Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: DA/00547/2015

THE IMMIGRATION ACTS

Heard at: Field House
Decision and Reasons Promulgated
On: 22 December 2016
On: 04 January 2017

Before

UPPER TRIBUNAL JUDGE KEBEDE

Between

nasrudin diiriye
Appellant
and

SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: Ms J Bond, instructed by Irving & Co Solicitors
For the Respondent: Mr T Wilding, Senior Home Office Presenting Officer

DECISION AND REASONS

1. The appellant appeals, with permission, against the decision of the First-tier Tribunal dismissing his appeal against the decision to deport him from the United Kingdom pursuant to Regulation 19(3)(b) and Regulation 21 of the Immigration (European Economic Area) Regulations 2006 ("the EEA Regulations").

2. The appellant is a citizen of Sweden, born on 19 August 1993 in Sweden, of Somali origin (his mother was a Somali national who acquired Swedish citizenship after being recognised as a refugee in Sweden). He claims to have first entered the United Kingdom at the age of 5 years in 1999 with his mother and siblings and to have resided here since that time with his mother, and latterly with his sister. He completed primary and secondary education and obtained GCSEs, further to which he completed a BTEC National Diploma in Sport and started a Foundation Degree in Sports Science at university, which he did not complete due to his criminal convictions. From April 2010 he accumulated several convictions and on 6 July 2012 was convicted of causing grievous bodily harm and sentenced to three years at a Young Offenders Institute.

3. As a result of that conviction, the appellant was served, on 23 April 2013, with a notice of decision to make a deportation order. He appealed against that decision and his appeal was heard in the First-tier Tribunal on 4 November 2013 and allowed in a decision promulgated on 24 December 2013. The respondent sought unsuccessfully to challenge that decision in the Upper Tribunal after being granted permission to do so. Deportation action was accordingly not pursued.

4. However on 8 May 2015 the appellant was convicted of a further offence, possession of a weapon in a public place and causing actual bodily harm. He was sentenced to 21 months' imprisonment. On 18 June 2015 the appellant was notified of his liability to deportation and was invited to complete a questionnaire, which he did together with representations made on 14 July 2015.

5. On 3 November 2015 the respondent made a decision to deport the appellant under the EEA Regulations. In making her decision, and in her further reasons letter of 6 November 2015, the respondent considered that the appellant posed a serious risk of harm to the public and referred to his five convictions between 7 April 2010 and 8 May 2015. He had been assessed in a previous NOMS assessment in July 2012 as posing a medium risk of re-offending and had since re-offended. The respondent accepted that the appellant had been continually resident in the UK for ten years and that he had acquired a permanent right of residence and noted the findings of the previous Tribunal. However, when applying the "integration test" in Tsakouridis (European citizenship) [2010] EUECJ C-145/09, it was not accepted that he qualified for enhanced protection on imperative grounds of public security under regulation 21(4). It was considered that he would be able to establish himself in Sweden, where he had lived until the age of 5, noting that there was a large Somali diaspora in Sweden and that he had distant relatives there. It was considered that he had failed to demonstrate an ongoing commitment to rehabilitation or integration into the community of the UK. The respondent considered that the appellant's deportation was justified on serious grounds of public policy or public security and, furthermore, that his deportation would not breach his Article 8 human rights.

6. The appellant appealed against that decision and his appeal was heard on 15 June 2016 by First-tier Tribunal Judge Scott. Judge Scott noted that, whilst the Upper Tribunal had found, following a grant of permission to the respondent to challenge the decision of the First-tier Tribunal in the appellant's previous appeal, that the First-tier Tribunal had erred by finding that the appellant qualified for the enhanced protection on imperative grounds, the Upper Tribunal had found that the error was immaterial owing to the findings of substantial prospects, at that time, of the appellant's rehabilitation. The judge heard oral evidence from the appellant, his mother, his two sisters and his girlfriend and considered the documentary evidence produced by both parties, including evidence from the appellant of his work and volunteering.

