Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: DA/00428/2019

THE IMMIGRATION ACTS

Heard at Royal Courts of Justice
Decision & Reasons Promulgated
On the 24th January 2022
On the 28th April 2022

Before

UPPER TRIBUNAL JUDGE PITT

Between

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Appellant
and

Jason Patrick Da Cunha Furtado
(ANONYMITY DIRECTION NOT MADE)
Respondent

Representation:
For the Secretary of State: Mr E Tufan, Senior Home Office Presenting Officer
For Mr Furtado: Ms S Ferguson, Counsel, instructed by Freemans Solicitors

DECISION AND REASONS
1. This is a remaking of Mr Furtado’s appeal against a decision of the respondent dated 20 August 2019 to deport him under regulation 23(6)(b) of the Immigration (European Economic Area) Regulations 2016 (the “EEA Regulations”).
2. For the purposes of this decision I refer to the Secretary of State for the Home Department as the respondent and to Mr Furtado as the appellant, reflecting their positions before the First-tier Tribunal.
3. The respondent accepts that the appellant has obtained permanent residence in the UK under the provisions of the EEA Regulations. The parties were in agreement as to the outstanding issues to be resolved:
a. Is the appellant entitled to the “imperative” level of protection from deportation provided under Regulation 27(4)(a) of the EEA Regulations?
b. If yes, are those “imperative” grounds made out by the respondent and, if yes, is the decision proportionate?
c. If the appellant is not entitled to the “imperative” level of protection, are there “serious” grounds justifying deportation made out and, if yes, is the decision proportionate?
Background
4. The appellant is a citizen of Portugal, born on 18 December 1996. His parents, at that time nationals of Angola, had come to the UK on 30 September 1996 and claimed asylum. The appellant was therefore born in the UK after his parents had been here for just under 3 months. At some point his parents separated.
5. The appellant’s mother was granted exceptional leave to remain until 8 November 2004 and the appellant was granted leave in line with her. At some point the appellant’s mother acquired Portuguese nationality and on 12 August 2002 she was issued with a Portuguese passport.
6. On 16 October 2013 the appellant was convicted of driving offences including driving without due care and attention and without insurance and failing to surrender to custody at the appointed time. His driving licence was endorsed and he was made the subject of a referral order.
7. On 7 August 2014 the appellant was convicted of possession of cannabis and was given a conditional discharge for 6 months.
8. On 4 November 2014 the appellant was convicted of possession of heroin, crack cocaine and cannabis and given a supervision requirement and an unpaid work requirement.
9. On 22 May 2015 the appellant was convicted of burglary with intent to steal, breach of a conditional discharge and failure to comply with the requirements of a community order. He was sentenced to 21 months imprisonment in a Young Offenders’ Institution (YOI). The burglary involved the appellant’s gang using a moped to break down the door of a luxury goods store and the theft of high value items.
10. On 26 June 2015 the appellant was convicted of taking a car without consent, failing to stop when required and driving whilst uninsured. He received fines and a sentence of 6 weeks in a YOI, to be served concurrently with the earlier period of imprisonment.
11. On 1 July 2015 the appellant was convicted of theft and sentenced to 9 months in a YOI.
12. The offences committed in 2015 led to the respondent taking deportation action against the appellant. On 9 February 2016 a decision to deport was made pursuant to the EEA Regulations. The appellant appealed against that decision. In a decision issued on 5 August 2016 First-tier Tribunal Judge Wolf allowed the appeal. The First-tier Tribunal found that the appellant was entitled to the highest “imperative” level of protection from deportation as he had been resident in the UK for 10 years and that the respondent had not shown that there were the requisite imperative grounds to justify deportation.
13. On 13 October 2017 the appellant was convicted of three counts of causing injury by dangerous driving, one count of aggravated vehicle taking, accident causing injury and one count of affray. The dangerous driving offence involved the appellant driving a stolen car ploughing into a queue of people. Two people were thrown over the bonnet. Another was trapped by the car and dragged along, eventually falling and being run over. The appellant ran from the scene amidst screaming from members of the public and the person trapped under the car who sustained life changing injuries. The sentencing judge noted the offence as being one of the most serious types of cases short of death that came before the courts. The affray consisted of the appellant, supported by other gang members, chasing a target someone into a shop, beating him up and hitting him with a bottle in view of members of the public. The appellant was sentenced to 48 months imprisonment in a YOI for these offences.
14. The conviction of 13 October 2017 led the respondent to take further deportation action. On 20 August 2019 the respondent made a second decision to deport the appellant under the EEA Regulations. The appellant appealed against that decision and that appeal is the basis of these proceedings.
15. The appellant remained in immigration detention after the end of his prison sentence. He was released from detention in December 2019.
16. The appellant’s second appeal against deportation was heard on 11 December 2019. In a decision issued on 7 January 2020, First-tier Tribunal Judge Rastogi allowed the appeal. The First-tier Tribunal found that the appellant was entitled to the highest, “imperative” level of protection against deportation as he had been resident in the UK continuously for 10 years prior to the date of the decision and that his imprisonment had not broken his integrative links. The First-tier Tribunal went on to conclude that the respondent had not shown that there were imperative grounds justifying deportation.
