Tribunal decisions

The decision

IAC-AR-AR-V1

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: DA/00564/2016

THE IMMIGRATION ACTS

Heard at Royal Courts of Justice
Decision & Reasons Promulgated
On 27 March 2017
On 29 March 2017

Before
UPPER TRIBUNAL JUDGE FINCH

Between
LUIS PACHECO
(NO anonymity direction MADE)
Appellant
and

SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: He appeared in person
For the Respondent: Mr. E. Tufan, Home Office Presenting Officer

DECISION AND REASONS

1. The Appellant, who was born on 2 October 1985, is a national of Portugal. It is the Appellant’s case that he entered the United Kingdom in 2013. On 23 June 2015 he was cautioned for criminal damage. On 6 January 2016 he was given a conditional discharge for two years for battery and criminal damage and fined for failing to surrender to custody. On 20 February 2016 he was fined £100 for shoplifting and £100 for common assault. Finally on 21 September 2016 he was imprisoned for ten months for wounding and shorter concurrent sentences were given for affray and battery.

2. It is clear from Judge Barklem’s sentencing remarks on 21 September 2016 that his offending had resulted from alcohol abuse and that during the last incident the Appellant had caused a nasty injury to the foot of another man.

3. On 17 October 2016 the Respondent decided to deport the Appellant from the United Kingdom. A deportation order was signed on 9 January 2017 under regulation 19(3)(b) of the Immigration (European Economic Area) Regulations 2006 (“the Regulations”) on the basis that his deportation was justified on public policy grounds.

4. As there was no contention that the Appellant had been here for at least five years, disregarding any periods of imprisonment, the Respondent did not have to establish that there were serious grounds of public policy. However, as the decision to deport the Appellant was taken under regulation 19, it was necessary to take into account the principles contained in regulation 21(5). In particular, the following principles had to be taken into account:

“(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”.

5. Regulation 21(6) also states that:

“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”.

6. The Appellant appealed against the decision to deport him and First-tier Tribunal Judge Trevaskis dismissed his appeal on 24 January 2016. Permission to appeal to the Upper Tribunal was granted by First-tier Tribunal Judge Gillespie on 20 February 2017. As the Appellant was not legally represented he considered whether there were an “Robinson obvious” points that needed to be taken into account and found that the First-tier Tribunal Judge had not given any, or any adequate, reasons for a finding in paragraph 29 of his decision that the Appellant’s personal conduct represents a “genuine, present and sufficiently serious threat affecting one of the fundamental interests of society”.

Error of Law Hearing

7. At the error of law hearing, Mr. Tufan submitted that the First-tier Tribunal Judge had reminded himself of the substance of regulation 21(5)(c ) in paragraph 29 of his decision and reasons. He also submitted that the Judge had looked at the Appellant’s criminal history and taken into account the fact that his offending behaviour was escalating. He also referred me to paragraphs 32 and 34 of the decision and reasons. He accepted that the First-tier Tribunal Judge had erred in law in paragraph 35 of his decision and reasons when he referred to paragraph 399(a) and (b) of the Immigration Rules but noted that the evidence did not confirm that the Appellant was exercising any EU Treaty rights.

8. The Appellant submitted that he had not previously offended and that he was now being rehabilitated and had addressed his alcohol abuse. He also drew the Tribunal’s attention to the fact that his girlfriend was in court and that she was in regular contact with him and was supporting him.

9. Mr. Turfan relied on the fact that the First-tier Tribunal Judge had referred to the test in regulation 21(5)(c ) in paragraph 29 of his decision and reasons. However, that paragraph does not contain any reasons for finding that the Appellant’s personal conduct constitutes a genuine, present and sufficiently serious threat affecting one of the fundamental interests of society. Mr. Turfan also referred to the Appellant’s offending history but regulation 21(5)(e) clearly states that “a person’s previous criminal convictions do not in themselves taking a decision on public policy grounds”.

10. Mr. Turfan then referred to paragraph 32 of the First-tier Tribunal Judge’s decision and reasons but in this paragraph he was addressing the principles contained in regulation 21(6) not regulation 21(5)(c ). In addition, Mr. Turfan referred to paragraph 34 but in this paragraph the First-tier Tribunal Judge did no more than conclude that the decision to deport the appellant was justified on grounds of public policy or public security, for the reasons given above. He did not actually provide any reasons to compensate for the lack of reasoning in paragraph 29 of his decision and reasons. Furthermore, any evidence relating to the extent to which the Appellant had been exercising a Treaty right did not go to the question of whether he posed a genuine, present and sufficiently serious threat affecting one of the fundamental interests of society.

11. There was evidence which went to this issue that was not taken into account or referred to. For example, the Appellant’s offending took place within a relatively short period of time, namely between 22 June 2015 and 10 March 2016. It was only the offences which were committed on 10 March 2016 which led to a custodial sentence. When giving his sentencing remarks, Judge Barklem noted that the Appellant had pleaded guilty at the first opportunity and that he had obviously understand that he had to face the consequences of his actions. Judge Barklem also noted that he had read and was impressed by the achievements made by the Appellant in prison. In particular, he said that he was impressed by a letter from a member of Alcoholics Anonymous who had indicated that he is going to be acting as a temporary mentor for the Appellant.

12. The sentencing remarks confirmed that his offending was a consequence of alcohol abuse and they also indicated that the Appellant was addressing his abuse issues. Therefore, the First-tier Tribunal Judge was incorrect to find in paragraph 31 of his decision that “the appellant has not engaged effectively in any form of rehabilitation in the United Kingdom, nor was there any evidence that he intends to do so”.

13. The First-tier Tribunal Judge also said that he had not seen any evidence that the Appellant had completed any courses relating to offending behaviour and victim impact, other than apparently offering an apology to his victims”. However, the Appellant was put in touch with Alcoholics Anonymous whilst in detention.

14. The principle contained in regulation 21(5)(a) had also not been addressed. This is a different form of proportionality exercise from that required by regulation 21(6). A citizen of the European Union has a primary and individual right to reside and any restriction on that right has to be narrowly construed.

15. For these reasons I am satisfied that First-tier Tribunal Judge Trevaskis did make material errors of law in his decision and reasons.

DECISION

(1) The Appellant’s appeal is allowed.

(2) The decision by First-tier Tribunal Judge Trevaskis is set aside.

(3) The appeal is remitted to the First-tier Tribunal for a de novo hearing before a First-tier Tribunal Judge, other than First-tier Tribunal Judge Trevaskis.

Nadine Finch

Signed Date 27 March 2017

Upper Tribunal Judge Finch