Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: DA/00695/2018

THE IMMIGRATION ACTS

Heard at Field House
Decision & Reasons Promulgated
On the 15th December 2021
On the 28th April 2022

Before
UPPER TRIBUNAL JUDGE OWENS

Between
MR MIKE SAMUEL OLA
(ANONYMITY ORDER NOT MADE)
Appellant
and
THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation
For the Appellant: Mr Chiraco, Counsel instructed by Chancery CS Solicitors,
For the Respondent: Mr Lindsay, Senior Home Office Presenting Officer

DECISION AND REASONS
1. The appellant is a national of Nigeria born on 6 May 1992. He appeals with permission against the decision of First-tier Tribunal Judge Davidge sent on 14 November 2019 dismissing his appeal against a decision dated 18 October 2018 to deport him from the UK pursuant to Regulation 23 of the EEA Regulations 2016.
2. This appeal comes to the Upper Tribunal by way of a “Cart” Judicial Review claim. Permission to appeal was originally refused by Upper Tribunal Judge Finch on 27 January 2020. Linden J granted permission on 7 July 2020. The Respondent did not request a substantive hearing or object to the grounds, further to which the High Court granted the application for judicial review, by quashing the previous refusal of permission. Permission to appeal to the Upper Tribunal was granted by Vice-President Ockelton on 5 August 2021.
The appellant’s Background
2. The appellant obtained a right of residence as the spouse of an EEA national exercising Treaty Rights in 2011. In 2014 he obtained a permanent right of residence following his divorce from his Dutch national spouse on the basis of his retained right of residence. He is in a relationship with a British national of Nigerian origin and has two British national children from this partner who were born in the UK in 2008 and 2009 respectively.
3. On 27 November 2017 the appellant was convicted at Isleworth Crown court of making false representations, to make gain for self or another or cause loss to others or expose others to risk and acquiring, using or possessing criminal property. He, with others, defrauded a 71-year-old man who had been recently widowed out of at least £21,000 under the pretence of being a female on a dating site. On 13 December 2017 at the same court, he was sentenced to 29 months imprisonment and ordered to pay £170 victim surcharge. Following this, the Secretary of State served him with a liability to deport Notice and on 18 October 2018 made a decision to deport him pursuant to Regulation 27 of the European Economic Area Regulations 2016. This was the decision under appeal before the First-tier Tribunal.
The Respondent’s Decision
5. The respondent decided that the removal of the appellant was justified on the grounds of public policy and public security in accordance with Regulation 23 and Regulation 27 of the EEA Regulations. The Secretary of State was satisfied that the appellant posed a genuine, present and sufficiently serious threat to the interests of public policy if he were allowed to remain in the UK because of the seriousness of the offence and the risk of reoffending. It was accepted that the appellant has obtained the middle tier level of protection against expulsion and that the decision must be justified on “serious grounds of public policy and security”. It was considered that the decision to remove is proportionate.
6. The appellant’s position before the First-tier Tribunal was that he is at low risk of reoffending, and he is remorseful. Further his partner and children are British, and it would not be proportionate to remove him.
The Decision of the First-tier Tribunal
7. It was agreed that the appellant has the middle level of protection. The judge heard evidence from the appellant and his partner. The judge considered the nature of the offending and the sentencing remarks of the Crown Court judge. The fraud was described as being “nasty, mean and sophisticated with significant planning”. The fraud took place over a period of time and the victim was a vulnerable old man who was deliberately targeted and played. The victim had a home and life savings and as a result of the fraud was left in a position when he was being forced to sell his home. There was no likelihood of the money being returned to him.
8. The judge noted the contents of the OASys assessment in which it was recorded that the appellant had indicated that he recognised the impact of his offending and would not offend in future because of the impact on his family from being in prison. The judge took into account a letter from probation services dated 16 October 2019 confirming that the appellant had attended all of his supervision appointments, was assessed as being at low risk of harm and of reoffending and was subject to a licence which expired in May 2020. The judge took into account the National Offender Management Service guidance on interpreting OASys information.
9. The respondent argued that although the risk of reoffending was low, the risk is of serious harm. She submitted that the appellant cannot support himself through his new business and will need to resort to criminal activity. He. It was submitted that his evidence was “expedient”. The appellant argued that the risk of reoffending was low. He was rehabilitated. He has set up a business to provide for his family. He has not associated with his co-accused or any bad influences since his release.