17. The respondent appealed against the decision of First-tier Tribunal Rastogi and permission to appeal was granted by the Upper Tribunal on 21 April 2020. In a decision issued on 4 December 2020, Upper Tribunal Judge Owens found an error of law in the First-tier Tribunal’s assessment of whether the appellant had retained integrative links. The First-tier Tribunal decision was set aside to be remade in the Upper Tribunal.
18. A hearing for the remaking of the appeal listed for 7 July 2021 was adjourned as the appellant did not attend. It became apparent that this was because he was on remand for further offences, having been arrested in June 2021.
19. On 22 September 2021 the appellant was convicted of driving whilst disqualified and uninsured and two counts of theft. The offences occurred on 10 June 2021 when the appellant and another offender stole mobile phones from two individuals whilst riding on an electric bike. The offence involved a weapon as a large kitchen knife was found near the abandoned bikes; see OASys dated 20 January 2022 at 2.1. The appellant was sentenced to two periods of 12 months imprisonment to be served concurrently and disqualified from driving for 12 months.
20. A further hearing was listed on 24 January 2022 for the remaking of the appeal. The appellant was produced from detention for the hearing and his mother and girlfriend also attended to give evidence. I heard oral submissions from Mr Tufan and Ms Ferguson.
Legal Framework
21. Regulation 23 (6)(b) of the EEA Regulations permits removal of an EEA national where “the Secretary of State has decided that the person’s removal is justified on grounds of public policy, public security or public health in accordance with regulation 27”
22. Regulation 27 of the EEA Regulations states:
(1) In this regulation, a “relevant decision” means an EEA decision taken on the grounds of public policy, public security or public health.
(2) A relevant decision may not be taken to serve economic ends.
(3) A relevant decision may not be taken in respect of a person with a right of permanent residence under regulation 15 except on serious grounds of public policy and public security.
(4) A relevant decision may not be taken except on imperative grounds of public security in respect of an EEA national who—
(a) has a right of permanent residence under regulation 15 and who has resided in the United Kingdom for a continuous period of at least ten years prior to the relevant decision;
…
(5) The public policy and public security requirements of the United Kingdom include restricting rights otherwise conferred by these Regulations in order to protect the fundamental interests of society, and where a relevant decision is taken on grounds of public policy or public security it must also 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 must represent a genuine, present and sufficiently serious threat affecting one of the fundamental interests of society, taking into account past conduct of the person and that the threat does not need to be imminent;
(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;
(f) the decision may be taken on preventative grounds, even in the absence of a previous criminal conviction, provided the grounds are specific to the person.
(6) Before taking a relevant decision on the grounds of public policy and public security in relation to a person (“P”) who is resident in the United Kingdom, the decision maker must take account of considerations such as the age, state of health, family and economic situation of P, P’s length of residence in the United Kingdom, P’s social and cultural integration into the United Kingdom and the extent of P’s links with P’s country of origin.
…
(8) A court or tribunal considering whether the requirements of this regulation are met must (in particular) have regard to the considerations contained in Schedule 1 (considerations of public policy, public security and the fundamental interests of society etc.).
23. Schedule 1 of the EEA Regulations states:
Considerations of public policy and public security
1. The EU Treaties do not impose a uniform scale of public policy or public security values: member States enjoy considerable discretion, acting within the parameters set by the EU Treaties, applied where relevant by the EEA agreement, to define their own standards of public policy and public security, for purposes tailored to their individual contexts, from time to time.
Application of paragraph 1 to the United Kingdom
2. An EEA national or the family member of an EEA national having extensive familial and societal links with persons of the same nationality or language does not amount to integration in the United Kingdom; a significant degree of wider cultural and societal integration must be present before a person may be regarded as integrated in the United Kingdom.
3. Where an EEA national or the family member of an EEA national has received a custodial sentence, or is a persistent offender, the longer the sentence, or the more numerous the convictions, the greater the likelihood that the individual’s continued presence in the United Kingdom represents a genuine, present and sufficiently serious threat affecting of the fundamental interests of society.
4. Little weight is to be attached to the integration of an EEA national or the family member of an EEA national within the United Kingdom if the alleged integrating links were formed at or around the same time as—
(a) the commission of a criminal offence;
(b) an act otherwise affecting the fundamental interests of society;
(c) the EEA national or family member of an EEA national was in custody.
5. The removal from the United Kingdom of an EEA national or the family member of an EEA national who is able to provide substantive evidence of not demonstrating a threat (for example, through demonstrating that the EEA national or the family member of an EEA national has successfully reformed or rehabilitated) is less likely to be proportionate.
...
Is the appellant entitled to the “imperative” level of protection from deportation provided under Regulation 27(4)(a) of the EEA Regulations?
24. It is accepted that the appellant was present in the UK continuously for 10 years prior to deportation decision dated 20 August 2019. It is also accepted that he has a permanent right of residence.
