Tribunal decisions

The decision

IAC-fH-WYL-V1

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: DA/00495/2015

THE IMMIGRATION ACTS

Heard at Field House
Decision & Reasons Promulgated
On 16 November 2016
On 23 November 2016

Before

LORD BANNATYNE
(SITTING AS A JUDGE OF THE UPPER TRIBUNAL)
UPPER TRIBUNAL JUDGE FREEMAN

Between

Secretary of State for the Home Department
Appellant
and

AGNE KHAN
(anonymity direction not made)
Respondent

Representation:
For the Appellant: Mr Jarvis, Home Office Presenting Officer
For the Respondent: Ms C H Bexson, Counsel

DECISION AND REASONS

1. For the sake of continuity we will refer to the parties as they were before the First-tier Tribunal although technically the Secretary of State is the appellant in the appeal to the Upper Tribunal.
Background
2. The appellant is a citizen of Lithuania, a member of the European Economic Area and was born on 30 January 1985.
3. On 5 March 2015 she was served with a notice that she was liable to deportation in accordance with the Immigration (European Economic Area) Regulations 2006. Thereafter a deportation order was made on 22 July 2015.
4. She appealed the above decision to the First-tier Tribunal and in a decision promulgated on 12 May 2016 the appeal was allowed.
5. The respondent sought permission to appeal against the above decision to this Tribunal and permission was granted on 20 May 2016 by the First-tier Tribunal.
The Relevant Law
6. Under Regulation 19(3), subject to certain limited exceptions, which do not apply here, it was accepted that the appellant may only be removed if:
'(b) 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 21.'
7. In the making of the decision in terms of Regulation 19(3) the decision-maker must have due regard to the factors listed in Regulation 21(5) and (6) and these provision are in the following terms:
"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."
"21(6) Before taking a relevant decision on the grounds of public policy or public security in relation to a person 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 the person, the person's length of residence in the United Kingdom, the person's social and cultural integration into the United Kingdom and the extent of the person's links with his country of origin."
Submissions on Behalf of the Secretary of State
8. Mr Jarvis at the outset of his submissions advised that he only intended to argue one of the grounds of appeal which was in these terms:
"It is further submitted that the FTTJ asserts in his conclusion at paragraph 22 that the appellant has not committed a criminal offence either before or after the index offence. He has failed to consider the fact that the appellant deliberately sought to evade capture for a number of years by returning to her native Lithuania. Even at the point she allegedly re-entered the UK in 2012 undetected, she continued to demonstrate a lack of respect for the laws of the United Kingdom and was only caught having left the UK returning to Lithuania as she attempted to enter the UK again. This demonstrates both a lack of compliance and additionally a failure to accept responsibility for her offending."
9. In putting forward this ground of appeal, Mr Jarvis conceded that the determination of the First-tier Tribunal was a careful one; that in reaching its decision the First-tier Tribunal had had regard to numerous sources of evidence and factors; and that if the decision at paragraph 25 of the First-tier Tribunal's determination was well-made the appeal must fail.
Reply on Behalf of the Appellant
10. Counsel's reply was a short one. The First-tier Tribunal was aware of the facts relied upon by the respondent in the ground of appeal founded upon. At paragraphs 14 and 15 of the determination these various circumstances were set out. The First-tier Tribunal would accordingly have had these factors in mind when considering the core question before it. There was accordingly no material error of law.
Discussion
11. The First-tier Tribunal in coming to its decision begins by directing itself to the correct question, namely: did the personal conduct of the appellant represent a genuine, present and sufficiently serious threat affecting one of the fundamental interests of society. Thereafter, in what we agree, is a careful consideration of that issue the First-tier Tribunal has regard to a large number of relevant factors. Among the factors which are considered by it is the judge's sentencing remarks with respect to the index offence (see: paragraph 20). The judge in his sentencing remarks at page 6 makes full reference to the various points relied on by the respondent. Accordingly the First-tier Tribunal by having regard to the judge's sentencing remarks has had regard to these points. In addition as was pointed out to us by Counsel for the appellant the First-tier Tribunal refers specifically to these points at paragraphs 14 and 15 in a section of the determination headed "Issues for me to determine".
12. Against the above background we are persuaded that the First-tier Tribunal has had proper regard to the points relied on by the respondent in reaching its decision on the core issue. There is thus no material error of law.
13. Even, had we been persuaded, that the First-tier Tribunal had not had full regard to the points relied upon by the respondent in the ground of appeal we would nevertheless have held that there was no material error of law. When regard is had to the whole circumstances relied upon by the First-tier Tribunal in reaching its decision on the core issue we are persuaded that the points relied upon by the respondent were of no materiality. We believe that a failure to consider fully the factors relied upon by the respondent would not have undermined the conclusion reached at paragraph 25 in light of the careful consideration of a large number of factors carried out by the First-tier Tribunal. Even without full consideration of the factors relied upon by the respondent the decision reached by the First-tier Tribunal was one which it was entitled to arrive at. For these further reasons we hold that there was no material error of law.
Decision
14. For the foregoing reasons we refuse the appeal.
15. We make no anonymity direction.

Signed Date

Lord Bannatyne
Sitting as a Judge of the Upper Tribunal