10. The judge made adverse credibility findings in relation to the appellant because of his evidence in respect of his previous use of aliases. He had previously used his flatmate’s identity when he arrived in the UK and supported this deception by using his flatmate’s ID card. The judge found that the appellant did not give a full and frank account. The judge concluded that on the evidence before him that the appellant does present as a genuine, present and sufficiently serious threat to a fundamental interest in society.
11. The judge turned to the issue of proportionality pursuant to Regulation 27(5) and (6). The judge addressed the appellant’s age, health and family circumstances, noting that the appellant had only lived with his partner and children since 2017 when he needed a bail address and that the partner did not want him to live with her, although he had visited regularly prior to his incarceration.
12. The judge took into account the absence of independent supporting evidence relating to the children and decided that it was in their best interests to remain with their mother and to continue to enjoy daily face to face contact with their father. The judge found that the mother could look after the children in the UK without the appellant and noted her evidence that should he be deported she and the children would remain in the UK. The judge noted that the partner was born in Lagos and continues to be a Nigerian national and that she has extensive experience of living in Nigeria as an adult. The judge found that there were no significant obstacles and that it would not be bleak or harsh for the family to relocate there. The judge took into account the length of residence. There was no evidence of residence prior to 2008. The judge found that the appellant has not established that he is significantly socially and culturally integrated in the UK. The judge also took into account the appellant’s economic circumstances. Having taken all of these factors into account the judge concluded that it was not disproportionate to deport the appellant.
13. It was agreed at the beginning of the hearing that if the appellant’s deportation could be shown to be proportionate under the Regulations, there was nothing additional to consider under the statutory regime at section 117C of the Nationality, Immigration and Asylum Act 2002. At [43] and [44] the judge went on to find in any event that the appellant did not meet either of the Exceptions under section 117C and there were no very compelling circumstances over and above the Exceptions which would render his deportation disproportionate.
The Grounds of Appeal
14. The grounds of appeal following the decision of the First-tier Tribunal were prepared by Victor Ogunbusola Chambers and are lengthy and poorly particularised.
15. Nevertheless, I set them out at length because they are the original grounds of appeal.
Ground 1: The judge erred in law pursuant to the authority of SSHD v Straszewski and Kersys [2005] EWCA Civ 1245 (“Straszewski principles”). The judge failed to construe the removal of the appellant restrictively, as an exception to the fundamental principle of the exercise of EU rights. The decision to remove an EEA national with a permanent right of residence must be based exclusively on the personal conduct of the person concerned and matters which do not directly relate to the particular case or which do not directly relate to the particular case or which relate to consideration of general prevention do not justify a removal decision.
Ground 2: The judge erred by failing to make a finding on a material matter. The judge failed to take into account the probation service letter that the appellant is at a low risk of harm. Where there is no real risk of reoffending, the threshold is not met.
Ground 3: The judge failed to make a material finding on a material matter. The judge failed to take into account the extent of any progress made by a person during the sentence and licence period in accordance with Essa (EEA -rehabilitation/integration) 2013 UKUT 00316.
Ground 4: The judge failed to assess proportionality properly. The judge failed to take into account that the appellant has not offended, has abided by the terms of his licence and bail. He has strong family life.
Ground 5: Failure to consider a material matter. The judge failed to appreciate that the appellant’s immigration was not precarious when he formed his relationship.
The Judge did not consider Huang v SSHD [2007] UKHL 11 and Razgar [2004] UKHL 27.
Ground 6: The unduly harsh assessment was in error. The judge failed to take into account KO (Nigeria) and ors v SSHD [2018] UKSC 53.
16. Additional grounds were raised before the Upper Tribunal. These are also confused and refer to a lack of reasoning, Devaseelan (Second appeals – ECHR Extra Territorial Effect) Sri Lanka [2002] UKAIT 00702 and a failure of the judge to consider the factors at s117A of the 2002 Act.
17. The judicial review grounds were prepared by a different counsel and elaborated and expanded on the original grounds.
18. The judicial review grounds focused on the Straszweski principles and the minimum procedural requirements for cases of this type where the appellant has a permanent right of residence in the UK as well as an argument that schedule 1 para. 7(h) of the EEA Regulations 2016 is incompatible with EU law in that it focuses on past conduct and wider public interest considerations rather than future risk and the personal conduct of the individual.