25. The appellant therefore maintains that he is entitled to the highest “imperative” level of protection from deportation, as provided for in Regulation 27 (4)(i) of the EEA Regulations as he has integrative links that have not been broken by his periods of imprisonment.
26. The respondent maintains that the appellant is only entitled to the medium, “serious” level of protection because his periods of imprisonment have broken his integrative links and he is no longer entitled to the “imperative” level of protection.
23. As of 20 August 2019, the date of the deportation decision, the appellant had spent periods in prison. He went into prison on 22 May 2015 as a result of the burglary conviction. He was released from custody on 5 February 2016. He returned to prison on 30 March 2017 after being arrested for the dangerous driving and related offences. He remained on remand until he was sentenced on 13 October 2017. He was then in prison until the deportation decision of 20 August 2019, his sentence having been extended by 118 days due to adjudications. He was still in prison as of the deportation decision of 20 August 2019. Between 22 May 2015 and 20 August 2019, therefore, a period of 52 months, Mr Furtado spent 34 months in prison. I must assess whether those periods of detention have broken the appellant’s integrative links established prior to the deportation decision.
24. The correct approach to an assessment of whether someone remains entitled to the “imperative” level of protection is set out in a line of case law including the conjoined cases of Franco Vomero v Secretary of State for the Home Department (Case C-424/16) and B v Land Baden-Wurttemberg (Case C-316/16). In B the Court of Justice of the European Union set out at [70]:
“As to whether periods of imprisonment may, by themselves and irrespective of periods of absence from the host Member State, also lead, where appropriate, to a severing of the link with that State and to the discontinuity of the period of residence in that State, the Court has held that although, in principle, such periods of imprisonment interrupt the continuity of the period of residence, for the purpose of Article 28(3)(a) of Directive 2004/38, it is nevertheless necessary — in order to determine whether those periods of imprisonment have broken the integrative links previously forged with the host Member State with the result that the person concerned is no longer entitled to the enhanced protection provided for in that provision — to carry out an overall assessment of the situation of that person at the precise time when the question of expulsion arises. In the context of that overall assessment, periods of imprisonment must be taken into consideration together with all the relevant factors in each individual case, including, as the case may be, the circumstance that the person concerned resided in the host Member State for the 10 years preceding his imprisonment … ”
and at [72] to [74]:
"72 As part of the overall assessment, mentioned in paragraph 70 above, which, in this case, is for the referring court to carry out, it is necessary to take into account, as regards the integrative links forged by B with the host Member State during the period of residence before his detention, the fact that, the more those integrative links with that State are solid —including from a social, cultural and family perspective, to the point where, for example, the person concerned is genuinely rooted in the society of that State, as found by the referring court in the main proceedings —the lower the probability that a period of detention could have resulted in those links being broken and, consequently, a discontinuity of the 10-year period of residence referred to in Article 28(3)(a) of Directive 2004/38.
73 Other relevant factors in that overall assessment may include, as observed by the Advocate General in points 123 to 125 of his Opinion, first, the nature of the offence that resulted in the period of imprisonment in question and the circumstances in which that offence was committed, and, secondly, all the relevant factors as regards the behaviour of the person concerned during the period of imprisonment.
74 While the nature of the offence and the circumstances in which it was committed shed light on the extent to which the person concerned has, as the case may be, become disconnected from the society of the host Member State, the attitude of the person concerned during his detention may, in turn, reinforce that disconnection or, conversely, help to maintain or restore links previously forged with the host Member State with a view to his future social reintegration in that State.”
25. The CJEU concluded at [83]:
“In the light of all the foregoing, the answer to the first three questions in Case C‑316/16 is that Article 28(3)(a) of Directive 2004/38 must be interpreted as meaning that in the case of a Union citizen who is serving a custodial sentence and against whom an expulsion decision is adopted, the condition of having resided in the host member state for the previous ten years laid down in that provision may be satisfied where an overall assessment of the person’s situation, taking into account all the relevant aspects, leads to the conclusion that, notwithstanding that detention, the integrative links between the person concerned and the host member state have not been broken. Those aspects include, inter alia, the strength of the integrative links forged with the host member state before the detention of the person concerned, the nature of the offence that resulted in the period of detention imposed, the circumstances in which that offence was committed and the conduct of the person concerned throughout the period of detention.”
26. B was considered in domestic case law in Secretary of State for the Home Department v Viscu [2019] EWCA Civ 1052. Flaux LJ summarised the principles established by the CJEU jurisprudence in relation to the impact of custodial sentences on integration at [44] and [45]:
“44. The CJEU jurisprudence to which I have referred establishes (i) that the degree of protection against expulsion to which a Union national resident in another member state is entitled under the Directive is dependent upon the degree of integration of that individual in the member state; (ii) that, in general, a custodial sentence is indicative of a rejection of societal values and thus of a severing of integrative links with the member state but (iii) that the extent to which there is such a severing of integrative links will depend upon an overall assessment of the individual’s situation at the time of the expulsion decision.
