Tribunal decisions

The decision

IAC-FH-GJ-nl-V1

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: DA/00825/2012

THE IMMIGRATION ACTS

Heard at Field House
Determination Promulgated
On 25 June 2013, 6 August 2013
and 12 September 2013
On 24 December 2013
Prepared on 9 December 2013

Before

UPPER TRIBUNAL JUDGE CRAIG

Between

Ageell Chiyamalendran
Appellant
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: Ms Easty, Counsel, instructed by Duncan Lewis and Co Solicitors (Harrow Office)
For the Respondent: Respectively, Mr Tufan, Mr Allan and Mr Deller, Home Office Presenting Officers

DETERMINATION AND REASONS
1. The appellant is a German national, who was born on 8 August 1992. He claims to have arrived in this country in 2006, although it was the respondent’s case that he had not established that he had been in this country before 2007. His family had arrived in the UK in or about 2006. The appellant went to school in England.
2. The appellant has committed a number of criminal offences. On 10 December 2010 he was convicted of battery at Harrow Magistrates’ Court. A community order was made with a curfew requirement for ten weeks with electronic tagging and the appellant was required to participate in a thinking skills program. He also had to pay compensation and costs. Then on 21 March 2012, at Northwest London Magistrates’ Court he was convicted again of battery, for which on 14 April 2012, he was sentenced to 42 days in a young offenders’ institution, and a restraining order was issued against him, in order to protect his victim from harassment by him.
3. On 6 August 2012, the appellant was convicted of intimidating a witness who had made a complaint about him, which offence was committed whilst he was on bail. For this offence, he was sentenced to twelve months’ imprisonment in a young offenders’ institution.
4. On 31 August 2012, the respondent notified the appellant that she was considering whether his deportation was justified on grounds of public policy and requested reasons why he should not be deported from the United Kingdom. Following consideration of those representations which were made, on 15 October 2012 the respondent made a decision to deport the appellant to Germany. The respondent’s reasons are set out in her “reasons for deportation” dated 15 October 2012, in the course of which it was stated that the respondent considered that the appellant had not acquired the right of permanent residence in the United Kingdom, because it had not been established that he had been residing in the UK in accordance with the Immigration (EEA) Regulations 2006 for a continuous period of five years. Accordingly, the respondent considered that she did not have to establish that his deportation was justified on serious grounds of public policy or public security.
5. The appellant appealed against this decision and his appeal was heard before a panel of the First-tier Tribunal consisting of First-tier Tribunal Judge Traynor and Mr G F Sandall, sitting at Taylor House on 18 February 2013.
6. In a determination promulgated on 26 April 2013, the panel dismissed the appellant’s appeal. In the course of its determination, the panel found that the appellant had not established that his family had been present in the UK until March 2007, and that because by the date of decision the appellant had already spent 42 days in a young offenders’ institution, he had not established a continuous and unbroken presence in this country for five years, and that for this reason the respondent did not have to establish that there were serious grounds of public policy or public security in order to justify her decision to deport him.
7. The appellant appealed against this decision and was granted permission to appeal by First-tier Tribunal Pullig on 15 May 2013. When giving his reasons for granting permission, Judge Pullig stated as follows:
“…
3. At paragraph 66 of the determination the panel found that the earliest date of which there is evidence of the appellant’s presence was 2 March 2007. The respondent’s decision is dated 15 October 2012. At paragraph 67 of the determination, the panel found that the appellant had already spent 42 years in a young offenders’ institution, as a consequence had not established five years’ continuous residence. As the grounds state, that sentence was imposed on 24 April 2012, by which time the appellant would have already completed five years’ residence in this country, which appears to have been continuous.
4. I find that this amounts to an arguable error of law as it results in the panel applying the wrong level of protection against removal. For that reason alone permission [must be] granted and all grounds are arguable.”
8. The hearing before me commenced on 25 June 2013, at which hearing the appellant was represented by Ms Easty (who has continued to represent the appellant through the proceedings) and the respondent was represented by Mr Tufan. As I recorded following this hearing, on behalf of the respondent Mr Tufan accepted that the panel had not addressed the question of whether or not the appellant had been exercising treaty rights in this country during the period he had resided here or whether he was a family member of a qualified person who had been exercising such treaty rights. He accepted that the panel had found, wrongly, that he had not even been in this country for five years before going to prison, whereas on any view he had in fact been present for more than five years.
9. As I stated during the hearing on that date, and repeat in this determination, that was a material error of law, because in fact, on its own finding, the panel had accepted that the appellant had been in this country at least from 2 March 2007, which was more than five years before he was sentenced in April 2012. The panel had not then gone on to consider whether during that period the appellant had either been exercising treaty rights or been the family member of a qualified person who had been exercising treaty rights, which it needed to do in order to determine whether or not the respondent needed to establish that there were “serious grounds of public policy or security” requiring his removal. As the panel had not determined this issue, but had considered the appeal only on the basis that the appellant’s removal was justified on grounds (but not serious grounds) of public policy, public security or public health, its decision must be set aside and remade.
