Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: DA/01185/2012

THE IMMIGRATION ACTS

Heard at Field House
Determination Promulgated
On 31May 2013
On 20 June 2013

Before

UPPER TRIBUNAL JUDGE ESHUN

Between

mr andrej sivak

Appellant
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT

Respondent

Representation:

For the Appellant: Miss S Goh, Counsel, instructed by Forest Solicitors
For the Respondent: Mr T Melvin, Home Office Presenting Officer

DETERMINATION AND REASONS

1. The appellant is a Roma citizen of the Czech Republic, born on 10 February 1989. He has been granted permission to appeal the determination of First-tier Tribunal Judge Jhirad and Mr A J Cragg, CMG JP dismissing his appeal against the respondent’s decision made on 26 November 2012 to make a deportation order against him in accordance with Regulation 21 of the Immigration (EEA) Regulations 2006.

2. The appellant entered the United Kingdom on 6 March 2000 with his family. They claimed asylum at port on arrival. The asylum application was refused on 27 March 2000. The appeal was dismissed on 3 August 2000 and leave to appeal to the Tribunal was refused on 14 August 2000. A second application was made by the appellant’s mother on 25 September 2000, with the appellant as a dependant. The application was refused on 5 October 2000 and the appeal was dismissed on 9 May 2002.

3. On 27 April 2006, the appellant and his family were granted indefinite leave to remain under the family ILR exercise.

4. On 27 September 2010 the appellant was convicted at Basildon Crown Court of possession with intent to supply controlled drugs. He was sentenced to sixteen months’ imprisonment which was suspended for eighteen months.

5. On 5 March 2012 the appellant was convicted at Basildon Crown Court of supplying a controlled class A drug. On 16 April 2012 he was sentenced to sixteen months’ imprisonment. A further four months from his original conviction on 27 September 2010 was added. The appellant was sentenced to a total of twenty months’ imprisonment. There is no record of him appealing against the conviction or sentence.

6. The appellant was served with a liability to deportation letter and questionnaire on 25 May 2012 which he completed and returned. The appellant advised that he had been in the UK since 2000 and also stated that he came to the UK for a better life and because of racism. An asylum interview was requested as the appellant has raised racism issues and fear to his life if he returned back to Czech Republic. An asylum interview was scheduled for 9 October 2012. At the interview the appellant declared that he did not wish to claim asylum and refused to do the asylum screening interview.

7. On 8 October 2012 a letter was sent to the appellant requesting further information of residency and exercising of treaty rights. He failed to provide the information requested.

8. In view of his conviction for supplying class A drugs the respondent took the view that the appellant had a propensity to re-offend and that he presented a genuine, present and sufficiently serious threat to the public to justify his deportation.

9. The panel heard evidence from the appellant, his mother Ms Tana Sivakova, a Czech citizen born on 24 November 1966, and his girlfriend Miss Iveta Pacajova, a Czech citizen born on 18 June 1987.

10. In determining the appellant’s appeal the panel took account of the sentencing judge’s remarks. Essentially the judge gave the appellant full credit for his plea of guilty. He said that a deterrent sentence was essential because of the untold misery drugs cause to both the individuals concerned and to society at large and they cannot be ignored. This was not the first time the appellant had supplied drugs.

11. The judge stated that he had read the pre-sentence report and the recommendation therein was totally and completely unrealistic. The appellant’s crime could not come within the confines of the community order, as the appellant was in breach of a suspended sentence order and furthermore this was not a first time he had supplied drugs. The judge considered that the offence was so serious that only a custodial sentence could be justified.

12. The panel noted that the appellant had a criminal record that included not only the drug offences mentioned but other miscellaneous offences dating from 2005, which included motor vehicle theft and allied motoring offences and criminal damage to property. At the date of sentencing for the main offence the appellant was unemployed.

13. They also took account of the NOMS 1 assessment in which the offender management found that the appellant posed a medium risk of re-offending, even though posing a lower risk of harm to the public exposed through his drug dealing. In making that assessment it was acknowledged that there were identifiable indicators that he would re-offend. The appellant had stated that he was motivated to offend in order to feed his addiction to heroin and financial gain. The appellant claimed that prior to custody he was employed as a cleaner, although he was now a jobseeker.