45. Although the jurisprudence refers most frequently to "imprisonment" rather than "custodial sentence" I am quite satisfied that the rationale for the principle that, in general, a custodial sentence is indicative of a rejection of societal values and a severing of integrative links so as to interrupt the required continuity of residence, is equally applicable to sentences of detention in a YOI as it is to imprisonment. This is because, on a proper analysis, it is not the sentence which indicates rejection of societal values but the offending which is sufficiently serious to warrant a custodial sentence whether of imprisonment or some other form of detention.”
29. In line with these principles, I must conduct an assessment of the appellant’s circumstances as of the date of the decision to deport, with particular reference to integrative links established prior to the decision, the nature and circumstances of his offending and his conduct in detention.
30. When making this assessment I also referred to the respondent’s guidance entitled “Public policy, public security or public health decisions” published on 17 November 2021. Page 29 of this guidance states (verbatim):
“Where the person has been in the UK since they were a young child, have undertaken their entire education in the UK and have not lived in another EEA country for more than 2 years, that may indicate that they have strong integrative links with the UK that have not been broken by the period of imprisonment, depending on all the facts of the case.”
31. The decision of Upper Tribunal Judge Owens preserved a significant number of findings from the decision of the First-tier Tribunal Rastogi; see paragraph 36 of the error of law decision. I have taken those findings into account when making my assessment now but only refer to them specifically in this decision when appropriate.
Integrative Links prior to detention
32. I accept that the appellant had established a degree of integration in the UK prior to the deportation decision of 20 August 2019. That must be so as he was born here and has lived here his entire life other than two short visits, at least one of them to Portugal.
33. I find that his integration prior to the deportation decision was very limited, however, and without depth or substance. There is little information about his early life. He left school at 16 when he was expelled, going on to attend a special unit. The OASys report dated 8 August 2019 identifies on page 18 that he was frequently in fights at school and that there were reports of him bullying female students. There was no evidence that he obtained any qualifications whilst in education. He has provided no evidence of ever having been in paid employment.
34. Thereafter, the evidence indicated that the dominant feature in his life was his association with gangs and criminality. Those matters are addressed in more detail below. They undermine the strength of the appellant’s integrative links to the UK where they show a strong rejection of societal values.
35. The appellant maintains that his integrative links are strengthened because he grew up with family members in the UK and has strong relationships with them. This claim is not supported by the evidence. I accept the settled finding that all his family ties are in the UK; paragraph 64 of Judge Rastogi’s decision. However, it is undisputed that he has not had contact with his father for many years. The OASys report dated 8 August 2019 referred to his mother abandoning him when he was young. There is no detail in either the appellant’s statements or those of his mother as to when they did last cohabit or describing the nature of their relationship. He was not living with his mother in 2015. She moved to Scotland in 2019. The 2019 OASys report records that the appellant stated that he did not want to have anything to do with his mother. Those matters undermine the statement of the appellant’s mother made for the hearing in December 2019 that she would miss face to face contact with the appellant. The materials did not show that the appellant had a close or significant relationship with his mother.
36. By the time that he committed the burglary in 2015 the appellant was no longer living in the family home in London there as an Anti-Social Behaviour Order (ASBO) prevented him from doing so. The OASys report from August 2019 identified the appellant’s brother and uncle who lived in the family home as known offenders and commented that the appellant had been exposed to criminal activities by them and all three had been involved in criminal activities together. The appellant was of no-fixed abode in the period leading up to the index offence in 2017, the OASys report from 2019 stating that he was “sofa-surfing.” This does not suggest that the appellant had family ties showing that he was integrated in the UK, rather the opposite. I accept the preserved finding from the decision of First-tier Tribunal Judge Rastogi that the applicant was supported financially by his mother and grandmother whilst out of prison but without more, I did not find that this indicated a strong emotional bond or unusual dependency. It would appear that by that time he could not get access to benefits because of a lack of documentation.
37. The appellant maintained that his relationship with Charlotte Sibley also showed that integration in the UK. Ms Sibley dated in her oral evidence that the relationship began in February 2017. That was only 1 month prior to his arrest in March 2017 for the dangerous driving offence. By the date of the deportation decision in August 2019, the relationship had only existed whilst the appellant was in prison, other than for 1 month. The OASys report dated August 2019 makes adverse statements on the relationship on page 21 (verbatim):
“Mr Furtado is in a relationship with Charlotte Sibley she is aware of his offending and history … she did not know about the arrest for rape and was visibly upset when I told her. According to the IGT worker she seems to enjoy the attention she gets from being partner of a high ranking gang member. And he picked her out when she was a virgin and from a good background. She lives with her parents in Hackney and siblings under 18 she is aware he is not permitted to have contact with under 18s … given the arrests for rape of young females concerns around potential Child Exploitation relationships should always be monitored and disclosure of history made to partners.”
The same report identified on page 47 that the appellant was a risk to Ms Sibley.