Rule 24 response
19. In the rule 24 response it is asserted that the judge directed himself appropriately and that “it is clear from the determination that the decision was based on the appellant’s previous criminality and his attempts to deceive the Tribunal at the hearing. It is submitted that it was clearly open for a Judge to conclude that an appellant who was content to lie to the Tribunal in his appeal was clearly someone who was not reformed or who would not reoffend in the future. The respondent’s view is that the judge was entitled to take into account the fact that the appellant had sought to lie to the Tribunal”.
Submissions
20. Both parties made oral submissions which are recorded in my record of proceedings and are referred to in my discussion below.
Discussion and Analysis
21. I will deal first with Grounds 1 to 3 of the original grounds which focus on the way in which the judge approached the question of whether the appellant poses a genuine, present and sufficiently serious threat affecting one of the fundamental interests in society such that his deportation is justified on serious grounds of public policy and security.
22. These grounds have been elaborated on in Mr Chiraco’s skeleton and submissions but they are amply covered by the original grounds of appeal.
23. I deal first with the Strawezski arguments. The appellant’s submission is that there are four cases relevant to the issue of whether someone with a permanent right of residence poses a genuine, present and sufficiently serious risk Straszewski, Goralczyk v SSHD [2019] SC 66 (Inner House of the Court of sessions); Robinson (Jamaica) v SSHD [2018] EWCA Civ 85 and R(Connell) v SSHD [2018] EWCA Civ 1329.
24. Mr Chiraco submitted that the principles governing the deportation of foreign criminals in general differ significantly from those which govern the deportation of EEA nationals who had acquired a permanent right of residence (see Straszewski [20]) and he set out the general principles which are as follows:
a) Decisions about EU law must look to the future and must be based on a genuine, present and sufficiently serious threat with an emphasis on the right of free movement.
b) The focus must be exclusively on the conduct of the individual. General considerations of deterrence cannot be relied on.
c) The exception to these principles (that is the focus on the future and on the individual nature of the risk) is narrow. Although the fact of the past conviction may in itself justify a deportation, this is only in very extreme cases or for the most heinous of crimes.
d) In other cases it will be necessary to look to the future. It is necessary to identify the threat which is feared.
e) In so far as future offending is concerned, it is necessary to consider how great is the risk of offending and how serious the offence will be if it is committed.
f) Given the seriousness of the offence and the level of risk there must be a sufficiently serious present threat
g) There must be an evaluation of the likelihood of reoffending.
h) This evaluative exercise must be undertaken.
i) The burden is on the secretary of state.
25. I understand the parties to be in agreement that these are the relevant provisions governing EEA deportation appeals and that, as someone with a permanent right of residence in the UK the Secretary of State’s power to remove the appellant him from the UK is narrowly circumscribed.
26. Mr Chiraco’s submission is that the judge has misdirected herself in law by failing to look separately at the risk of reoffending and the likelihood of reoffending as well as the harm that would occur were the offending to take place as well as whether the nature of the threat in principle justifies the deportation looking forward to the future.
27. Mr Lindsay argued that the judge had directed herself appropriately at [5] and [6] and set out the law in full at the end of the decision. From [9] it can be seen that the judge was aware that the deportation could only be justified on “serious grounds”. The judge was entirely correct in the approach to the burden and standard of proof. The judge also reminded herself at [20] that the conviction alone did not justify deportation. He submitted that it is inconceivable that a judge from a specialist tribunal would set out the correct test and then fail to apply it.
28. Although mindful that in general a judge of a specialist Tribunal would follow their own self-direction and although the judge has directed herself appropriately in the paragraphs cited above, I am satisfied that the judge has not gone on to deal with these separate legal considerations set out above. I refer to the Straszweski principles in this respect which are to be found in that decision at [22] where it is said:
“However, the court also emphasised that even then deportation will not be justified unless the conduct of the person concerned represents a genuine, present threat affecting one of the fundamental interests of society, which normally implies that he has a propensity to act in the same way in the future (see paragraphs 17-30)”.
29. And at [25] where it is said:
“That requires an evaluation to be made of the likelihood that the person concerned will offend again and what the consequences are likely to be if he does. In addition, the need for the conduct of the person concerned to represent a "sufficiently serious" threat to one of the fundamental interests of society requires the decision-maker to balance the risk of future harm against the need to give effect to the right of free movement”.
30. At no point in the decision does the judge make specific findings on whether the appellant has a propensity to act in the same way in the future and what the consequences would be if he does reoffend.
