Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: DA/00587/2015

THE IMMIGRATION ACTS

Heard at Stoke
Decision & Reasons Promulgated
On 27 March 2017
On 28 March 2017

Before

UPPER TRIBUNAL JUDGE HANSON

Between

ARTUR LIMAN
(Anonymity direction not made)
Appellant
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: no appearance
For the Respondent: Mr C Bates Senior Home Office Presenting Officer

DECISION AND REASONS

1. This is an appeal against a decision of First-tier Tribunal Judge Parkes (‘the Judge’) promulgated on 20 December 2016 in which the Judge dismissed the appellant’s appeal against the decision to deport him from the United Kingdom made pursuant to the relevant provisions of the Immigration (European Economic Area) Regulations 2006 (as amended).
2. Permission to appeal was granted by another judge of the First-tier Tribunal on 10 January 2017 in the following terms:

“the grounds of appeal assert that the Judge erred in his application of the imperative grounds test and thus reached an irrational conclusion. In the grounds it was pointed out that the Imperative grounds test connotes a very high threshold and that the judge’s findings failed to show that the correct tests had been applied.”

3. Notice of the date of the Initial hearing was sent to the parties and the applicant’s legal representatives. By letter dated 15 March 2017 dicksons solicitors advised the Upper Tribunal they were without instructions from their client and without funding to proceed. They were therefore unable to attend the hearing to represent the appellant on this occasion. The solicitors further advised that the appellant has been given every opportunity to confirm his instructions to them but failed to do so. The representatives have advised the appellant that they will be updating the Tribunal and Home Office of this change in circumstances and that he should make sure that his partner attends the hearing on his behalf given that he remains out of country.
4. Notwithstanding the clear acknowledgement of service of a notice confirming the time, date, and venue of the hearing, there has been no attendance on the appellant’s behalf to pursue his challenge.

Error of law

5. The Judge was clearly aware that the test was that at the higher end of the spectrum. The Judge found that the appellant had lived in the United Kingdom in excess of the required 10-year period to attract the higher level of protection. The Judge noted the evidence provided by the appellant’s partner, including a history of personal and domestic issues and difficulties which she stated the appellant reacted to angrily and, without thinking, leading him during several arguments to storm out of the house and drive off. The Judge noted the appellant drove in defiance of court imposed bans, without insurance, when he had had too much to drink, and when using a telephone.
6. The Judge found at [19] that the evidence now available from HMRC showed the appellant had been working in the UK for over 10 years and that the time spent in prison did not take his aggregated total below that figure. The Judge noted there was evidence of the appellant having children and that his partner has a child, although the evidence of his involvement was limited and there was no evidence to show that the partner had been unduly affected by the appellant’s current absence from the UK or that his readmission would be required to meet the children’s best interests [19].
7. The important elements of the decision under challenge are to be found at [20 – 23] in the following terms:

20. However, the focus of this appeal is whether the Appellant’s exclusion from the UK is imperative. As stated the danger that he has repeatedly created should not be minimised and his failure to appreciate that is deeply troubling as is the role of his partner in what took place. Against that the Appellant has not been convicted since December 2015 but that was only shortly before the Secretary of State sought to deport him and so he is now aware of the intention of the Secretary of State and has had a clear incentive to behave as he should. This will have been reinforced by his current exclusion.

21. Although there was a gap in the Appellants record from October 2013 to December 2015 the fact cannot be avoided that in August 2015 he was caught driving while disqualified and again in September 2015 along with the battery and then in December 2015 he was convicted of failing to provide a sample of breath for analysis in the August incident. There is no evidence to show that he has taken any formal steps to address the problems that his partner gave evidence about. The Appellants pleas in his written statement for a second chance highlights his failure to take the chances he has had over the years with the various sentences he has had and the opportunities he could have taken for rehabilitation but did not.

22. The repeated nature of the Appellants offending, and in the same manner repeatedly in breach of court orders and whilst drunk are such that, with there being no evidence that he has undertaken any courses in Poland or the UK to address his behaviour, I find that the high threshold of imperative grounds is met. The Appellant’s failure to address his issues over such a long period of time reinforces the view that he is serious danger to others and that public protection from such behaviour justifies his exclusion on that basis.

23. In reaching this decision I have had regard to his work and family history in the UK and that the decision must be guided by the danger that he currently presents and that it must be proportionate to the integration and family ties that he has. His offending reduces the ability of the Appellant to claim that he is as integrated as he could be and his family life appears to have been a contributing factor to his offending behaviour rather than a brake on it. As noted the evidence does not show his absence has had a significant effect on any of the children he has fathered or live with in the UK.

8. Whilst it is accepted that some judges may not have made this decision that is not the relevant test. In LG (Italy) v SSHD the Court of Appeal confirmed that an EEA national who had been here for 10 years can only be deported on imperative grounds of public security, which bear a qualitative difference to the less stringent grounds applicable to deportation of those with shorter residence. Imperative connoted a very high threshold and the ground requires an actual and compelling risk to public security, though public security need not be equated to national security. The Court said that “risk to the safety of the public or a section of the public” seemed reasonably consistent with the ordinary meaning of the test. The Court also seemed to be of the opinion that the severity of the offence committed was not necessarily one to make removal “imperative”.
9. In VP(Italy) v SSHD 2010 EWCA Civ 806 the Court of Appeal endorsed LG (Italy) and said that imperative grounds of public security required not simply a serious matter of public policy but an actual risk to public security so compelling that it justified an exceptional course of removing someone who had become integrated by many years’ residence in the host state. The severity of the offence could be a starting point for consideration but there had to be something more to justify a conclusion that that removal was imperative to the interests of public security.
10. The Judge clearly concluded that the risk of reoffending was high. This is a finding arguably based upon the appellant’s immigration and offending history, the written and oral evidence received, and the established pattern of repeated offending behaviour, with a lack of any evidence to show that there have been positive attempts by the applicant to deal with the underlying problems that may reduce the risk of a repeat of such conduct in the future.
11. The Judge took as a starting point the severity of the offending which it was found posed a real and credible danger of a significant and unacceptable manner [18].
12. The quantitative assessment required by the case law related to the issue of whether there was an actual risk to public security so compelling that it warranted the exceptional course of removing somebody who been integrated into the United Kingdom for many years. A reading of the decision shows the Judge applied the correct test when assessing the nature of any such risk and was fully aware of the high threshold required for such a test to be met. The assertion in the grounds that the conclusion reached by the Judge is irrational is not arguably made out. The Judge clearly struck a balance between the exceptional nature of the threat to public security as a result of the personal conduct of the appellant when the expulsion decision was made by reference to the sentences imposed, the nature of the criminal activity, and the real risk of reoffending on the one hand and on the other hand the social rehabilitation of the appellant in United Kingdom as per the test in Tsakouridis [2010] EUECJ C-145-09.
13. It has not been made out that the decision is one not reasonably available to the Judge on the facts or that the core finding is so unreasonable that no reasonable person acting reasonably could have made it.
14. The appellant has therefore failed to establish legal error material to the decision to dismiss the appeal.

Decision

15. There is no material error of law in the First-tier Tribunal Judge’s decision. The determination shall stand.

Anonymity.

16. The First-tier Tribunal did not make an order pursuant to rule 45(4)(i) of the Asylum and Immigration Tribunal (Procedure) Rules 2005.

I make no such order pursuant to rule 14 of the Tribunal Procedure (Upper Tribunal) Rules 2008.

Signed……………………………………………….
Upper Tribunal Judge Hanson

Dated the 27 March 2017