Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: DA/00382/2016

THE IMMIGRATION ACTS

Heard at Newport (Columbus House)
Decision & Reasons Promulgated
On 27th February 2017
On 13th April 2017

Before

UPPER TRIBUNAL JUDGE GRUBB
DEPUTY UPPER TRIBUNAL JUDGE DAVIDGE

Between

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Appellant

and

mr vaidas siriunas
(anonymity direction NOT MADE)
Respondent

Representation:
For the Appellant: Mr M Diwnycz, Senior Home Office Presenting Officer
For the Respondent: Mr A Khan, of Anglo Thai Legal Company

DECISION AND REASONS
1. This is the Secretary of State’s appeal against a decision of First-tier Tribunal Judge Holder, promulgated on 2nd November 2016, in which the judge allowed the appeal of Mr Vaidas Siriunas, an EEA national, against deportation. The judge assessed the Appellant as being entitled only to the lower level of protection afforded by the Immigration (European Economic Area) Regulations 2006 (SI2006/1003 as amended). This was because he was unable to demonstrate that he had exercised Treaty rights in his own right, or as a family member of an EEA citizen for a continuous period of five years, because periods of his residence were unlawful. He had re-entered in breach of an earlier deportation order, and was at material times an illegal entrant. The judge also found that he could not establish ten years’ continuous lawful residence.
2. The judge correctly identified the relevant threshold of risk as set out under the European Economic Area Regulations 2006 as follows:
“Regulation 21(5)
Where a relevant decision is taken on grounds of public policy or public security it shall, in addition to complying with the preceding paragraphs of this regulation, be taken in accordance with the following principles—
(a) the decision must comply with the principle of proportionality;
(b) the decision must be based exclusively on the personal conduct of the person concerned;
(c) the personal conduct of the person concerned must represent a genuine, present and sufficiently serious threat affecting one of the fundamental interests of society;
(d) matters isolated from the particulars of the case or which relate to considerations of general prevention do not justify the decision;
(e) a person’s previous criminal convictions do not in themselves justify the decision.”
3. Finding that the threshold test at (c) set out above was not met, Judge Holder did not move on to consider the issue of proportionality.
4. The grounds argue that the Appellant’s repeated entry to the United Kingdom in breach of the deportation order made in 2004, i.e. on at least three occasions, was insufficiently factored into the judge’s consideration as to whether the Appellant represented a genuine, present and sufficiently serious threat to the UK’s fundamental interests. In short, he remained a threat to preserving the integrity of the immigration system.
5. Before us Mr Diwnycz acknowledged that he was in difficulties. In the context of an allowed appeal there would be no deportation order, to the point that it was not possible to argue that there was a risk of the Appellant acting in a way which posed a threat to the preservation of the integrity of the immigration system.
6. We find Mr Diwnycz’s indication eminently sensible. Judge Holder found that the 2004 deportation order has, in 2016, been revoked, and there had been no other offending by the Appellant since his release from prison in 2004. Further, he is rehabilitated, his life and family circumstances are stable and so protective in the context of risk. He has the support of a breadth of family members, including enjoying a long-standing relationship (since 2006), which has been strengthened by the birth of a son. Additionally, Judge Holder noted he can return to his previously established employment.
7. In all the circumstances, it was not necessary for us to hear from Mr Khan who appeared on behalf of Mr Siriunas.
8. It was properly open to the judge to find that the appellant did not represent a present threat to society as required by EU law. That finding was not irrational or unsustainable on the evidence.
Decision
9. The decision of the First-tier Tribunal Judge revealed no error of law and it stands.
10. No anonymity direction is made.

Signed E Davidge Date 09 March 2017

Deputy Upper Tribunal Judge Davidge

TO THE RESPONDENT
FEE AWARD

Not applicable

Signed E Davidge Date 09 March 2017

Deputy Upper Tribunal Judge Davidge