10. Following my decision that the panel’s determination had contained a material error of law such that its decision must be remade, I proceeded to hear evidence with a view to re-making the decision. I heard evidence from the appellant and his father which was directed primarily to the issue of whether or not the appellant’s father had been exercising treaty rights in this country for over five years, during a period when the appellant had been living with him as a family member, but before he went to prison. During the course of this hearing, the appellant’s father claimed to have been seeking work since August 2006 and to have obtained employment as a minicab driver in December 2007. He claimed that he had various documents at his home which could support this claim.
11. Because there was in any event insufficient court time available to conclude the hearing without a further adjournment, I adjourned the hearing part-heard until 6 August 2013, and gave directions for the service of further documents by the appellant. I recorded that Mr Tufan was unable to state whether or not he would be able to attend at the resumed hearing on behalf of the respondent, and, as will be apparent below, in the event he was not.
12. The hearing resumed on 6 August 2012, on which date the respondent was now represented by Mr Allan. On this date I heard further evidence from the appellant and his mother and father, all of whom were cross-examined. Although the evidence was concluded, there was insufficient time available for the Tribunal to hear submissions and so the hearing had to be adjourned yet again and I gave further directions giving permission to the appellant to adduce further evidence as appropriate, but in particular with regard to documents relating to his education, which was an issue that had arisen during the hearing. It was felt that it might be possible to establish when the appellant had first arrived in this country more accurately if relevant school reports could be made available.
13. The hearing then resumed again on 12 September 2013, at which hearing, unfortunately, Mr Allan could not be present, because of other commitments. On this date, the respondent was represented by Mr Deller.
14. I made a contemporaneous note of the evidence and submissions during all the hearings, in which I attempted to set out everything which was said during the course of the hearing. As these notes are contained in the Records of Proceedings, I shall not set out below everything which was said, but only such part of the evidence and submissions as are necessary for the purposes of this determination. However, I have had regard to all the evidence I heard, and to everything said to me on behalf of the parties, as well as to all the documents contained within the file, whether or not the same is specifically referred to below.
The Immigration (European Economic Area) Regulations 2006
15. The relevant Regulations provide as follows:
“Exclusion and removal from the United Kingdom
19…(3) Subject to paragraphs (4) and (5) [which are not relevant in this case], an EEA national who has entered the United Kingdom or the family member of such a national who has entered the United Kingdom may be removed if –
(a) that person does not have or ceases to have a right to reside under these Regulations; or
(b) the Secretary of State has decided that the person’s removal is justified on grounds of public policy, public security or public health in accordance with Regulation 21….
Decisions taken on public policy, public security and public health grounds
21.- (1) In this Regulation a “relevant decision” means an EEA decision taken on the grounds of public policy, public security or public health.
(2) A relevant decision may not be taken to serve economic end.
(3) A relevant decision may not be taken in respect of a person with a permanent right of residence under Regulation 15 except on serious grounds of public policy or public security…..
(5) Where a relevant decision is taken on grounds of public policy or public security it shall, in addition to complying with the preceding paragraphs of this Regulation, be taken in accordance with the following principles –
(a) the decision must comply with the principle of proportionality;
(b) the decision must be based exclusively on the personal conduct of the person concerned;
(c) the personal conduct of the person concerned must represent a genuine, present and sufficiently serious threat affecting one of the fundamental interests of society;
(d) matters isolated from the particulars of the case or which relate to considerations of general prevention do not justify the decision;
(e) a person’s previous criminal convictions do not in themselves justify the decision.
(6) Before taking the relevant decision on the grounds of public policy or public security in relation to the person who is resident in the United Kingdom the decision maker must take account of considerations such as the age, state of health, family and economic situation of the person, the person’s length of residence in the United Kingdom, the person’s social and cultural integration into the United Kingdom and the extent of the person’s links with his country of origin…”.
16. It is common ground that if this appellant had been resident in this country for a continuous period of five years or more as the family member of his father’s household, at a time when his father was exercising treaty rights, because he would have been resident in this country in accordance with these Regulations for a continuous period of over five years he would have acquired the right of permanent residence in the United Kingdom and could thus only be deported on “serious” grounds of public policy or public security.