14. The panel noted the evidence of Tana, the appellant’s mother, who said that she has problems with her back and needed the appellant to help with things around the house and generally to look after her. Prior to the appellant’s imprisonment she lived with her married daughter and grandchildren, but the former now lived half an hour’s walking distance away as her three children were her main priority, and was unable to assist her. Her youngest child is at school and is unable to carry out certain tasks. She had submitted a letter from Southend University Hospital stating that she suffered from cervical and thoracic pain and appropriate medication was prescribed. She was unemployed. The appellant’s father went to the Czech Republic for treatment of a cardio condition where he died in May 2011. The funeral took place there and the UK based family were present. Other Czech relatives residing in the Czech Republic also attended.

15. Iveta said that she and the appellant had known each other for the past seven years. She claimed they were in a genuine and subsisting relationship. She suffered a miscarriage in August/September 2011. She was employed as a cleaner but lost her job about twelve months ago and is currently a jobseeker. Both Iveta and his mother visited the appellant when he was in prison. Iveta said that if the appellant were deported to the Czech Republic she would not join him there because her family was in the UK and she believed that she and the appellant would be homeless in their country of origin.

16. The panel noted that the Czech Republic joined the EU on 1 May 2004. The appellant came to the UK in March 2000 and was not lawfully in the UK prior to the accession date because only the period when he has resided lawfully in the UK can be taken into account when determining the period of permanent residence.

17. The appellant was granted ILR on 26 May 2006. There was no evidence that he was exercising treaty rights in the UK of continuous lawful residence prior to 2006. He was in custody from January 2012 to 3 January 2013. Time spent in custody does not count towards lawful residence. Therefore his period of continuous lawful residence in the UK since 2006 exceeds five years but was less than ten years.

18. The panel noted that the appellant commenced offending well before the death of his father and his criminal records date back to 2005. Petty crime escalated into drug dealing. As a persistent offender, he has demonstrated contempt for the laws of this country. He is at medium risk of re-offending. He has squandered the educational and other great opportunities he was given when he came to the UK and instead chose to embark on a life of crime.

19. The panel stated that the nature and seriousness of the offence committed by the appellant is thoroughly repugnant to the generally accepted standards of morality and the public policy/interest in being protected against those who commit such offences is of considerable importance and deserves protection. The appellant’s criminal behaviour undermines the good order of society and renders a threat to it.

20. The UK is not required to keep here someone whose conduct strikes so deeply at its social values and strains the tolerance of even a broadminded society. The public policy/interest in deportation of those who commit crimes goes well beyond depriving the offender from the chance to re-offend in this country; it extends to deterring and preventing serious crime generally and to upholding the public abhorrence of such offending.

21. The panel stated that as regards the appellant’s private life, it is clear he has relatives in the Czech Republic and there is no evidence that they are unwilling or unable to house and maintain him until he can forge an independent life of his own. The appellant has spent his formative years in the Czech Republic and has re-visited the country since he came to the UK. He would return to a country with whose culture, language, heritage and customs he is familiar with and with the useful skills acquired in a developed country and a good knowledge of the English language, that would stand him in good stead upon return. His private life would continue in all material respects in the Czech Republic save for different societal community links. Friends and family members in the UK could maintain communication with him by the usual means and by visits. There is no evidence that the Czech Republic is in any way unsafe for him. No evidence was submitted in respect of potential homelessness, unemployment or destitution. Deportation would not have the effect of breaching his right to a private life.

22. The panel stated that the policy/interest in deporting the appellant must be weighed against his right to family life. He has failed to demonstrate ties of dependency with his family and Iveta beyond the usual emotional ties. It is significant that Iveta has refused to join him in the Czech Republic. The panel found that this does not suggest a strong and abiding link between them that would lead to marriage and a family unit of their own, as has been claimed. The panel found that deportation of the appellant would constitute interference with his family life but this is proportionate to the legitimate objective and prevention of crime and disorder and would not amount to a breach of Article 8 of the ECHR.

23. The panel also found that the Secretary of State’s decision to deport the appellant is in accordance with the Immigration Rules (Appendix FM) and the applicable policy is not unlawful.

24. The appellant was granted permission on grounds which argued that the panel failed to consider case law, wrongly evaluated the appellant’s private and family life arrangements and failed to properly consider the effect of the appellant’s removal on third parties. They particularly took issue with the panel’s finding that the fact that the appellant’s partner had refused to join him in the Czech Republic did not suggest a strong and abiding link between them but other than that insufficient reasons were given for reaching the conclusion that deportation outweighed rights under article 8 of the ECHR.