38. Although there was a relationship of some kind between the appellant and Ms Sibley, it was not straightforward. At the date of the decision it had been conducted whilst the appellant was in prison and professionals who were aware of it had significant concerns as to the nature of the relationship and potential risks it posed to Ms Sibley. It was my conclusion that the relationship with Ms Sibley was too compromised to show that the appellant had meaningful integrative links to the UK
39. In summary, I found the appellant’s integration prior to the deportation decision to be minimal notwithstanding his having been born here and lived here all his life.
Nature and Circumstances of Offending
40. The appellant criminal history showed repeated and escalating offending from 2013 until the decision to deport in August 2019. He committed numerous offences from the age of 16 onwards but I consider below only the two most serious offences, the burglary in 2015 and the dangerous driving offence in 2017.
41. On 22 May 2015 the appellant was sentenced to 21 months in a YOI for a high value burglary. He was part of gang which burgled the Lowe luxury goods shop in Mayfair, using a moped to ram the front doors. The appellant was the first to enter the property. The burglary was planned and 57 handbags were stolen with a value of £74,035. The decision of First-tier Tribunal Wolf from 2016 considered this offence. The 2016 First-tier Tribunal decision identified that a 2016 OASys report set out that the appellant posed a high risk of re-offending and a medium risk of harm to the public, children and prisoners. The First-tier Tribunal decision sets out in paragraph 8 that:
“The risk factors identified in the report included gang-related violence, traffic collisions, physical harm, emotional harm or distress and financial loss. The author of the report had assessed that local businesses and shops would be at risk of harm due to financial loss and that the appellant posed such a risk due to his gang involvement, the sale of class A drugs and that road users and pedestrians would be at risk if motorcycles were sued to effect a getaway when the appellant committed crime.”
42. The 2016 First-tier Tribunal decision goes on to identify in paragraph 9 that the risk of harm on release into the community would be “immediate” in the area of London where the appellant was a gang-member. The 2016 First-tier Tribunal decision concluded in paragraph 90:
“In summary the appellant had not addressed his offending behaviour, was a former drug user and potential gang member who was influenced by his criminal peers. The prospect of rehabilitation appeared bleak. His immaturity and unwillingness to address his offending behaviour whilst in custody are all too apparent. Whilst he expressed a willingness to Mr Dew at some stage in November 2015 to engage in victim awareness, he had shown little by way of remorse or appreciation of the impact of his behaviour on the community at large.”
43. Paragraph 90 of the First-tier Tribunal decision from 2016 goes on to identify a “glimmer of hope” as to the appellant being capable of reform. That was extinguished by the appellant’s further, even more serious offending when he was convicted of dangerous driving and affray in October 2017. That offending occurred even though he had been through deportation proceedings in 2016 and warned at the end of Judge Wolf’s decision of the consequences if he did offend again. It occurred in the face of the appellant’s claims before Judge Wolf to be remorseful and to have an intention not to reoffend. Those matters add to the seriousness of his criminal profile.
44. The 2017 offence concerned an incident in which the appellant was driving a stolen car and ploughed into a group of pedestrians, causing life-changing injuries to the victims. There was also an affray. He received a sentence of 48 months imprisonment. The sentencing judge described the dangerous driving offence as “terrible” and “one of the most serious that comes before the court without actually killing somebody”. He also set out:
“And I will tell you what the most dreadful aspect of this is, Mr Furtado. It is bad enough what you were doing, and you had been doing it really for most of that day, and maybe on nearly every day of your life. But you were driving around in stolen vehicles; you damaged vehicles; you challenged people who were on the road. You were out of control.
There was no police chase. What are they supposed to do, the rest of the community? How do you make them safe? So they tried to stop the vehicle in which you and your friends were in, and the dreadful thing is that you careered into that crowd of people, whose lives will change, you and your friends ran away as fast as you could on your good legs while you left those other people permanently injured. How dreadful is that? You say you will live with it forever. Common humanity. You had a man underneath the car. They were screaming at you to stop. Disguised. Running away. It is so cowardly.
The guilt you have is to make sure that you, in the future, I hope, can actually grow up into a worthwhile man. I am sure you can. But of course, that is no comfort to those who will never run away again, like you did away. They will never run for a bus. And so this pitiful bit of behaviour leaves them permanently scarred.”
45. The judge said this about the affray:
“Unfortunately for you we have also had disclosed exactly how you were behaving at that time – completely unrestrained, chasing other people, other members of the public. It could have been your mother, your sister in that shop when you beat him up and hit him with a bottle.
Who are you? Somebody who gives little thought to any sentence imposed by a court. Each time you come before a court I am sure each judge or magistrate has said, ‘hopefully you will not come before the courts again’. Not much chance I am afraid.”
46. An OASys report dated 8 August 2019 addressed this further offending. In that report the appellant was found to be at a medium risk of reoffending, at high risk of non-violent offending and medium risk of violent offending. The likelihood of harm to children, the public and known adults was high. The appellant was identified as being at MAPPA level 3, the highest level.
