Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: DA/00965/2012

THE IMMIGRATION ACTS

Heard at Nottingham
Determination Promulgated
on 18th June 2013
on 19th June 2013

Before

UPPER TRIBUNAL JUDGE HANSON

Between

ALDIS KRUMINS
Appellant
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: Mr Vokes instructed by Duncan Lewis & Co Solicitors.
For the Respondent: Mrs Heath Senior Home Office Presenting Officer.

DETERMINATION AND REASONS

1. This is an appeal against a determination of a panel of the First-tier Tribunal (hereinafter referred to as ‘the Panel’) who dismissed the appellant’s appeal against the decision dated 2nd July 2012 to deport him from the United Kingdom under the provisions of the Immigration (European Economic Area) Regulations 2006.

2. The appellant is a Latvian national born on 26th August 1965. On 18th June 2012 he was convicted of conspiracy to defraud and sentenced to two years imprisonment. The Sentencing Judge stated:

You, Krumins, fall to be sentenced only in respect of count 6. In my judgment, you fall into a different category. On the evidence, you were less involved. The value of the goods that you obtained was just over £60,000. I take into account the pleas in your case and the limited involvement in your case but nonetheless, there must be, in my judgment, an immediate sentence of custody and the appropriate term in your case is two years‘ imprisonment. You may sit down.

3. The appellant was assessed in the NOMS report dated 31st July 2012 as posing a low risk of serious harm in the future. It is noted he has no previous convictions in the UK or abroad. What are stated to be other significant risk issues by the author of the report are set out by the Panel in paragraph 31 of the determination, such as his ability to network with others and what is described as a severe debt problem. The appellant is also stated to have learning difficulties which may indicate he may remain vulnerable to manipulation by others for their own wider gain.

4. In paragraph 55 the Panel note it is accepted the appellant has not resided in the United Kingdom in accordance with the Regulations for a continuous period of over five years and he does not have a right of permanent residence. The Panel make the correct legal self direction in relation to the test to be applied which is the lower level, namely that deportation is justified on grounds of public policy or public security. In paragraphs 61 to 63 they state:

61. We have considered the appellants offending history as a guide to his possible future conduct. We have given consideration as to whether the appellant has demonstrated a propensity to re-offend and whether he represents a genuine and present and sufficiently serious threat to the public to justify his deportation. We find that he has committed a serious criminal offence in the past and we are persuaded that it has been established that he is a credible risk of further serious criminal activities.

62. We find the seriousness of the crime committed by the appellant falls within the crimes featured in cases like Marchon and Schmelz [2003] EWCA Civ 29 where the Court of Appeal held that the deportation of European nationals was justified even in the absence of any propensity to re-offend, and which in any event pre-dates the 2006 Regulations. We find that the appellant does represent a genuine, present and sufficiently serious threat to public policy, public security or public health such as to justify his deportation.

63. We find that this appellant is a European citizen who has taken advantage of freedom of movement under the Treaty to re-locate from Latvia to the United Kingdom. We find that the appellant to have lawfully lived freely in the country [until his detention] and as such the respondent needs to establish the test for his removal. We find that the appellant’s actual risk on the grounds of public policy, public security or public health is so compelling that it justifies the exceptional course of removing him from the United Kingdom. We find that the respondent has established the appellant’s conduct satisfies the applicable public policy criterion for deportation of this appellant.

5. The appeal was therefore dismissed under the Regulations.

Discussion

Error of law finding

6. The grounds seeking permission to appeal raise a number of issues, one of which is that the Marchon case pre-dates the Regulations and so should not be relied upon. In some cases the fact a judgment pre-dates subsequent legislative changes is not determinative provided the legal principle upon which the decision in the older case is based remains good law. It is correct that in both Marchon and R (Schmeiz) v IAT [2004] EWCA Civ 29 the Court of Appeal indicated that the seriousness of the offence may itself justify removal but this appears to be contrary to the provisions contained in the 2006 Regulations. This is a view supported by the case relied upon by the Panel in paragraph 60 of the determination, Commission v the Netherlands Case C-50/06, in which the European Court of Justice clearly were of the opinion that the evidence, including that of past criminality, must establish a future risk to society for any removal to be justified. I find the panel failed to examine this element of the case in sufficient detail and the fact they appear to have believed the seriousness of the offence alone may justify deportation is arguable wrong in law, without more.

7. I accept that the Panel do say in the above paragraphs that the appellant does represent a genuine, present and sufficiently serious threat but fail to adequately explain why.

8. In relation to the other factors identified in the NOMS report, and paragraph 31 of the determination, Mr Vokes referred to the appellant’s witness statement in which he says he was only £800 in debt. This is not substantial. Mrs Heath was unable to refer me to any evidence supporting the claim his debts were substantial. The Panel failed to make specific findings on this issue to justify a conclusion the burden or proving the necessary degree of risk was met. In relation to the claim the fraudulent operation could start up at any time; this is theoretically correct but the co-accused who had greater culpability and received longer sentences are still in prison and may be deported themselves. The fact something could happen does not necessarily mean it will. The Panel failed to analyse this issue and give adequate findings for what must have been their conclusion that the appellant will offend again in the future. The assessment of reoffending was low with a 6% risk within one year and 12% within two years in the NOMS report.

9. I find the Panel have erred in law such that the determination must be set aside in (a) failing to apply the correct legal test when indicating the offence in isolation could justify deportation and (b) failing to make findings on material matters and in failing to give adequate reasons for their finding the required test was met, based upon the issue of any future risk to society.

Remaking the decision

10. The facts are agreed and preserved. I proceed to remake the decision by allowing the appeal under the EEA Regulations.

11. In MG and VC (Ireland) [2006] UKAIT 00053 the Tribunal held that the propensity to re-offend was crucial. This accords with the view of the ECJ in Commission v Netherlands. The appellant has been assessed as posing a low risk of harm in the future, it has not been proved by the respondent that his financial situation is serious at as at the date of the hearing such as to give him an overwhelming motive to commit further offences, the sentencing judge clearly found the appellant less culpable than his co-accused, and there is no evidence his intellectual abilities mean there is a likelihood he will offend again. Even if mislead in the past he has been in prison and must be aware that future criminality will increase the risk of his deportation.

12. The burden is upon the respondent to prove the necessary test is met. On the facts of this case this burden has not been discharged. Mrs Heath relied upon the refusal letters but could not say much more. I find it has not been shown that the appellant represents a future threat to society on the evidence and so, on this basis and the fact that without such a finding his removal cannot be proportionate under EU law, the appeal must be allowed.

Decision

13. The First-tier Tribunal Judge materially erred in law. I set aside the decision of the original Judge. I remake the decision as follows. This appeal is allowed.

Anonymity.

14. The First-tier Tribunal did not make an order pursuant to rule 45(4)(i) of the Asylum and Immigration Tribunal (Procedure) Rules 2005.

Signed……………………………………………….
Upper Tribunal Judge Hanson

Dated the 18th June 2013