal
10. At the hearing before the First-tier Tribunal, the judge was informed of the further conviction in June 2016 for driving while disqualified. The respondent was the only witness. The judge noted that the respondent had not committed similar offences to those for which he was convicted in Portugal; decided that he did not pose a genuine, present and sufficiently serious threat to society and allowed his appeal.
The grounds of appeal
11. The grounds of appeal in support of the application to the Upper Tribunal argued that the judge materially misdirected himself; provided inadequate reasoning and failed to resolve a conflict in the evidence. The following points were made.
12. It was argued that the offences committed did not have to be of a similar nature for an offender to meet the lowest threshold. The judge erred by concluding that the last offence which led to a custodial sentence (driving while disqualified) was caused by stupidity rather than disregard for the law. The appellant had returned to the United Kingdom, circumventing the law while knowing he had a deportation order against him. The respondent explained his conduct by referring to his relationship with a partner and child, however the partner did not attend the hearing and he has not maintained contact with his child since his entry. Lastly, it was said that the judge failed to adequately consider that alcohol was the trigger for the respondent’s offences and that he did not engage with Alcoholics Anonymous or other programmes prior to immigration detention. It was said that the respondent had a propensity to reoffend and there was a continuing risk to the public.
13. Permission to appeal was granted on the following basis:
“The judge’s findings are set out rather briefly at paragraphs 21-24. It is arguable that he has failed to engage with the matters raised by the respondent in her grounds and in the course of her submissions at the hearing.”
14. The respondent’s Rule 24 response, received on 2 March 2017, robustly defended the judge’s decision.
The hearing
15. The Rule 24 response had not made its way to Mr Armstrong. I therefore arranged for him to have a copy and time to consider it. Mr Armstrong placed reliance on the first headnote of the decision in Chege (“is a persistent offender”) [2016] UKUT 00187 (IAC). Other than that, Mr Armstrong added very little to the grounds and reiterated the submissions made to the judge at the hearing. Commenting on the Rule 24 response, Mr Armstrong criticised the judge for drawing a distinction between the offences because drink driving and battery were sufficiently serious offences which could have killed someone. He said the judge did not look at all the offending in totality or explain why he did not consider the offending in the UK to be sufficiently serious. Furthermore, the judge made no findings as to whether the respondent’s convictions made him a persistent offender.
16. In reply, Ms Jones, had little to add to the Rule 24 response or Mr Armstrong’s submissions. She argued that the grounds amounted to disagreement with the weight attached by the judge to the various issues. The judge took everything into account, including the respondent’s return to the United Kingdom via Ireland, as set out at [13] and there was no need to reiterate this in his findings.
17. In closing, Mr Armstrong submitted that the judge had not looked at the trigger for the respondent’s offending, that is his alcohol dependency. At this stage Ms Jones interjected to state that there was no evidence regarding the extent of the respondent’s alcohol use other than his own recognition that the background to the recent offences might represent an issue to be addressed.
18. At the end of the hearing, I announced that I was not satisfied that the judge made a material error of law and that his decision was upheld. My reasons are as follows.

Decision on error of law
19. There is no error with the judge’s comment at [21], that the respondent did not pose a risk of reoffending of a similar type to that committed in Portugal, that is armed robbery. There is simply no evidence to the contrary. The judge did not, as paragraph 6 of the grounds infers, stipulate that all the offending needs to be of a similar nature to meet the lowest threshold in Regulation 21.
20. Paragraph 7 of the grounds argue that the judge failed to decide whether the respondent’s convictions in the United Kingdom amounted to persistent offending. This argument was not made by the presenting officer before the judge. Nonetheless, the judge set out the totality of the respondent’s offending both in Portugal and the United Kingdom in his summary of the evidence as well as under his findings at [20-25] of the decision and reasons. The judge directed himself appropriately as to the relevant test, referring to MC (Essa principles recast) Portugal [2015] UKUT 520(IAC). He correctly noted that for him to conclude that the respondent’s personal conduct represented a genuine, present and sufficiently serious threat, it was necessary for there to be “a propensity to re-offend or an unacceptably high risk of re-offending.” The judge essentially found at [24] that there was no pattern of offending, when comparing the 2007 conviction with the convictions in the United Kingdom.
21. Contrary to what was argued on behalf of the Secretary of State, the judge accepted that the respondent’s offending in the United Kingdom was serious and that the impact of domestic violence and driving under the influence of alcohol can be significant. Importantly, the judge notes that the sentences given to the respondent “reflect that in the spectrum of criminal behaviour these were not being treated as being sufficiently serious offences beyond the seriousness of the fact that they are criminal conduct for which he has been punished.” It is important to note that there was no professional risk assessment before the judge, let alone evidence of alcohol dependency.
22. The judge’s description of the respondent’s last offence as being borne out of stupidity does not undermine an otherwise adequate decision. He was certainly entitled to view the respondent’s belief that he could move his vehicle from one parking space to another immediately after a driving ban as not being the most intelligent of decisions. It is apparent that the judge accepted the respondent’s explanation that he was concerned regarding a penalty charge notice if he left his vehicle where it was and that it was not a further example of the respondent’s lack of respect for law and order.
23. It is not accurate to say the judge did not consider the fact that the respondent re-entered the United Kingdom in breach of a deportation order, travelling via the Republic of Ireland. These facts are set out in [2] of the decision and the judge records the presenting officer’s submissions on this point at [13]. There is no reason to believe that this matter slipped the judge’s mind when he was assessing the respondent’s personal conduct.
24. Paragraph 9 of the grounds criticises the judge for not taking into consideration the fact that the respondent has not seen his child since his return to the United Kingdom and that his partner did not attend the hearing. The judge records the respondent’s evidence on these issues but ultimately concluded at [25], that the respondent’s conduct did not amount to a genuine, present and sufficiently serious threat. Owing to this finding, there was no need for the judge to address these issues further as part of a proportionality consideration.
25. There is no merit in paragraph 10 of the grounds given the lack of evidence that the respondent would benefit from Alcoholics Anonymous or any other programme, none of which were available to him in immigration detention in any event.
26. The respondent’s grounds amount to no more than disagreement with the judge’s clear and sustainable findings.

Conclusions
The making of the decision of the First-tier Tribunal did not involve the making of an error on a point of law.
The decision of the First-tier Tribunal is upheld.

Signed Date

Upper Tribunal Judge Kamara