Definition of Qualified Person
17. Whether or not the appellant’s father was a “qualified person” for the purposes of these Regulations during the period the appellant is found to have been living as part of his household is governed by Regulation 6, the relevant parts of which provide as follows:
“ “Qualified Person”
6-(1) In these Regulations, “qualified person” means a person who is an EEA national and in the United Kingdom as –
(a) a jobseeker;
(b) a worker;
(c) a self-employed person … [the remaining sub-Sections are not relevant in this case]...
(4) For the purpose of (1)(a), “jobseeker” means a person who enters the United Kingdom in order to seek employment and can provide evidence that he is seeking employment and has a genuine chance of being engaged.”

Preliminary Issue
18. Much of the evidence was directed towards establishing first whether or not this appellant had been residing in his father’s household for a continuous period of five years and secondly whether, if he had, his father was himself a qualified person within the meaning of the Regulations during that period. If he was, then it is accepted that the appellant would have acquired a right of permanent residence.
19. In the course of making his submissions on behalf of the respondent, Mr Deller stated that although he could not make a formal concession, he would accept that if the appellant was found to have acquired a right of permanent residence, the respondent would have “difficulties” in maintaining that serious grounds existed justifying his deportation on the facts in this case, although this would be a matter for the Tribunal to determine. It was also accepted that the Tribunal could not have regard to factors which were not personal to this appellant.
20. Mr Deller accepted that the key question was whether prior to the decision to remove him, the appellant had resided in the UK in accordance with the Regulations and the Directive for a continuous period of five years. Clearly if he had, he had not lost his right to permanent residence. So the key question in this case was whether or not he had had five years’ continuous residence, as a family member of a qualified person, before he went to prison.
21. On behalf of the appellant, Ms Easty referred the Tribunal to the evidence which had been given on behalf of the appellant, in particular from his father, and to the evidence of tax credits dated from October 2008 onwards. Insofar as there was not evidence relating to an earlier period, the father’s evidence, contained in his supplementary statement, was that he was not now able to obtain evidence from the Job Centre that he had been seeking employment because they had destroyed all documents going back to that period. However, there was evidence before the Tribunal from the appellant’s father which showed that he had been a genuine jobseeker at that time.
22. So far as this appellant was concerned, all the evidence showed that he had come over with his family at the end of 2006 or beginning of 2007, and certainly before March 2007.
23. So far as the appellant’s offending was concerned, the appellant accepted he had made a big mistake and that he had behaved very badly, but he was supported by his family. If he was returned to Germany, it was not clear that his rehabilitation would continue, as he had no family members to give him support in that country. Nor was it suggested he could join any programmes to improve his prospects in Germany.

