Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: DA/01086/2014

THE IMMIGRATION ACTS

Heard at Field House
Decision & Reasons Promulgated
On 16 February 2016
On 7 October 2016

Before

THE HONOURABLE MR JUSTICE COLLINS
PROFESSOR JUSS

Between

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT

Appellant
and

faisal mohammad
(anonymity direction NOT MADE)

Respondent

Representation:

For the Appellant: Mr T Melvin, Home Office Presenting Officer
For the Respondent: No appearance

DECISION AND REASONS

1. This is an appeal by the Secretary of State against the decision of Judge Perry who heard the respondent's appeal against the Secretary of State's decision that he should be deported as a result of his offending behaviour.

2. He is a Danish citizen. He was born in 1993 and he came here, it seems, in August 2002. We say "it seems" because there was an issue as to the date on which he had arrived in this country. He asserted at one stage that it was in 2000 but as the judge noted, there was evidence from the Danish Embassy which confirmed that he had left Denmark on 29 March 2002 and he himself in his evidence before the judge said that he had arrived in this country in August 2002.

3. We note that in paragraph 51 of his judgment the judge said that he found that he arrived in the UK with his mother and siblings around 2001 and 2002. It seems to us from the findings made by the judge on the evidence that was before him that that is not a proper finding because, as we say, it is clear that he did not arrive before March 2002 and the evidence clearly that was finally before the judge was that it was August 2002.

4. That is of some importance because it could affect the protection that the respondent has in accordance with the Immigration (European Economic Area) Regulations 2006 because deportation under those Regulations is strictly confined.

5. The reason why the decision to deport was made was because the respondent has committed a considerable number of offences between March 2010 and March 2014. In all he has been convicted of nine offences, commencing with the most serious which was a wounding with intent to do grievous bodily harm and there have been others of possessing offensive weapons, battery and failing to comply with the requirements of a detention and training order.

6. Again, because it is material in deciding what protection he has, it is important to note the dates upon which the relevant convictions took place. The first and the most serious was on 26 March 2010 when for wounding intent to do grievous bodily harm he received a detention and training order for two years.

7. Then on 20 December 2011 he received three months for failing to comply with the detention and training order and finally so far as custodial sentences are concerned, on 7 May 2013 for conspiracy and theft he received a sentence of six months in a young offender's institution.

8. Thus the total detention to which he was sentenced was two years and nine months and he would have served in prison half of that period.

9. In addition he was out of the country when at the age of 13 because he had been expelled from school for bad behaviour he was sent to Tanzania by his mother to stay with his maternal aunt. The judge in paragraph 3 of his decision says that that was for six months, albeit it would seem there was some dispute about that and the respondent had indicated that it was only for four months.

10. However that was clearly the history that is recorded. However later in his decision the judge says that it was four months. It is a little difficult to follow why six months becomes four months with no reasoning why that should be in between.

11. However the final decision of the judge was that, as he is an EEA national, if he has resided in the UK for a continuous period of at least ten years prior to the deportation decision he can only be deported on imperative grounds of public security. That is the key finding which is under attack by the Secretary of State in this appeal.

12. It is important to bear in mind what the Regulations provide in deciding whether the ten year applies. The starting point is paragraph 15 of the 2006 Regulations which provides so far as material

"(1) The following person shall acquire the right to reside in the United Kingdom permanently.

(a) an EEA national who has resided in the United Kingdom in accordance with these Regulations for a continuous period of five years;"

It is clear that that means lawful residence and periods in prison do not count towards that residence.

13. One then goes to paragraph 19 which deals with removal from the United Kingdom and provides by 19(1B) which provides

"If the Secretary of State considers that the exclusion of an EEA national or the family member of an EEA national is justified on the grounds of public policy, public security or pubic health in accordance with Regulation 21 he may make a removal order",

But the point so far as removal is concerned is dealt with by 15(3) which provides so far as material that removal may be required if the Secretary of State has decided that the person's removal is justified on grounds of public policy in accordance with Regulation 21.

14. One then goes to Regulation 21 which provides again so far as material by subparagraph

"(iii) 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.

(iv) a relevant decision may not be taken except on imperative grounds of public security in respect of an EEA national who

(a) has resided in the United Kingdom for a continuous period of at least ten years prior to the relevant decision."

15. Thus as can be seen so far as the ten years is concerned, it is necessary to work back from the date of the decision in question and decide whether there has been a continuous period of at least ten years prior to that decision, the decision in this case having been made in May 2014.

16. Thus one goes back prima facie to May 2004 but one excludes the period when he was in Tanzania, which on the judge's indication was six months, and the periods when he was in custody which amount to at least one year four-and-a-half months. That of course takes it back further and one as to bear in mind that the period has to be continuous prior to the decision and thus one has to have in mind that there was no continuous lawful residence for a period of ten years because what one cannot do is to look at various periods and add them together to make the necessary ten year period because, as we say, one has to work back from the date of the removal decision.

17. Mr Melvin has submitted that he does not meet the five year provision because he says that he has not resided in the United Kingdom for a continuous period of five years and one does not work backwards in deciding the five year period.

18. Suffice it to say that in our view it is not necessary for us to reach a final determination as to whether that is or is not correct because the question that we have to ask ourselves is whether there are serious grounds of public policy so far as this particular respondent is concerned. We are satisfied, looking at his record and the history of his offending and behaviour, that the Secretary of State was entitled and indeed correct to take the view that she did and we are equally satisfied that there are in this case serious grounds of public policy which justify the removal of this respondent.

19. The conclusions of the judge cannot in our view be upheld essentially for the reasons that we have already given, because it is not a case of imperative grounds, it is not a case of ten years and indeed the judge says in his final paragraph "I therefore find that the appellant as resided in the UK for a continuous period of at least ten years."

20. What he does not say and what he should have made clear was that it was a case of working back from the decision in question, and that is not an exercise that he has properly undertaken. Nor having regard to the times in prison was there any continuous period of ten years.

21. The respondent has not attended this appeal and there has been a notification from the solicitors who represented him before the First-tier Judge and who were responsible for the grounds of appeal that they are no longer instructed. We have no doubt that the respondent was properly notified of this appeal and we see in those circumstances no reason why it would be adjourned.

Notice of Decision

22. We therefore decided this appeal in accordance with Rule 38 which entitles us so to do. In the circumstances this appeal will be allowed and the decision of the Secretary of State that the respondent be removed will stand.

23. No anonymity direction is made.

Signed Date: 25th February 2016

Mr Justice Collins