47. The 2019 OASys report also indicates in paragraph 2.12:
“he has been charged not convicted for gang rape of teenage girls – a 16 year old visited him in custody and passed him some cannabis – this indicates child sexual exploitation – whilst his convictions alone do not present as violent, Mr Furtado is considered violent and danger in the context of gang-related activity.”
Paragraph R6.2 set out further details of the two arrests for rape, the first concerning gang-rape of a 13 year old girl as part of a gang “line-up” and the second the gang-rape of an adult female where the appellant’s semen was found on her clothing. The OASys report states that the appellant should not be permitted to reside with children under 18 given his arrests for gang rape and concerns about child sexual exploitation.
48. The OASys report from August 2019 also identified that the appellant was a known gang member. Paragraph 2.14 identifies that “His association with serious group offending and drug supply indicate a raised risk of serious harm to others by way of gang-related violence.” The report comments on page 14 that “Mr Furtado is considered violent and dangerous in the context of gang related activity.” The appellant is stated on page 22 to be affiliated to two London gangs and that he reported spending:
“the majority of his time hanging around with offending peers around Marquess Estate/Essex Road who are thought to be selling drugs. This peer group is also linked to high-end smash & grabs, phone snatches, bike thefts and burglaries.”
49. The report states in paragraph 2.11 that the appellant would say that he was remorseful “however it is my assessment this is merely lip service - he continues to get into fights in custody and prison intelligence would suggest he is very much still involved in gang related activity.”
50. The 2019 OASys report identifies that the appellant committed offences for financial gain and that he had an “inability to consider legitimate alternatives to obtaining funds”. The report also states on page 29:
“Throughout his offending Mr Furtado has demonstrated poor thinking skills and an inability to recognise the situation he was in. he has made poor choices in his methods to solve problems and continued to deny his full responsibility regarding offending. His thinking and behaviour are clearly linked to his risk of harm and to his offending.”
The report also identified on page 30 that the appellant had “clear pro-criminal attitudes and his association with criminal associates encouraged criminal activity” and “little regard for laws and compliance.” His claims not to have a drug problem were not accepted; see page 24.
51. In his appeal in 2019, the appellant relied on a letter dated 14 October 2019 from Bernadette Moyley of the Islington Council Integrated Gangs Team. She stated that she had been working with the appellant for 2 years. The letter identifies that the appellant had agreed to work with an Anger Management Programme and that he had engaged “really well”, starting to identify the changes he needed to make concerning negative peers. Ms Moyley considered the appellant to have been “open and honest” and found him to have “been a pleasure to work with.” In the context of the appellant’s offending history, the escalation of his offences, the entrenched gang membership shown in the 2019 OASys report and the letter being provided whilst the appellant was still in detention when any progress or change had not been tested in the community at all I did not find that I could place weight on this letter.
52. It was suggested for the appellant that his criminal profile was less serious as most of his offences were committed whilst he was a minor. I did not find that submission could carry any weight where the two most serious offences occurred when he was an adult, the appellant being 20 years old by the time of the most serious offences in 2017.
53. My conclusion was that the nature and circumstances of the appellant’s offending as of the date of the deportation decision was very serious indeed. His offences were serious. They had escalated in seriousness. He was adult when the two most serious offences were committed. He was involved in gangs. He continued to offend despite having been subject to deportation proceedings previously and despite claims that he had wanted to reform. He was, as stated by the sentencing judge, out of control, with no regard for the criminal justice system.
Conduct During Detention
54. As of the date of the deportation decision in August 2019, the appellant’s conduct in detention was also very serious indeed. A letter dated 15 July 2019 from the Probation Service stated that during his period of imprisonment from 30 March 2017 and 20 August 2019 he had accrued 118 additional days due to adjudications. His behaviour in detention was stated to be “extremely poor” with so many adverse incidents that “it is not possible to go into them individually”. The incidents involved fighting and unauthorised items such as tobacco, mobile phones, New Psychoactive Substances and cannabis. The letter goes on to list five incidents from June 2019 which included swearing at staff, displays of anger and confrontational behaviour. In addition, the OASys report from 2019 refers on page 47 to the appellant attacking a co-defendant in the cells whilst at court because he had provided evidence against the appellant.
Conclusion on the “imperative” level of protection
55. I have found the appellant’s integrative links prior to his detention in 2017 to be very limited. The nature and circumstances of his offending, his risk of reoffending and affiliation with gangs and his conduct during detention as of August 2019 were very serious. Even taking into account that he has only ever lived in the UK and has very limited links to Portugal and the respondent’s position that such circumstances “may” act to preserve integrative links, my conclusion is that any integrative links of this appellant were broken by the periods of imprisonment in 2015 and 2017.
56. The appellant is therefore not entitled to the higher, “imperative” level of protection. He is only entitled to the “serious” level of protection from deportation.
Has the respondent shown that there are “serious” grounds justifying deportation?