31. What the judge does is set out the evidence including the nature of the offence, the judge’s sentencing remarks, the fact that the appellant is considered by OASys to have a low risk of reoffending, a letter from probation stating that he is at low risk of reoffending and low risk of harm. The judge then makes adverse credibility findings about the appellant at [21] because of his failure to admit using aliases in the UK including the identity of his flatmate. The judge found that the appellant was not giving a full and frank account.
32. Then at [23] the judge states:
“I find on the basis of the conduct of the appellant before me, and as described in the OASys report and sentencing remarks and the latest probation letter that the appellant does present as a genuine, present and sufficiently serious threat to society as per the Regulations”.
33. There is no unequivocal finding that the appellant has a propensity to reoffend in the same way. I am not satisfied that the judge has in this paragraph adequately identified the nature of the threat which would in principle justify the appellant’s deportation, on the risk of the threat materialising in the future and whether the degree of risk and level of threat pass the necessary high threshold. I am satisfied that the judge has misapplied the law in this respect. Without a clear finding on the appellant’s propensity to reoffend it is impossible for the judge to assess the threat. This is a central issue in the appeal. I do not agree with Mr Lindsay that the reasoning is “tolerably clear”.
34. Further the risk has to be sufficiently serious which is a high test. Although in general it is not helpful to refer to the facts of another appeal, I bear in mind [31] of Staszweski where Lord Justice Moore-Bick states the following in respect of Mr Kersys who had been convicted, rather like this appellant, of offences of fraud. (He and his wife used bank cards belonging to a vulnerable elderly neighbour whom they had befriended in order to obtain sums of money totalling about £112,000 from his bank account after his death). The sentencing judge described this as " a mean-spirited and nasty piece of offending", a sentiment Lord Justice Moore Bick states “no doubt most people would share”.
“For the reasons given earlier, I do not think that public revulsion at the offender's conduct has any part to play in deciding whether there are sufficiently serious grounds of public policy to justify his deportation, save in exceptional cases of a kind in which failure to remove the offender might itself tend to undermine confidence in the state's ability to administer justice. This case falls far short of that. However, even if it were a factor to be taken into account in this case, I find it impossible to accept that a rational tribunal could have come to any other conclusion. Although the offences for which Mr. Kersys was sent to prison did not represent his first brush with the law, his previous convictions must have been of a modest kind, since the judge when passing sentence was content to treat him as a man of good character. Moreover, a report made by NOMS concluded that he posed a low risk of further offending and a low risk of causing harm to the public. In those circumstances I find it difficult to understand how behaviour, although properly described as "mean-spirited", "nasty" and "despicable", could possibly be said to represent a genuine, present and sufficiently serious threat to one of the fundamental interests of society to justify overriding the right of free movement on which the permanent right of residence rests”.
35. The judge’s analysis does not appear to reflect the fact that these provisions should be applied restrictively in the context of free movement.
36. I move on to the reasons challenge. Mr Lindsay’s submission is that it is obvious from the decision that what the judge meant (although this was implied rather than unequivocally stated) was that the appellant did have a propensity to reoffend, and the judge was entitled to come to this conclusion notwithstanding the expert evidence because of his lack of credibility. This was adequately reasoned. The judge found that the appellant was willing to lie to improve his immigration situation and was not telling the truth about his aliases and the judge was therefore entitled to find that the OAsys report was flawed because it relied on the appellant’s assertion that he would not repeat his offending.
37. My problem with Mr Lindsay’s argument is that Mr Lindsay is reading into the decision what he believed the judge’s reasoning to be. The reasoning is not set out in this way. I repeat that the reasoning is not tolerably clear.
38. Further, as I have already stated I am not satisfied for the reasons above that the judge addressed the separate considerations of whether the appellant has a propensity to reoffend and the harm that would ensue if he did offend. Secondly and importantly, the judge had unequivocal evidence before her that from the OASys report and the Probation Services that there was a low risk of reoffending. The risk of reoffending was an important and weighty factor in the assessment of whether the appellant’s deportation is justified on serious grounds of public policy.
39. If the judge intended to find that there was a higher risk of reoffending than indicated in the evidence before her, she needed to explain why her view differed from that of the experts. It is not in my view possible to discern from the decision whether the judge’s view differed and if it did, what reasons the judge had for departing from the expert opinion other than the judge’s dim view of the appellant’s past conduct and his lack of honesty in his evidence about his use of previous aliases.