Discussion
24. I accept the evidence of the appellant’s father that he came to this country in or around the end of 2006 in order primarily to seek work so that he could bring up his family in this country. Although the evidence is not entirely clear, I am satisfied that this is so on the balance of probabilities, having regard to the documents contained within the file. In particular, I have regard to the “certificate of topographical skills assessment” for a “London private hire driver”, issued by the “LPHCA”, who “are accredited by the Public Carriage Office on behalf of Transport for London to act as topographical skills assessor under accreditation number 310/20”, which states that on 5 February 2007, the appellant’s father “reached the required standard to be licensed as a London private hire driver under the terms set out in Section 13(3) of the Private Hire Vehicles (London) Act 1998”. This document is consistent with the appellant’s father’s evidence that at that time he was seeking work as a minicab driver. I am satisfied that there was a reasonable prospect of his obtaining work at that time, certainly within the Sri Lankan immigrant community (the appellant’s family being of Sri Lankan descent) but that, in order to improve his chances of obtaining employment, the appellant’s father underwent a course in English. I accept his evidence that he had claimed jobseeker’s allowance during this period, and note that at page 20 of the appellant’s original bundle is exhibited a letter from Jobcentre Plus confirming that that body was unable to confirm that he had claimed jobseeker’s allowance for this period because it routinely destroys records that are over fourteen months old in accordance with the Data Protection Act. I consider it reasonable for a jobseeker to improve his language ability, and accept that the appellant’s father’s attempts to obtain work from the time he arrived in this country were genuine and that he had had at least a “genuine chance of being engaged” as required in order to be defined as a “qualified person” pursuant to Regulation 6(4) of the 2006 Regulations.
25. In order to be satisfied that this appellant had acquired the right of permanent residence, I have to be satisfied also, on the balance of probabilities, that he had been a family member of his father’s household for a period of at least five years while his father was exercising treaty rights. If he was present in this country, as part of his father’s household, from before March 2007, as claimed, then in light of my finding that from before this period his father was exercising treaty rights, the appellant would have acquired the right of permanent residence. I am so satisfied. I have had particular regard to the annual report obtained from the appellant’s school in December 2007, referring to the previous term’s work. Although no school report has been submitted in relation to any earlier period, and in particular in relation to the previous year, I am satisfied from what is said within this report, that this was not the first term in which the appellant had been going to this school. In particular, I note the observation by the appellant’s personal tutor that “over the course of his time at Rooks Heath College [the appellant] has matured into a friendly young man although his lack of attendance at college and his poor punctuality have greatly hindered his progress”. In my judgment, this comment is unlikely to have been made in respect of a pupil who had only just started attending the college, but is more likely to have been made in respect of a student who had been attending the previous year as well. Similarly, Miss M Berry, the appellant’s citizenship tutor comments that the appellant “has not worked hard enough this year”, which again suggests that this was not his first year at the college. Ms R Ahuja, the appellant’s science teacher, comments that the appellant’s attendance “has been irregular this term”.
26. It is even clearer from the comment of Mr Edwardson, who taught “DT Graphic Products” that the appellant had been attending the college during the previous year, because he says in terms that “in the summer term of year 10 [this is a report for year 11] [the appellant] selected the formula 1 project for his major piece of coursework”.
27. Having considered all the evidence in the round, I am satisfied that this appellant came to this country when he says he did, and accordingly that before being taken into custody, he had acquired a right of permanent residence in this country. It follows that the decision to deport him is only sustainable if it can be justified on “serious grounds of public policy or public security”.
28. In my judgment, it cannot be. Mr Deller was candid enough to accept, without making a formal concession on this point, that there would be difficulties in maintaining that serious grounds exist justifying deportation on the facts of this case, and in my judgment he was right to do so. Although, clearly, the offence of which this appellant was convicted was a serious once, had he not been an EEA national, the sentence imposed would have only just been at the level which would have triggered the automatic deportation provisions. I have also had regard to the evidence given by the appellant, that he is genuinely remorseful, which I accept. I must also have regard to the provisions within the Regulations, set out above, whereby I must not (unlike in the case of a non-EEA national) take account of considerations of general prevention.
29. Insofar as it is necessary for me to do so, because I am taking a “relevant decision on the grounds of public policy or public security in relation to a person who is resident in the United Kingdom”, I also take into account the provisions set out in Regulation 21(5) and (6). For the reasons I have already given, I would not regard the deportation of this EEA national, who has acquired a right of permanent residence in this country, to be proportionate. Although he has been assessed initially as presenting a medium risk of re-offending, as I have already indicated, I was impressed with the genuineness of his remorse and consider his risk of re-offending to be lower. Moreover, the facts that he is still a relatively young man, who is still in the course of maturing and that he has no or very little family in Germany (being of Sri Lankan origin) with his close family, who are providing support in his attempts to reform, being in this country, and that he has clearly integrated into the United Kingdom to a substantial extent (for example, his English is perfect) are all factors which weigh against his removal being proportionate and reinforce my finding that the deportation of this appellant cannot currently, on the specific facts of this case, be justified on serious grounds of public policy or public security.
30. It follows that this appeal must be allowed, and I so find.

Decision
I set aside the decision of the First-tier Tribunal as containing a material error of law, and substitute the following decision:
The appellant’s appeal is allowed, under the Immigration (European Economic Area) Regulations 2006.

Signed: Date: 9 December 2013

Upper Tribunal Judge Craig