7. At [43] of his decision the judge recorded that both representatives were agreed that the appellant had acquired a permanent right of residence under regulation 15 of the EEA Regulations; that he had not resided in the United Kingdom continuously for a period of at least ten years prior to the decision to deport him, taking into account his periods of imprisonment; and that the decision to remove him could not be taken except "on serious grounds of public policy or security" under regulation 21(3) rather than "imperative grounds of public security" under regulation 21(4). The respondent's representative was also recorded as having accepted that the imperative grounds could not be made out in any event.

8. Following that concession, the judge proceeded to determine the appeal on a consideration of whether there were serious grounds of public policy or public security for deporting the appellant. The judge concluded that the appellant's personal conduct met the test of representing "a genuine, present and sufficiently serious threat affecting one of the fundamental interests of society" in regulation 21(6). He concluded further that the respondent's decision to deport the appellant to Sweden was proportionate, in terms of regulation 21(5) and (6). He was not satisfied that there was more than a possibility of rehabilitation in the UK and considered that his prospects of rehabilitation in Sweden were reasonable, in particular as he would be removed from the bad company and influences which he blamed for his past offending. The judge concluded that the decision to deport the appellant was proportionate and he dismissed the appeal under the EEA Regulations, in a decision promulgated on 6 September 2016.

9. The appellant then sought permission to appeal to the Upper Tribunal on the grounds that the First-tier Tribunal had not properly engaged with the correct test as to whether there were sufficient grounds to justify the appellant's deportation from the UK. It was submitted in the grounds that, as a result of that, and whilst the appellant was not entitled to imperative grounds protection as of right, he was still entitled to a very high degree of protection likely to be equivalent to imperative grounds because of the extent of his integration in the UK, a matter with which the Tribunal had failed to engage. The grounds also referred to the fact that the appellant had been re-classified, in a letter from the probation service which was attached, as a medium risk of serious harm to the public.

10. Permission to appeal was initially refused in the First-tier Tribunal, but was subsequently granted on 16 November 2016 by Upper Tribunal Judge Smith, on the following grounds:

"The principal ground on which permission is sought relates to the issue whether the respondent needs to show that there are imperative grounds or only serious grounds to justify the appellant's deportation. On my reading of [43] of the decision, that is not a concession by the appellant that he could not show himself to be entitled to the benefit of more than just serious grounds. It is a recognition that he could not show that he has resided continuously for a period of ten years prior to the decision to deport when his periods of imprisonment are removed from the equation. A concession that only serious grounds apply is inconsistent with the document entitled "Grounds" which is with the application for permission and is also included in the appeal bundle. The decision made by the previous Tribunal allowing the appeal pre-dates the judgment in MG. Although, according to the decision ([8]) the finding that imperative grounds apply here was found to be in error, it is arguable that it remains necessary in a case such as this and in accordance with MG to consider the degree of integration as a whole.

There is reference in the grounds to a reassessment of the risk which the appellant poses. The letter from the Probation Service was not attached to the application and I cannot therefore consider the relevance of that. It is open to the appellant to make an application to rely on this as further evidence in accordance with the Tribunal Rules."

11. The appeal was then listed for an error of law hearing and came before me.

Appeal hearing and submissions

12. Ms Bond relied on the judgment of the Supreme Court in Secretary of State for the Home Department v Franco Vomero (Italy) [2016] UKSC 49, which post-dated the appeal before the First-tier Tribunal. She submitted that the concession made on behalf of the appellant in the First-tier Tribunal was based on the Court of Appeal decision in Secretary of State for the Home Department v FV (Italy) [2012] EWCA Civ 1199, whereas matters had since moved on, with the decision of the Supreme Court and the referral made by the Supreme Court to the Court of Justice (CJEU). It seemed that there was now almost a sliding scale of consideration of the level of protection depending on length of residence in the host state and the question of how to calculate residence and the acquisition of enhanced protection based on length of residence was still a matter of uncertainty and was therefore the subject of the referral to the CJEU. As such, Ms Bond invited me to decide the issue in the appellant's favour.

