(Immigration and Asylum Chamber) Appeal Number: da/00630/2018
THE IMMIGRATION ACTS
Heard at Birmingham CJC
Decision & Reasons Promulgated
On 25 October 2019
On 13 November 2019
UPPER TRIBUNAL JUDGE O'CONNOR
THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
(ANONYMITY DIRECTION NOT MADE)
For the Appellant: Mrs H Aboni, Senior Presenting Officer
For the Respondent: Mr M Mohzam, of Burton and Burton Solicitors
DECISION AND REASONS
(Decision given orally on 25 October 2019)
1. The appellant before the Upper Tribunal is the Secretary of State for the Home Department. I shall refer to Mr [B] as the claimant herein.
2. The claimant is a Lithuanian national born in 1996. He appealed to the First-tier Tribunal against a decision of the Secretary of State of 20 July 2018 to remove him from the United Kingdom - a decision taken pursuant to regulation 23(6)(b) of the Immigration (European Economic Area) Regulations 2016.
3. The First-tier Tribunal allowed that appeal, concluding that the claimant did not represent a genuine, present and sufficiently serious threat to the fundamental interests of the United Kingdom. Tribunal Judge Feeney granted the Secretary of State permission to appeal to the Upper Tribunal, paragraph 3 thereof stating:
"The judge has arguably erred in law by not providing adequate reasons as to why the appellant would face very significant obstacles to his integration into Lithuania and why he does not pose a genuine, present and sufficiently serious threat given the findings the judge made in paragraph 24 of the decision."
4. For the reasons which follow, Mr Mohzam accepted, on behalf of the claimant, that the First-tier Tribunal's decision contains an error of law and that it should be set aside. I concur.
5. The claimant entered the United Kingdom as an EEA national in 2007, when he was just 11 years old.
6. The trigger for the Secretary of State's decision to remove the claimant was the claimant's conviction at Lincoln Crown Court of possessing Class B controlled drugs with intent to supply and supplying Class B controlled drugs, for which he was sentenced to a term of fifteen months' imprisonment.
7. It is prudent to identify at this stage that the claimant had by this time accumulated a number of convictions, albeit for lesser offences. The claimant was cautioned on 25 June 2013 for theft. Thereafter, the claimant was convicted on 8 February 2016 of "making false representation to gain for self or another or cause loss to other or expose risk", which led to a community order. On 22 February 2017, the claimant was convicted of "driving a motor vehicle with excess alcohol, using a vehicle whilst uninsured and driving otherwise than in accordance with a licence", leading to a fine and a disqualification from driving.
8. The core of the First-tier Tribunal's decision allowing the claimant's appeal, reads as follows:
"22. I find that the appellant's criminal behaviour did threaten one of the fundamental interests of society, that of tackling offences, such as those relating to the misuse of drugs, likely to cause harm to society. I also take account of the fact that the judge considered that the supply of drugs by the appellant had been ongoing on a regular basis for a period of a year.
23. I have to consider whether the appellant's conduct represents a genuine, present and sufficiently serious threat affecting one of the fundamental interests of society. I am hampered in this regard by the absence of an OASys Report or any kind of independent risk assessment of the appellant. Mr Mohzam brought this to my attention at the outset of the hearing but his instructions from the appellant were to proceed with the hearing in any event.
24. In attempting to assess future risk I note the fact that the appellant committed his offences while he was working - the fact that he has always worked has not prevented his offending. I also note the respondent's point that there is no evidence the appellant has undertaken any kind of course to address his offending behaviour. On the other hand, I take into account the fact that the judge found that the appellant was of previous good character; that his offence, though serious, was at the lower end of the scale of offences that trigger a decision to deport; and that these proceedings mean that the appellant now has the clearest possible indication that any future offending is highly likely to lead to his being swiftly deported.
25. On balance I find the appellant's conduct does not represent a genuine, present and sufficiently serious threat to one of the fundamental interests of society."
9. Mr Mohzam accepted, and I agree, that paragraph 24 of the First-tier Tribunal's decision contains the following two errors:
(i) The First-tier Tribunal erred in concluding that the claimant was of previous good character, by which I take it to mean he was of good character prior to the commission of the offence which led to his imprisonment. This is simply wrong. The appellant had received a caution and had two convictions prior to his most recent conviction. The First-tier Tribunal's conclusion appears to have been drawn from the sentencing remarks of the criminal judge who sentenced the claimant to fifteen months' imprisonment. However, the criminal judge did not state that the claimant was of previous good character, rather he stated that the claimant had no previous convictions relevant the sentencing exercise he was required to undertake;
(ii) The First-tier Tribunal erred in treating as a matter relevant to the assessment of the level of risk of the claimant reoffending, the fact that the offence for which the claimant was sentenced to fifteen months' imprisonment was at the lower end of the scale of the type of offences that might trigger a decision to remove/to deport,. There is no logical nexus between the two and, if the First-tier Tribunal concluded otherwise, then it was incumbent upon it to explain its rationale; for doing so.
10. Each of the aforementioned errors is sufficient to render the finding in paragraph 25 flawed.
11. In addition to the errors identified above, and accepted by Mr Mohzam, I find there are a number of further errors in the First-tier tribunal's decision. First, I find there is an absence of evidence to support the approach taken by the First-tier Tribunal in the last sentence of paragraph 24 of its decision. In addition, I conclude that the First-tier Tribunal erred in its consideration of whether there are very significant obstacles to the claimant's integration into life in Lithuania. Assuming such a consideration to be relevant at all, the First-tier Tribunal erred in failing to engage with the approach set out in Kamara and in failing to provide adequate reasons for the conclusion reached at paragraph 21 of its decision. I also have concern as to the lawfulness of the First-tier Tribunal's conclusion on the issue of whether the claimant has established a permanent right of residence in UK. There is no engagement at this juncture with the relevance of the claimant's time in the UK as a student.
12. Given all that I have said above, it seems to me appropriate for this appeal to be determined afresh. The significant level of fact finding that is required leads me to further conclude that it is appropriate to remit the matter to the First-tier Tribunal to undertake such a consideration.
The decision of the First-tier Tribunal is set aside
The appeal is remitted to the First-tier Tribunal to be determined de novo by a judge other than First-tier Tribunal judge Place
Upper Tribunal Judge O'Connor
8 November 2019