The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: DA/00629/2018


Heard at: Manchester Civil Justice Centre
Decision & Reasons Promulgated
(remote hearing)

On 29th November 2021
On 06th December 2021




Secretary of State for the Home Department

Przemyslaw Adam Kasperski
(no anonymity direction made)

For the Appellant: Mr McVeety, Senior Home Office Presenting Officer
For the Respondent: Mr Nathan of Counsel instructed by Duncan Lewis & Co

1. The Respondent is a national of Poland born on the 6th September 1980. As an EEA national exercising treaty rights he has acquired, it is agreed, a right to permanent residence under the Immigration (European Economic Area) Regulations 2016. The Secretary of State nonetheless wishes to deport him. That is because the Respondent has been convicted of 6 offences including possession of a Class B drug (amphetamine), possession of a prohibited weapon, using threatening behaviour, sending offensive/indecent material and possession of indecent images of a child. I am told that he is also subject to a Sexual Harm Prevention Order.
2. On the 3rd June 2021 the First-tier Tribunal (Judge K Swinnerton) allowed his appeal, finding that the Secretary of State had failed to established that there were serious grounds of public policy and public security justifying deportation.
3. The Secretary of State now has permission to appeal against the decision of the First-tier Tribunal on the following grounds:
i) There are no or insufficient reasons given for the Tribunal's conclusion;
ii) The Tribunal misdirected itself by failing to have regard to all of the relevant requirements under Regulation 27 or to the considerations in Schedule 1 of the Immigration (European Economic Area) Regulations 2016.
Discussion and Findings
4. For the Respondent Mr Nathan urged me to uphold the decision. Whilst he accepted that the decision makes no reference to the public interest factors set out at Schedule 1, he submitted that this cannot itself be fatal to a decision in which the Tribunal was plainly aware of the relevant matters. He further acknowledged that perhaps the fault, if any, lay at the door of the representatives, himself included, neither of whom had brought Schedule 1 to the Judge's attention. As to the reasons challenge Mr Nathan submitted that at paragraphs 24-30 the Judge reviews all of the relevant criteria, and that even where the Judge has not used a form of words such as "I therefore find?" or "I accept?" the import of the reasoning is clear.
5. Whilst I appreciate the submissions made by Mr Nathan in defence of this decision the real difficulty is this: the losing party is entitled to understand why she has lost, and that is not at all clear here. Although all of the narrative referred to by Mr Nathan falls under the heading "Findings of Fact and Reasons" the key passages, which might be interpreted as reasons, are either findings against the Respondent, or are simply a record of the submissions made.
6. The 'findings' start at paragraph 24 which is a recitation of the evidence that the Appellant has not seen his young daughter for some time. Paragraph 25 is a discussion of the evidence which leads to the conclusion that the Appellant does not enjoy integrative links with the UK.
7. At paragraph 26 the Tribunal reminds itself of the operative test at Regulation 27(5). This paragraph contains no finding.
8. Paragraph 27 records what "is contended" on the then appellant's behalf in respect of his risk of re-offending; the only sentence which might amount to a finding is the fact that any tribunal would find the child pornography charge "very troubling".
9. Paragraph 28 states that the "attention of the Tribunal was drawn" to the evidence that the Respondent was eventually permitted unsupervised access to his daughter, but again no finding on the relevance of that is made. I would observe that if, as Mr Nathan suggests, this paragraph should be read as a finding that the Respondent is not considered a risk to children, then this should have been expressly stated, with some reference made to the Secretary of State's assertion that he remains subject to a Sexual Harm Prevention Order.
10. At paragraph 29 we find that "Mr Nathan for the Appellant pointed to?" the fact that the longest sentence imposed on the Appellant has been 9 months; "it was submitted that the only offence of the Appellant which came near to 'serious grounds' was the offence relating to two indecent images of a child; "reference was made" to there being no OASS (sic) report. Nowhere does the Judge give an indication of his response to Mr Nathan's submissions.
11. Paragraph 30 leads to a finding that as far as drugs are concerned, there remains a risk of the Appellant re-offending.
12. All of this - three expressly negative findings and a summary of submissions made on the Appellant's behalf - then leads to the global conclusion expressed at paragraph 31: "I am not persuaded on a balance of probabilities that there serious grounds of public policy and public security for deporting the appellant".
13. I satisfied that the Secretary of State's grounds are made out. Although the Tribunal has obviously surveyed the evidence, it cannot be said that it has reached a clear, reasoned finding on why that evidence leads to the conclusion expressed at paragraph 31. It is not sufficient to summarise the submissions made on behalf of a party but make no findings on them. It may be, as Mr Nathan suggests, the Judge intended to say "I accept the submissions of Mr Nathan?" but having regard to the decision overall I am unable to say whether that it in fact correct. It follows that the decision must be set aside, but in the circumstances I am prepared to remit is specifically to Judge Swinnerton so that the paragraphs I have referred to may be refined/revisited.
14. I note that at paragraphs 24-25 the First-tier Tribunal makes findings on whether the Respondent can demonstrate that he has integrative links in the UK so that the decision to deport him would be disproportionate. It concludes that he cannot. Before me Mr Nathan gave some thought as to whether those matters are challenged; upon reflection he decided that he was content for the matter to be remitted to Judge Swinnerton with those findings preserved.
15. The matter is therefore remitted for Judge Swinnerton to remake his own decision, having regard to those matters set out at Schedule 1 of the Immigration (European Economic Area) Regulations 2016, and making clear findings on whether there are serious grounds of public policy or public security such that deportation is justified. In her written grounds the Secretary of State makes reference to the Appellant being subject to a Sexual Harm Prevention Order. The parties should be prepared to address Judge Swinnerton on the following matters: is that correct, is the order still in force, what are the legal requirements for such an order being imposed and what relevance does it have for the disposal of this appeal?

Decision and Directions
16. The decision of the First-tier Tribunal is flawed for error of law and it is set aside to the extent identified above.
17. The decision is to be remade in the First-tier Tribunal by Judge Swinnerton.
18. There is no order for anonymity.

Upper Tribunal Judge Bruce
29th November 2021