13. Mr Wilding relied on the case of Warsame v The Secretary of State for the Home Department [2016] EWCA Civ 16 and the extracts therein from MG which referred at [35] to [38] to "maybe" cases, namely cases where there had been ten years' continuous residence prior to a period of imprisonment, which was the case with this appellant. In those cases MG held that it was relevant to undertake an overall assessment to determine whether, at the time of the deportation decision, the integrative links previously forged in those ten years, had been broken. Mr Wilding submitted that Judge Scott had in effect conducted such an "overall assessment" in his findings, which covered all the relevant considerations which the Supreme Court had in mind, and crucially had considered integration and rehabilitation. There was therefore nothing in the Supreme Court's decision in Vomero which would assist the appellant and Judge Scott was entitled to conclude as he did.

14. In response, Ms Bond submitted that the concession made by the appellant's representative before the First-tier Tribunal was no longer a good concession in light of the Supreme Court's reference to the CJEU. The appellant was entitled to enhanced protection as a matter of law. Judge Scott's overall assessment was made in light of the concession that there was no automatic entitlement to enhanced protection, but the CJEU may well decide that enhanced protection goes simply with length of residence. Ms Bond submitted that she did not agree that enhanced protection was based on integration, but that it was length of residence that was relevant. In any event, she did not accept that two short periods of imprisonment would break the appellant's integrative links and furthermore, there was no basis, on the appellant's personal conduct, for a conclusion that there were serious grounds justifying deportation.

Consideration and findings.

15. In granting permission, Upper Tribunal Judge Smith said that she did not read [43] as a concession by the appellant that he could not show himself to be entitled to the benefit of more than just serious grounds, but I cannot read it any other way, particularly when reading the last part of the relevant sentence: "and that the decision to remove him could not be taken except "on serious grounds of public policy or security" under regulation 21(3) rather than "imperative grounds of public security" under regulation 21(4)". It is absolutely plain that the appeal proceeded on the basis that the level of protection to be considered was the "serious grounds" in regulation 21(3) and specifically not "imperative grounds" under regulation 21(4). I do not consider that the "grounds" referred to by Judge Smith, which were the grounds before the First-tier Tribunal, undermine the concession in any way and I note that the grounds seeking permission to the Upper Tribunal specifically state that "whilst the appellant was not entitled to imperative grounds protection as of right". Indeed Ms Bond did not seek to suggest that there was no concession. Her submission was that the concession should now be treated as withdrawn in light of the Supreme Court reference to the CJEU. It is also relevant to note that, whilst Judge Smith, in granting permission, referred to the fact that the decision made by the previous Tribunal allowing the appeal pre-dated the judgment in MG, the subsequent appeal before the Upper Tribunal did not and indeed the Upper Tribunal, in making its decision quoted extensively from that case. I therefore find that the appellant is not assisted by the terms of the grant of permission.

16. With regard to the submissions made by Ms Bond, which relied for the most part upon the uncertainty of the basis for determining an entitlement to enhanced protection in light of the Supreme Court's judgment and the reference to CJEU, I note that that did not form part of the grounds seeking permission, despite the fact that the judgment of the Supreme Court was delivered prior to the grounds being prepared and indeed prior to the promulgation of the judge's decision. That in itself calls into question the appellant's ability to rely on the grounds raised at the hearing.

17. However, that aside, it seems to me that Ms Bond's submissions were purely speculative and were based upon an assumption that the reference to the CJEU would result in a conclusion that enhanced protection was acquired as of right as a result of ten years' residence in the UK and that the question of integration was not a decisive one. That cannot be a proper reason to set aside the decision of the First-tier Tribunal. It is clear that Judge Scott made his decision on the basis of the law as it stood at that time and on the basis of a concession made as a result of the current jurisprudence. This is not a case where the law has since changed so as to require a different outcome from that reached by the First-tier Tribunal. The legal position remains as it was at the time Judge Scott made his decision. In the event that the reference to the CJEU elicits a response that would suggest an entitlement for the appellant to succeed on the basis of having acquired an enhanced protection, it may well be open to the appellant to make further representations at that point and to apply to revoke any deportation made against him. At the present time, however, that can be no more than speculation.

