Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: DA/00454/2015

THE IMMIGRATION ACTS

Heard at City Centre Tower, Birmingham
Decision & Reasons Promulgated
On 4th July 2016
On 4th August 2016

Before

DEPUTY upper tribunal JUDGE RENTON

Between

ANIS MOHAMMED ISMAIL ADEN
(ANONYMITY DIRECTION NOT MADE)
Appellant

and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:

For the Appellant: Mr H Sarwar, Counsel instructed by SLK Immigration Solicitors
For the Respondent: Mrs Aboni, Home Office Presenting Officer

DECISION AND REASONS

Introduction
1. The Appellant is a male citizen of Sweden born on 17th April 1991. He came to the UK with his family in April 2004. In May 2014 he was arrested and found to be in possession of controlled drugs. On 6th November 2014 he pleaded guilty to two counts of possessing class A controlled drugs, namely cocaine and heroin, with intent to supply, and as a consequence on 14th December 2014 he was sentenced to three years' imprisonment. On 17th September 2015 the Respondent decided to deport the Appellant for the reasons given in a Notice of Decision of that date. The Appellant appealed, and his appeal was heard by a panel chaired by First-tier Tribunal Judge Grimmett (the Panel) sitting at Birmingham on 26th February 2016. The Panel decided to dismiss the appeal for the reasons given in its Decision dated 2nd March 2016. The Appellant sought leave to appeal that decision, and on 30th March 2016 such permission was granted.
Error of Law
2. I must first decide if the decision of the Panel contained an error on a point of law so that it should be set aside.
3. The decision to deport the Appellant was made under the provision of Regulations 19(3)(b) and 21 of the Immigration (European Economic Area) Regulations 2006. The Panel decided that the Appellant had not been living in the UK for a continuous period of ten years for the purposes of Regulation 21(3) and (4). Leave to appeal was not granted in respect of that decision. The Panel also decided to dismiss the appeal because it found that there were serious grounds of public policy or public security because the Appellant represented a genuine, present and sufficiently serious threat affecting one of the fundamental interests of society, and that it was proportionate to deport him.
4. At the hearing, Mr Sarwar argued that the Panel had erred in law in coming to that conclusion. He referred to the grounds of application and submitted that the Panel had erred by failing to take into account material evidence when assessing whether the Appellant represented a genuine, present and sufficiently serious threat. The Panel had not dealt with a letter from Wayne Powell, a probation officer, dated 25th November 2015 stating that the Appellant had been assessed to be of a low risk of re-offending. This was material as the Panel had only dealt with the earlier pre-sentence report giving a similar opinion. As the Panel had not accepted the opinion of the pre-sentence report, it was material that the subsequent letter of Wayne Powell confirmed the view given in the report.
5. Further, the Panel had erred in its assessment of a genuine threat. The Panel had failed to give sufficient weight to the evidence that the Appellant was of a low risk of future offending. The Panel had only taken into account the evidence of a lack of remorse by the Appellant, and the nature of the original offences. The Panel had failed to give sufficient reasons for not accepting the assessment of the propensity to re-offend given by the Probation Service.
6. Finally, Mr Sarwar argued that the Panel had further erred in law by failing to take into account material factors when assessing proportionality. In particular, they had failed to take into account all of the factors listed in Regulation 21(6), and the prospect of rehabilitation.
7. In response, Mrs Aboni referred to the Rule 24 response and argued that there had been no such errors of law. The grounds amounted to no more than a disagreement with the decision of the Panel. It was true that the Panel had not specifically dealt with the letter of Wayne Powell, but the Panel had noted the evidence of a low risk of re-offending and had given sufficient reasons that nonetheless the Appellant represented a genuine, present and sufficiently serious threat. The Panel had come to a decision open to it on the evidence in this respect. The letter of Wayne Powell added little to the comments made in the pre-sentence report dealt with by the Panel. The failure to deal with the letter was not material as that letter had been written for the purpose of a bail hearing and the Panel had been correct to concentrate its attention on the pre-sentence report which had been the report relied upon by the sentencing Judge.
8. Mrs Aboni went on to submit that the Panel had properly considered all the relevant evidence including the details of the Appellant's involvement in the offences and the comments of the sentencing Judge. The Panel had not erred by attaching weight to the Appellant's lack of remorse and had been right to conclude that there was little prospect of rehabilitation as the Appellant had not accepted his guilt.
9. Finally, Mrs Aboni submitted that although the Panel's assessment of proportionality was brief, all the relevant circumstances were considered, in particular his personal circumstances and his ties to Sweden.
10. I find no error of law in the decision of the Panel which I therefore do not set aside. I agree with the submissions of Mrs Aboni that the Panel came to a decision which was open to it on the evidence before it. The Panel considered all relevant circumstances and gave sufficient reasons for its conclusions.
11. As regards the letter of Wayne Powell, it is true that the Panel did not refer to it specifically in the Decision. However from what the Panel wrote at paragraph 21 of its Decision it is clear that the Panel was aware of the view of the Probation Service that the Appellant was at a low risk of re-offending, and then the Panel went on in subsequent paragraphs to explain its decision that the Appellant still did not accept responsibility for the crimes he had committed, and that he did not understand the possible catastrophic effects of his criminality. It was therefore open to the Panel to find that the Appellant continued to present a genuine, present and sufficiently serious threat. The letter of Wayne Powell although describing the Appellant as being of a low risk of re-offending does not say anything relevant concerning the Appellant's lack of remorse nor his lack of acceptance of his guilt and lack of understanding of the possible consequences for society of the type of offences he had committed.
12. Finally, I am satisfied that the Panel carried out the balancing exercise necessary for any assessment of proportionality. At paragraph 31 of the Decision the Panel referred to the weight to be attached to the public interest owing to the serious nature of the Appellant's offending, and took into account the Appellant's personal circumstances including those referred to at paragraph 19 of the Decision. In my judgment the Panel took into account all the relevant circumstances required by Regulation 21(6).

Decision

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

I do not set aside that decision.

The appeal to the Upper Tribunal is dismissed.

Anonymity

The First-tier Tribunal did not make an order for anonymity. I was not asked to do so, and indeed find no reason to do so.

Signed Date

Deputy Upper Tribunal Judge Renton