Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: DA/00550/2015

THE IMMIGRATION ACTS

Heard at Glasgow
Decision & Reasons Promulgated
on 19 September 2016
on 20 September 2016

Before

UPPER TRIBUNAL JUDGE MACLEMAN

Between

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Appellant
and

KLAUS TESCH
Respondent

For the Appellant: Mrs M O'Brien, Senior Home Office Presenting Officer
For the Respondent: Mr H Ndubuisi, of Drummond Miller, Solicitors

DETERMINATION AND REASONS
1. The SSHD appeals against a determination by First-tier Tribunal Judge Handley, allowing an appeal against deportation under the Immigration (EEA) regulations 2006, on the following grounds:
?
(b) ? the judge failed to answer the direct question asked by regulation 21 (5) (c); namely, does the appellant represent a genuine, pleasant and sufficiently serious threat.
(c) The judge finds that the appellant has not offended in the UK, other than the one instance where he did offend. The SSHD submits that the appellant's conduct is not indicative of someone who has broken the cycle of criminality as opined: it was the SSHD's position ? that there were gaps between the appellant's offending behaviour and, therefore, it could not be said that he was fully rehabilitated nor that recidivism was anything other than an extant possibility.
(d) The judge fails to engage with the evidence that weighs against the appellant such as his continued use of alcohol and his failure to address his offending triggers. While it is the appellant's evidence that he drinks only occasionally, the judge fails to engage with why such evidence should be accepted given that the offending in this case primarily relates to dishonesty.
(e) Furthermore while the evidence [of the witness Ms Kerpiene] has been given some weight it is not clear how much weight nor how reliable her evidence is: her alliances are clearly to the appellant and she is not, therefore, an objective source of evidence.
(f) It is not clear to what extent Mr Anderson knows the appellant, nor whether he was asked about, and had any knowledge of, the appellant's alcoholism. Irrespective, the SSHD submits that the evidence does not directly address whether there remains an extant risk of reoffending
(g) The SSHD accordingly asserts that the judge has sidestepped the direct question asked by regulation 21(5)(c) and has failed to provide adequate and intelligible reasons for concluding that the risk posed by the appellant is anything but present, genuine and sufficiently serious.
2. Mrs O'Brien submitted that the judge had "name checked" the question posed by regulation 21(5)(c), but in substance had failed to answer it. She said that in essence the challenge was to lack of reasoning.
3. I indicated that the SSHD's appeal to the UT would not succeed.
4. The appellant offended in Germany in 1987 to 2000, and in the UK in 2011. The FtT drew from the facts before it that he had "been able to break the cycle of re-offending" (paragraph 26) and that he did not represent "a genuine, present and sufficiently serious threat to the public of the UK" (paragraph 27). Despite the best efforts of the presenting officer to make something of the unpromising grounds, I am unable to find that they yield any cogent proposition of legal error. Rather, they are reassertion and disagreement wrapped up in some high-flying verbiage.
5. No anonymity direction has been requested or made.
6. The determination of the First-tier Tribunal, allowing the appeal brought by Mr Tesch, shall stand.

19 September 2016
Upper Tribunal Judge Macleman