18. Ms Bond also submitted that there was almost a sliding scale in which to consider the level of protection and that the longer the residence in the host country, the greater should be the level of protection. That was the point in fact raised in the grounds seeking permission, where it was asserted that, whilst the appellant was not entitled to imperative grounds protection as of right, he was still entitled to a very high degree of protection likely to be equivalent to imperative grounds protection because of the extent of his integration in the UK. My understanding of Ms Bond's submission was that that was a matter recognised in MG and that it may be reinforced by the CJEU. However there is no suggestion in any of the jurisprudence thus far, and it is pure speculation that the CJEU would so find, that there was anything other than the two distinct levels of protection, on the basis of five years' or ten years' residence and there was anything in between those two distinct stages. The weight to be given to lengthy residence was relevant insofar as it affected the level of integration and the possibility of previous integrative links not having been broken, a matter upon which the courts based their decisions subsequent to the judgment in Tsakouridis and which was the basis for the findings of the CJEU in MG when considering the "maybe cases" as referred to in Warsame. Those cases all pre-dated the First-tier Tribunal's decision and would thus have been known to the appellant's representative when making the concession that he did.

19. Accordingly, it seems to me that there is no reason to treat the concession made on behalf of the appellant before the First-tier Tribunal as invalid or withdrawn. Whilst I am not aware of the precise reasoning behind the concession, other than it was to some extent based on the previous findings of the Upper Tribunal, the fact remains that the appellant was legally represented by counsel who would have been fully appraised of all the recent relevant jurisprudence relating to the acquisition of enhanced protection and to the emphasis placed on integration in that jurisprudence. It cannot be the case that a concession should be treated as withdrawn or treated differently because of subsequent possible developments in the law which are no more than speculative.

20. In any event, it seems to me that, on the findings made by the First-tier Tribunal, which have not been challenged, the appellant could not have succeeded, and cannot succeed, in establishing that he had acquired the enhanced level of protection in regulation 21(4). The judge, having full regard to the appellant's length of residence in the UK prior to his imprisonment and thereafter and to the age and circumstances in which he came to the UK, as well as to his lack of ties to Sweden and all other relevant circumstances, made clear findings on rehabilitation and integration, concluding that there was no more than a possibility of rehabilitation in the UK whereas there were reasonable prospects of rehabilitation in Sweden and that that was relevant to the question of integration. When considering such findings in the context of the CJEU's decision in MG, at [38], it seems that the only answer has to be that the appellant's integrative links to the UK have been broken by his latest offending and imprisonment, taken in light of his previous offending history and imprisonment, and that he cannot therefore show himself entitled to the enhanced level of protection. Accordingly the judge properly proceeded to determine the appeal on the "serious grounds" protection level.

21. As for the very last point made by Ms Bond, namely that the judge's decision on the "serious grounds" level was unjustified, that appears to me to be an attempt to widen the grounds of appeal, whereas that was not the basis of the challenge and the judge's findings in that regard had not previously been challenged. I do not consider it open to the appellant to seek at that very last stage to challenge the judge's conclusions in that respect. In any event it seems to me that the judge's assessment was a very careful and thorough one, including all relevant matters, and that he was perfectly entitled, for the reasons fully and cogently given, to conclude that there were serious grounds of public policy and public security justifying the appellant's deportation.

22. For all of these reasons I conclude that the grounds of appeal do not disclose any errors of law in the First-tier Tribunal's decision requiring the decision to be set aside.

DECISION

23. The appellant's appeal is accordingly dismissed. The making of the decision of the First-tier Tribunal did not involve an error on a point of law, such that the decision has to be set aside. I do not set aside the decision. The decision to dismiss the appellant's deportation appeal therefore stands.

Signed Date
Upper Tribunal Judge Kebede