40. The professionals who addressed his risk are professionals well versed in carrying out such assessments and have to carefully take into account all of the relevant factors before reaching their conclusions. The OASys assessment carried out in August 2018 found there to be 8% chance of reoffending in the first year and 15% in the second year which is at the lower end of the low-risk band. The writer of the OASys report was also aware that the appellant had used an alias. Further and in particular the Probation Service officer who was the current offender manager for the appellant wrote a letter on 16 October 2019 in which he explained that he had been working with the appellant since February 2019 ie over a period of 9 months when the appellant was in the community having been released from custody on licence on November 2018. The evidence was that this was his first conviction, that he has complied with 20 out of 20 supervision meetings and that his current risk is assessed to be low in terms of risk of harm he poses to the public and risk of reoffending. There is no explanation given as to why the judge rejects this evidence, apart from the reference to the lack of credibility. This evidence was central to the assessment of risk.
41. Although the appeal court should be slow to find that adequate reasons have not been given where the reasons are not as clear as they should be, in the circumstances of this appeal which involves the deportation of an EEA national with 2 British citizen children, I am not satisfied that the judge gave adequate reasons for rejecting this evidence (if that is what the judge meant to do). I am further satisfied that it would be irrational for the judge to reject the evidence that the appellant was at a low risk of reoffending purely on the basis of the appellant’s lack of credibility in his oral evidence. It does not necessarily or inevitably logically follow that because the appellant gave evasive or dishonest evidence about his previous use of aliases that that he is at risk of reoffending in the same way in the future.
42. Further the judge did not make specific findings on those factors which might mitigate against the appellant committing further offences such as his previous good character, compliance with probation and lack of further offending.
43. I am satisfied that the decision is vitiated by material errors of law to the extent that it should be set aside in its entirety. Since I am satisfied that grounds 1 to 3 of the original grounds as amplified are made out, I do not go onto consider any further grounds.
44. I also note that the ground as pleaded in the judicial review application in relation to schedule 1 para. 7(h) of the EEA Regulations 2016 was not pleaded in the original grounds and I do not give permission for the grounds to be amended to incorporate this new ground. Although the respondent did not make any submissions in respect of it at the High Court, this ground is completely new being pleaded for the first time in the judicial review proceedings. In my view it is fair and in the interests of justice to refuse to allow the appellant to amend the grounds in view of the fact that the appeal succeeds under alternative grounds in any event.
45. The grounds also challenge the judge’s approach to the proportionality of the decision. It seems to me that this issue is a moot point. The substantive decision as to whether the deportation is justified to the relevant threshold is flawed by material error and is set aside. The original appeal was heard over two and a half years ago and the proportionality of the decision (if the necessary threshold is reached) will need to be evaluated in light of the family’s current circumstances as the children for instance are now aged 12/13 and 13/14 and the family circumstances will have changed. There will need to be a fresh proportionality assessment.
Disposal
46. Mr Chiraco at the outset invited me to re-make the appeal on the evidence before me. Mr Lindsay submitted that the Secretary of State would want an opportunity to cross examine the appellant. He also submitted that I should preserve the unchallenged findings including the finding that the appellant was dishonest about his aliases.
47. In my view the fundamental error in this appeal is the failure to make findings at all on the material issue of whether the appellant has a propensity to offend in the same way, the nature of the threat and whether the threshold has been reached. It is my view therefore that the appeal has to be heard de novo by a differently constituted Tribunal in light of the evidence before that Tribunal. I therefore do not preserve any findings.
Decision
48. The decision of the First-tier Tribunal involved the making of an error of law.
49. The decision is set aside in its entirely with no findings preserved.
50. The appeal is to be remitted to be heard de novo by the First-tier Tribunal by a judge other than Judge Davidge.
Direction Regarding Anonymity
51. The First-tier Tribunal judge did not make an anonymity direction. There was no application for an anonymity direction. I observe that the starting point for consideration of such a direction in this Chamber of the Upper Tribunal, as in all courts and tribunals, is open justice. The principle of open justice is fundamental to the common law. The rationale for this is to protect the rights of the parties and also to maintain public confidence in the administration of justice. Revelation of the identity of the parties is an important part of open justice: Re: Guardian News & Media Ltd [2010] UKSC 1; [2010] 2 AC 697.
52. Mr Ola’s criminal trial was public, and I can identify no individual who would be prejudiced by him being identified in this appeal. I see no reason to denigrate from the principle of open justice.

Signed R J Owens Date 27 April 2022

Upper Tribunal Judge Owens