29. Regulation 27(5)(c) requires that the decision to expel the appellant must be based exclusively on his personal conduct and such conduct must represent a genuine, present and sufficiently serious threat affecting one of the fundamental interests of society. The onus is placed on the respondent to establish such serious threat and the standard to be applied is the civil standard; Arranz (EEA Regulations– deportation – test) [2017] UKUT 00294 (IAC) at [81]. I must be satisfied that the appellant is a “serious” and present threat to the interests of society, and so his past record is not in itself sufficient; B (Netherlands) v. Secretary of State for the Home Department [2008] EWCA Civ 806. When considering whether serious grounds exist, focus is to be placed upon the propensity to re-offend rather than issues of deterrence or public revulsion, which have no part to play in assessment: Secretary of State for the Home Department v. Straszewski [2015] EWCA Civ 1245.
30. The appellant relied on Straszewski as showing that his offences and his profile were not sufficiently serious. Mr Straszewski received sentences of 42 months and 15 months imprisonment but was not found to represent a sufficiently serious threat. As above, however, it is the future and the risk of re-offending that is at the heart of an assessment of whether there is a genuine and present threat to public policy and security. It is not helpful to simply compare lengths of sentence and nothing in statute or case law suggests that this is a proper approach. It is hard to see how such an approach assisted the appellant, in any event, where his sentences were obviously more serious than those of Mr Straszewski.
31. The appellant also maintained that his conduct did not show that he was a “serious” threat to public policy and public security. Most of his offending was non-violent and most of his offences were committed as a minor. I have already addressed that submission above. It is further undermined as he committed further offences as an adult in 2021 and was sentenced for a further 12 months imprisonment.
32. The appellant unarguably has a very serious criminal record. It is significant that he continued to reoffend even after First-tier Tribunal Woolf warned him at the end of the 2016 decision of the possible consequences of reoffending. Not only did he reoffend within a year of leaving prison in 2016 but the offences in 2017 were very serious and attracted a sentence of 4 years imprisonment. The remarks of the sentencing judge from 2017 are stark. He went on to offend again in 2021. Further, by the time of his offences in 2021, the appellant was already in the midst of these further deportation proceedings. Following on from the view of the sentencing judge from 2017, he does not appear to have respect for any form of law and, as in the 2019 OASys report, his expressions of remorse and wish to rehabilitate are mere lip-service. I found that this pattern of conduct was a very strong indicator that he is a serious, genuine and present threat to public policy. The appellant told the Probation Service in 2022 that he wished to go to Scotland to where his mother lives for a fresh start and repeated that at the hearing. Given the failure to act on any of his previous statements regarding avoiding further offending, in fact, doing the opposite, I did not find that I could place any weight on that evidence.
33. The professional risk assessments, over a period of 6 years, clearly viewed him as a serious threat to public policy. I have set out the salient parts of the two earlier OASys reports from 2016 and 2019 above. There was a further OASys report dated 20 January 2022. Much of it is was covered in the earlier reports. In the 2022 OASys report, the appellant was found to pose a very high risk of non-violent reoffending and a medium probability of violent offending. His overall risk of reoffending was high. He was still a high risk to children, the public and known adults whilst in the community.
34. Paragraph 2.7 confirms that the appellant is a known gang member. Paragraph 2.12 refers to the appellant being “considered violent and dangerous in the context of gang related activity.” Paragraph 2.14 states “His association with serious group offending and drug supply indicate a raised risk of serious harm to others by way of gang-related violence.” The 2021 offences were committed with another known gang member; see paragraph 2.7. I accept that the 2021 offences did not show an escalation in the seriousness of the appellant’s offending. They were still serious offences. His MAPPA level 2 status is lower than the level 3 identified in 2019 but is still high, reflecting his status as at a high risk of offending.
35. The OASys report from 2022 states in paragraph 7.5 that the appellant’s conduct in prison in relation to the 2021 offences “had significantly improved” and “was nowhere near as bad as his first stint.” That must be viewed against a further statement in the same section that there were still concerns about his behaviour in custody as mobile phones and drugs were found in his cell on multiple occasions and he had been involved in fights with other prisoners. Page 50 of the report sets out specific incidents from the most recent period of detention which included putting a choke hold on another prisoner, punching him in the face repeatedly, stealing electronic items from him and assaulting another prisoner who asked him to return the items. He attempted to assault another prisoner using crutches which were confiscated as he appeared not to need them. Drugs were found on his person on in his room on a number of occasions and a mobile phone was found in his cell. The appellant’s denials of all these incidents in his oral evidence was unedifying.
36. As indicated in the OASys report from 2022 on page 46, the appellant was still being supported by Ms Moyley of the Islington Integrated Gangs Unit during his most recent detention. He was being supported by Ms Moyley to lead a crime free life and also by a psychologist concerning bereavements arising from his involvement in gang culture. He was also being supported by the New Horizon Youth Centre.
37. The appellant provided a further letter dated 19 January 2022 from Ms Moyley. She set out that she had worked with him for over 7 years and confirmed his work with a psychologist for anger management. Ms Moyley then made identical statements to those in her letter from 2019 about the appellant engaging well with the course and commenting that he “had been a pleasure to work with” as well “open and honest” during his meetings. The appellant had reoffended twice during his period of involvement with the integrated gangs team and conspicuously failed to show any signs of rehabilitation. It is not possible to place weight on this letter as a result. It does nothing to reduce the serious level of threat that the appellant poses.
