DA/00398/2015

• Status of case: Unreported
• Hearing date: 29 Sep 2016
• Promulgation date: 22 Mar 2017
• Publication date: 8 Mar 2022
• Last updated on: 8 Mar 2022

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: DA/00398/2015


THE IMMIGRATION ACTS


Heard at : Field House
Decision and Reasons Promulgated
On : 29 September 2016
On: 22 March 2017



Before

UPPER TRIBUNAL JUDGE KEBEDE


Between

SECRETARY OF STATE FOR THE HOME DEPARTMENT
Appellant
and

carmen iorda-gamote
Respondent


Representation:
For the Appellant: Mr S Kandola, Senior Home Office Presenting Officer
For the Respondent: Mr P Uzoechina of Patterson & Co Solicitors


DECISION AND REASONS

1. This is an appeal by the Secretary of State for the Home Department against the decision of the First-tier Tribunal allowing Ms Iorda-Gamote’s appeal against the respondent’s decision to deport her from the United Kingdom pursuant to Regulation 19(3)(b) of the Immigration (European Economic Area) Regulations 2006 (“the EEA Regulations”).

2. For the purposes of this decision, I shall hereinafter refer to the Secretary of State as the respondent and Ms Iorda-Gamote as the appellant, reflecting their positions as they were in the appeal before the First-tier Tribunal.

3. The appellant, a citizen of Romania, claims to have entered the UK in 2007 and returned to Romania after a short period of time and then returned in 2009 with her husband and children. There is no evidence of the dates of her entry to the UK. On 19 April 2011 she submitted an application for a registration certificate as a self-employed person and included her husband and children as dependants, but she withdrew that application and made a further application on 21 January 2013 which was granted on 10 June 2013.

4. Between the end of March 2007 and the beginning of July 2014 the appellant amassed six convictions for eight offences, which included convictions for theft and shoplifting. On 21 May 2014 she was convicted of theft from a person and on 4 July 2014 was sentenced to 12 months imprisonment. On 23 July 2014 she was served with a liability to deportation. On 5 August 2014 she signed a disclaimer stating that she wished to be included in the early release scheme. On 16 September 2014 a decision to make a deportation was made. On 22 September 2014 a Deportation Order was signed. The appellant did not appeal against the deportation decision whilst in the UK and on 6 October 2014 she was deported from the UK.

5. On 27 May 2015 the appellant attempted to re-enter the UK in a car, accompanied by her husband and her son (the driver) and daughter-in-law. They were all stopped by British immigration officials in Calais. The appellant was found in the rear foot well in the car covered in blankets and her husband, son and daughter-in-law were accused of facilitating her illegal entry into the UK. The appellant was refused leave to enter the UK on 28 May 2015 and papers produced by the respondent suggest that her husband, son and daughter-in-law were refused admission to the UK.

6. On 26 August 2015 the appellant lodged an appeal against the respondent’s decision from outside the UK. On 18 April 2016 she requested permission to re-enter the UK to make submissions in person at the hearing of her appeal, but that request was refused by the respondent in a letter dated 22 April 2016.

7. The appellant’s appeal was heard in the First-tier Tribunal on 24 May 2016 by First-tier Tribunal Judge Herbert. Judge Herbert heard oral evidence from the appellant’s husband who claimed that he and his wife had started working upon their arrival in the UK in 2009 but his wife had subsequently stopped working due to ill-health and he had continued to work and support the family. He produced documents from HMRC as proof of his employed status. He also said that he and his wife suffered discrimination in Romania as they were Roma. The appellant’s husband accepted that he attempted to bring his wife back to the UK in May 2015 but denied having attempted to smuggle her into the country and said that she believed she had permission to return.

8. Judge Herbert accepted the appellant’s husband’s evidence and accepted that the appellant was exercising treaty rights from her arrival in 2007. He did not consider that her residence had been broken by her return to Romania prior to coming back to the UK in 2009. He accepted that she had five years’ residence in the UK and found that she did not present a genuine, present and sufficiently serious threat to the public justifying deportation. He allowed the appeal.

9. The respondent sought, and was granted, permission to appeal to the Upper Tribunal and the appeal came before me on 29 September 2016.

10. Both parties made submissions before me. Mr Kandola submitted that the judge had failed to explain how the appellant had acquired a right to permanent residence in the UK, that he had failed to consider relevant factors in assessing proportionality and that his credibility findings were inadequately reasoned. Mr Uzoechina submitted that the judge was entitled, on the oral and documentary evidence before him, including the HMRC documents, to conclude that the appellant’s husband was working throughout the relevant period and that the appellant was exercising treaty rights from 2007 to 2012 and thereafter. He was therefore entitled to find that the appellant had acquired a right to permanent residence. He submitted that the judge had allowed the appeal on three bases, namely under the EEA regulations, on the basis of section 55 of the Borders, Citizenship and Immigration Act 2009 and under Article 8. The respondent had not challenged the latter two.

