Tribunal decisions

The decision

IAC-AH-DP-V1

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: DA/00632/2015

THE IMMIGRATION ACTS

Heard at Stoke-on-Trent
Decision & Reasons Promulgated
On 9 February 2017
On 27 March 2017

Before

UPPER TRIBUNAL JUDGE CLIVE LANE

Between

elroy jose alverez llerandi
(ANONYMITY DIRECTION not made)
Appellant
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: In Person
For the Respondent: Mr Bates, Senior Home Office Presenting Officer

DECISION AND REASONS
1. The appellant, Elroy Jose Alverez Llerandi, was born on 24 October 1990 and is a citizen of Spain. By a decision promulgated on 25 October 2016, I found that the First-tier Tribunal had erred in law such that the decision fell to be set aside. My reasons for reaching that finding was as follows:
1. I shall refer to the appellant as the respondent and the respondent as the appellant (as they appeared respectively before the First-tier Tribunal). The appellant, Eloy Jose Alverez Llerandi, was born on 24 October 1990 and is a citizen of Spain. He has been living in the United Kingdom since the age of 2 years. He was cautioned for shoplifting in August 2014 and again in March 2005 for criminal damage. Between 13 September 2005 and 17 June 2015 he was convicted 22 times for a total of 36 offences including possession of class A drugs and in possession with intent to supply, criminal damage, theft, assault, threatening behaviour, handling stolen property and breach of a court order. He received a variety of sentences including fines, community orders, conditional discharges, custodial sentences varying between ten days and four years’ imprisonment. By a decision dated 17 December 2015, the respondent decided to deport the appellant from the United Kingdom. He appealed against that decision to the First-tier Tribunal (Judge A W Khan) which, in a decision promulgated on 22 July 2016, allowed the appeal. The Secretary of State now appeals, with permission, to the Upper Tribunal.
2. At the appeal hearing at Stoke on Trent on 5 October 2016, the appellant appeared in person. I was careful to explain the procedure of the Tribunal to the appellant. I asked him to notify me if he did not understand any part of the proceedings.
3. The first ground of appeal concerns a material misdirection in law. Judge Khan found that the appellant was entitled to the highest level of protection (imperative grounds) on the basis that as an EU citizen he had been living in the United Kingdom for ten years prior to being in prison. At [17], he wrote that:
The appellant had resided in the UK for more than ten years up until the time of his first custodial sentence. Therefore in my view the respondent cannot seek to deport him except on imperative grounds. ...
4. The Secretary of State submits that Judge Khan failed to have regard to current jurisprudence in particular MG (Directive 2004/38/EC) case C-400/12 or to Warsame [2016] EWCA Civ 16, in particular at [9]:
Be all that as it may, Mr Greatorex submits that FV (Italy), on which the second Upper Tribunal determination depended, is no longer good law. He further submits that any sentence of imprisonment in the ten years before the deportation order must in principle prevent an applicant from accruing 10 years' residence. He accepts that there is a "maybe" category of cases under MG (Portugal) where a person has resided in the host state during the ten years prior to imprisonment, depending on an overall assessment of whether integrating links have been broken, and that in such cases it might be relevant to determine, by way of overall assessment, the degree of integration in the host member state or the extent to which links with the original member state have been broken. But he submits that in this case there was no continuous 10 year period of residence before the first imprisonment in 2007 and that, if the appellant wanted to show that there were separate periods of non-imprisonment which added up to 10 years, it would be up to him to show that, which Mr Warsame has not sought to do. If Mr Warsame wanted, in that connection, to argue that it was not the length of the term of imprisonment imposed but the length of the term actually served, it would be up to him to do so.
5. Calculating backwards from the date of the decision to deport the appellant to Spain (17 December 2015) the ten year period has been broken by periods of imprisonment, most recently on 17 June 2015 when the appellant was convicted of possessing a controlled drug (class A) and breach of a suspended sentence and sentenced to a total of eighteen months’ imprisonment. It follows that Judge Khan’s analysis at [17] is wrong in law. However, as the grounds of appeal acknowledge, the appellant may fall into the category of a “maybe” case as identified in Warsame. In order to show that he is entitled to the higher level of protection, he will need to show a continuous period of ten years’ residence (without interruption by periods or a period of imprisonment). That may be possible given that the appellant arrived in 1992 at the age of 2 years and his first criminal offending appears to have occurred when he was 14 years old. However, he will also need to show (per Warsame) whether “integrated links have been broken .. [and whether] by way of overall assessment the degree of integration with the host member state or the extent to which links with the original member state have been broken.”