38. The appellant also relied on a letter dated 23 April 2021 from Ms Viviane DaSilva of the New Horizon Youth Centre. The letter stated that the appellant had been involved with the service since 2015. The letter indicated that during the appellant’s period of imprisonment from 2017 to 2019/20 he had shown “a change in his perspective and determination” and “demonstrated that he is willing and eager to change his life around”. Again, the letter fails to address the facts of the appellants repeated, escalating offending and is further undermined by the fact that very shortly after it was written, the appellant committed the thefts in June 2021 with another gang member.
39. The evidence shows that the appellant has a very serious offending history. Nothing shows that he has made any serious attempts to reform and his claims to be remorseful and to want to reform carry no weight. The OASYs reports consistently show him to pose a risk of reoffending, currently stated to be high overall. His wider conduct of involvement in gangs and violent behaviour in prison confirms that he is a risk to the fundamental interests of society. He has reoffended even though he knew deportation was a possibility and even after two sets of deportation proceedings had been brought against him. My conclusion is that the appellant is a serious, genuine and present threat to society and the requirements of Regulation 27(3) are met.
Is the decision proportionate?
40. The assessment above of the appellant’s integrative links focusses on the 10 year period prior to the decision to deport. The proportionality assessment I must conduct must be as of the date of the hearing, nearly 3 years later; MG (Prison: Article 28(3)(a) of Citizens Directive: Portugal) [2014] UKUT 392 (IAC).
41. It was not my view that anything that had occurred in the intervening 3 years made any material difference as to the strength of the appellant’s links to the UK. They remain weak, notwithstanding his having been born here and living all of his life here. His position is reduced still further by the further reoffending in 2021. The fact that he reoffended even whilst facing further deportation proceedings adds further weight against him. The bare facts of his criminal history as well as the professional risk assessments show that he still poses a high risk of reoffending. The OASys report from January 2022 showed a higher overall risk of reoffending. His behaviour in prison during the 2021 sentence remained serious even if not at the elevated level shown during his 2017-2019 detention. I accept that he is or is about to be referred for MAPPA level 2 status where he was assessed as MAPPA level 3 in the 2019 OASys report but this is still a serious status, allocated to an offender who presents a high risk of reoffending. I have set out above the other very concerning aspects of the appellants behaviour concerning his gang membership, arrests for rape, the concern of forensic professional as to his exploitation of and risk to children. His statements and those of his relatives and professionals working with him that he was remorseful and intended to reform carry no weight given that he has repeatedly offended in the face of them.
42. The witness statements of the appellant, his mother and Ms Sibley provided for the hearing in January 2022 were identical to those provided in 2019 and did not take my earlier assessment of his family ties in the UK any further. A further period in prison in 2021 separated him again from those family members with whom he still has any contact. The appellant indicated that he had never visited his mother in Scotland but stated that he spoke frequently with her on the phone. Taking that evidence at its highest, against the evidence on that relationship as a whole, I did not find that this was capable of adding significant weight to the appellant’s side of the balance. The relationship was not shown to be significant he could continue to speak to her on the phone from Portugal. I accept that the appellant and Ms Sibley retain a relationship but mere duration does not address the concerns set out above. I did not find that the relationship with Ms Sibley added weight to the appellant’s side of the balance.
43. The fact of the appellant having been born in the UK and having lived here all his life is a very strong factor weighing on his side of the proportionality assessment, however. There is a settled finding that he has no family or other significant ties in Portugal although he may well have extended family members there. He has never lived there. It is also settled, however, that he grew up in a Portuguese speaking household where Portuguese was spoken daily by near relatives albeit he did not study Portuguese in an academic setting and is barely, if at all, able to write in Portuguese.
44. I did not find that the rehabilitation was a material factor. The appellant has not shown that he has a genuine intention to rehabilitate, quite the opposite. The presence of family in the UK has failed to promote his rehabilitation. His mother lives in Glasgow. He is excluded from the area in which his grandmother lives. Professional support for over 7 years has not had a discernible impact on his ability to rehabilitate. There are no reasonable prospects for rehabilitation capable of showing that that it might be disproportionate for the appellant to go to Portugal; Essa (EEA: rehabilitation/integration) [2013] UKUT 00316 (IAC) applied.
45. Only very serious factors weighting on the respondent’s side of the balance could be capable of outweighing the fact that the appellant was born in the UK and has lived here all his life and has very limited links with Portugal, having visited twice at most. It is my conclusion, however, that the appellant’s criminal profile, his inability to refrain from serious offending even in the face of two sets of deportation proceedings, his conduct in detention and his wider criminal profile amount to such very serious factors. I find that it is proportionate for Mr Furtado to be deported to Portugal.
Decision
46. The appeal is remade as dismissed under the Immigration (European Economic Area) Regulations 2016

Signed: S Pitt Date: 27 April 2022
Upper Tribunal Judge Pitt