11. Mr Kandola, in response, submitted that it could not be read into the decision that the judge allowed the appeal under Article 8, as the focus was on the EEA regulations.

Consideration and Findings

12. Contrary to Mr Uzoechina’s submissions, it is difficult to conclude that the judge allowed the appeal on Article 8 grounds as well as under the EEA Regulations, since the focus appears to have been on the EEA Regulations. Mr Uzoechina’s submission that the appeal was allowed under section 55 is misconceived, given that there is no such independent ground of appeal. In any event I do not consider there to be any clear and proper findings made by the judge in any respect, and consider that any favourable conclusions that he reached under the EEA Regulations or possibly on Article 8 grounds are inadequately reasoned.

13. Nowhere in his decision did the judge make a clear finding that the appellant had acquired a permanent right of residence in the UK, although his comments at [97] suggest that that was his conclusion. The closest he came to finding that such a right had been acquired was at [70], when he found that the appellant had five years’ continuous residence in the UK. He did not explain, however, how he concluded at [69] that she had not spent more than six months outside the UK from 2007, when the evidence before him suggested that she had (see paragraph 1 of the skeleton argument). Neither did he explain how he was able to conclude (if indeed that was his conclusion) that the appellant had been exercising treaty rights for that period. He referred to her exercising treaty rights at [68] but did not explain the basis for such a conclusion, other than that her husband had said that she was. Although the judge referred to the evidence from the HMRC relating to her husband, he failed to explain how that demonstrated five years by either the appellant or her husband of exercising treaty rights. Although not a matter apparently raised before the judge, Mr Kandola also properly pointed out that Romania was initially subject to the accession regulations and accordingly the appellant and her husband would have had to register in order to be permitted to work, yet there was no evidence of registration until 2013. For all of these reasons the judge simply failed to provide any proper reasons for concluding that the appellant had acquired a permanent right of residence in the UK.

14. Although the judge’s findings at [93] and [97] suggest that he considered the respondent’s decision on the alternative basis that a right to permanent residence had not been acquired, no proper reasons were given to support his conclusion that the appellant did not represent a genuine, present and sufficiently serious threat to the public. It also appears that he conflated regulation 21(5)(a) and (c), undertaking a balancing act in regard to regulation 21(5)(c). His assessment of risk, which was the relevant test in regulation 21(5)(c), consisted of little more than his findings at [92]. Yet with regard to those findings, no adequate reasons were given, nor was there any proper basis, for concluding that the appellant had not re-offended since 2014 and his conclusion about the attempt to return to the UK failed to take account of the evidence before him. The judge failed to consider that the appellant’s explanation, that she believed she had the right to return to the UK after 12 months, was contradicted by the fact that her attempt to return to the UK was made less than 12 months after the deportation decision and her deportation. Further, the judge failed to give any consideration to the evidence of the circumstances in which she attempted to return to the UK, as set out in the CID notes. Mr Uzoechina submitted that that evidence had never been served on him and he was unaware of it, but it is clear that it was produced at the hearing before the First-tier Tribunal as the judge referred to it at [45] and also referred at [2] to the decision of 22 April 2016 which was the first page of the bundle containing the CID notes. Further, Mr Kandola produced a note from the presenting officer at the hearing before the First-tier Tribunal confirming that the CID notes had been produced.

15. The respondent’s grounds also take issue with the judge’s positive credibility findings in respect to the appellant and her husband. In light of my comments above about the judge’s failure to consider the circumstances of the appellant’s attempted re-entry to the UK I find merit in that ground. At [69] the judge accepted that the appellant’s husband was a credible witness and accepted his evidence and the appellant’s evidence at face-value, yet made no attempt to assess credibility in the light of the CID notes and the appellant’s history of offending.

16. It was Mr Uzoechina’s submission that even if the judge’s decision under the EEA regulations was not upheld, his findings on Article 8 and the best interests of the appellant’s children had not been challenged by the respondent and therefore could not be set aside. I disagree. It is clear from the respondent’s grounds that the judge’s findings and conclusions as a whole were challenged. As I said earlier, it is not at all clear that the judge actually allowed the appeal on a separate Article 8 ground, and it was not open to him to allow it under section 55 of the 2009 Act as Mr Uzoechina suggested. Any findings which were made under Article 8 were in any event clearly infected by the same errors as referred to above in relation to the assessment of the appellant’s right of residence in the UK, the risk she posed to the public and her credibility in general.

17. For all of these reasons the judge’s decision cannot stand. His findings and conclusions are simply unsustainable in all respects. The appropriate course is for the case to be remitted to the First-tier Tribunal to be heard completely afresh.

DECISION

18. The Secretary of State’s appeal is allowed.

19. The making of the decision of the First-tier Tribunal involved the making of an error on a point of law. The decision is set aside. The appeal is remitted to the First-tier Tribunal, pursuant to section 12(2)(b)(i) of the Tribunals, Courts and Enforcement Act 2007 and Practice Statement 7.2(b), to be dealt with afresh, before any judge aside from Judge Herbert.



Signed
Upper Tribunal Judge Kebede