6. I told the appellant that I would set aside the First-tier Tribunal decision and that I would give him the opportunity to adduce evidence (most obviously from close family members) dealing with ”links with the original member state (Spain)” and the extent to which the appellant’s criminal conduct has disrupted his integration in United Kingdom society. I asked the appellant to obtain written evidence from the witnesses whose evidence he intended to call at the resumed hearing. If he obtains such evidence, he should send written statements to the respondent and also to the Upper Tribunal. The appellant himself should attend on the next occasion as should any witnesses for the purposes of cross-examination.
Notice of Decision
The decision of the First-tier Tribunal promulgated on 22 July 2016 is set aside. The Upper Tribunal shall re-make the decision following a resumed hearing at Stoke on Trent before Upper Tribunal Judge Clive Lane.
No anonymity direction is made.
2. Following a resumed hearing at Stoke-on-Trent on 9 February 2016, I reserved my decision. I now give that decision together with my reasons.
3. At the resumed hearing I heard evidence from the appellant himself and also from his mother, Mrs Simpson. I have no reason to doubt the evidence given by either the appellant or his mother (indeed, their testimony was not challenged in any way by Mr Bates, for the respondent). In brief, I was told that the appellant came to the United Kingdom when he was 2 years old but he was unable to live with his mother (Mrs Simpson) who had come before the appellant in order to study here. He does not have and has never had any relationship with his father who lives in Madrid. Indeed, the appellant has never visited Spain. He has spent his entire life from the age of 2 living in the United Kingdom. The appellant was (as he said himself) a “troubled teenager” who was expelled from high school before completing any qualifications. He has obtained some qualifications whilst in prison and subsequently (City and Guilds certificate; NVQ). However, he has found it difficult to find work and now seeks an apprenticeship. After living some distance from his mother for most of his life, he now lives in the Stoke-on-Trent area where she also lives. They do not live together because the appellant has had a troubled relationship with his stepfather, Mr Simpson. However, Mrs Simpson told me that that relationship has now improved in recent years and the appellant visits her home every week.
4. As I identified in my previous decision as to the error of law [5] I need to apply the principles set out in the case of Warsame [2016] EWCA Civ 16 in particular [9] (see above). The question is whether the appellant had been able to show the “integrated links had been broken .. [and whether] by way of overall assessment with a degree of integration with the Host Member State or the extent which links with the original Member State have been broken”.
5. I consider it to be significant that the appellant has, since he was a very small child, never visited Spain at all. Of equal significance is the fact that the appellant has (apart from his father who abandoned him very early in his life) no blood relatives living in Spain. The reason for this is that the appellant’s mother is of Peruvian descent. Mrs Simpson told me that she has no contact whatever with her Peruvian family. The appellant has spent more than ten years of continuous residence in the United Kingdom without interruption by periods of imprisonment, that is between the ages of 2 years and 14 years. As Mr Bates put it, there are “no obvious signs of a failure to integrate into United Kingdom society”. As regards Spain, the appellant has never established any links whatsoever with the country of his nationality, let alone witnessed the breaking of any such links. Mr Bates submitted that there was a large United Kingdom ex-patriot community living in Spain with whom the appellant might seek to integrate. I have to query whether needing to rely upon establishing links with an ex-patriot community actually amounts to establishing any links with Spanish society itself. In my analysis, it does not. I find that the appellant has enjoyed a period of ten years continuous integration in the United Kingdom society before his criminality commenced and that he has no ties whatever with Spain nor has he ever enjoyed such ties. It follows that, notwithstanding the very severe nature of his criminality (possession with intent to supply Class A drugs, criminal damage, theft, assault, threatening behaviour and handling stolen property), on the application of Regulation 21(4) of the 2006 Regulations, the appellant should not be deported except on imperative grounds or grounds of pubic security which I find, on the particular facts of this appeal, have not been established. In consequence, the appellant’s appeal against the decision of the Secretary of State dated 17 December 2015 is allowed.

Notice of Decision
This appeal is allowed.
No anonymity direction is made.

Signed Date 20 March 2017

Upper Tribunal Judge Clive Lane