25. Counsel submitted that she had relied on the Upper Tribunal’s decision in Ogundimu (Article 8 – new Rules) Nigeria [2013] UKUT 60 (IAC) (18 February 2013) at the hearing before the panel but the panel did not refer to this case at all. She argued that the facts of this appellant’s case are similar to the facts in Ogundimu, in particular both the appellant and Ogundimu came to the UK when they were young and spent their formative years in the UK. Therefore the panel got it wrong when they said that the appellant had spent his formative years in the Czech Republic. In this regard Counsel submitted that the panel failed to consider paragraph 399A of the Immigration Rules which is referred to in Ogundimu. At page 18 of Ogundimu the Upper Tribunal cited 399A(b) which says that this paragraph applies where the person is under 25 years, and has spent at least half of his life living continuously in the UK immediately preceding the date of the immigration decision (discounting any period of imprisonment) and has no ties (including social, cultural or family) with the country to which he would have to go if required to leave the UK. Counsel submitted that the appellant is 24 years old and has spent half of his life in the UK. He has no social ties with the Czech Republic.

26. Counsel submitted that the panel were wrong in their assessment of the appellant’s appeal under Article 8 of the ECHR. She submitted that the appellant’s partner of seven years explained why she could not join him in the Czech Republic and this was because she has family in the UK. She also believed that they would be homeless if they returned to the Czech Republic. Counsel argued that the panel failed to take account of the impact of the appellant’s removal on third parties and failed to consider MF (Article 8 – new rules) Nigeria [2012] UKUT 393 (IAC). As to this latter point, I informed Counsel that she did not raise the panel’s failure to consider MF in the grounds of appeal. She apologised and said she did not draft the grounds.

27. Mr Melvin in respect of ground 1 relied on the second head note of Ogundimu which states:

“The introduction of the new Immigration Rules (HC 194) does not affect the circumstance that when considering Article 8 of the Human Rights Convention ‘for a settled migrant who has lawfully spent all or the major part of his or her childhood and youth in this [country] very serious reasons are required to justify expulsion’. The principles derived from Maslov v Austria [2008] ECHR 546 are still to be applied.”

28. Mr Melvin submitted that the appellant and his family exhausted their appeal rights in 2002. The family did not go back to the Czech Republic but were granted lawful residence in 2006 when the appellant was 17. It cannot on these facts be argued that he was lawfully resident in the UK prior to 2006. This is the difference between the appellant and Ogundimu. The panel considered that the appellant had no lawful residence prior to 2006. There is no case law to support the proposition by Counsel that because the panel failed to refer to Ogundimu the failure was a material error of law.

29. Mr Melvin submitted that the appellant spent the first eleven years of his life in the Czech Republic. The next five years he spent illegally in the UK. Even if the formative point is made out, it is not material because the panel considered the appellant’s Article 8 claim against the appellant’s offending behaviour.

30. As to the appellant’s relationships, Mr Melvin submitted that the panel had before them the evidence of the appellant’s family life with his partner and his family. He has relatives in the Czech Republic. He is an adult and has been for a considerable number of years. There is no reason why he should not be able to return to his country of origin. Dealing in class B drug to class A drug is high up on the proportionality assessment made by the panel. They considered that he had escalated from petty crime to a more serious crime and had shown contempt for the laws of the UK.

31. In response Counsel said that the appellant has lived in the UK for thirteen and a half years and therefore has spent half of his life in the UK. He has a partner who has indefinite leave to remain. The whole of his family is in the UK. The appellant then interrupted and though Counsel stated that the family came to the UK because they feared for their lives in the Czech Republic. He had made that point to the judge. However I noted that this point did not feature in the grounds of appeal lodged on behalf of the appellant against the panel’s decision. I also noted that the appellant’s immigration history that he failed to pursue an asylum claim when given the opportunity on grounds of fear for his life if returned to the Czech Republic.

32. I find that the panel did not err in law.

33. There is no support for Counsel’s argument that the panel’s failure to refer to case law put before them amounts to an error of law. In any event I do not support Counsel’s argument that the facts of this appellant’s case are similar to the facts in Ogundimu. Ogundimu arrived in the UK at the age of 6 to join his father who had been settled in the UK since 1961. He was granted indefinite leave to remain eight years later and had been resident in the UK for 21 years at the time of the hearing and for about three quarters of his life. In his appeal against the respondent’s decision Ogundimu had relied on the fact of his long residence and that he was the father of, and maintained a relationship with a British citizen child born on 24 August 2004. There were other issues the Tribunal considered in Ogundimu, such as his relationship with his stepchild, (TS) with whom he had lived in the same household for over half of her life. A social worker indicated that the appellant had a positive relationship with TS. Central to the concern of the Tribunal was whether the appellant had remained addicted to crack cocaine. It was that addiction that led him to engage in serious criminal conduct in the past and would pose an unacceptable risk to the public in the future. I find that these facts are in no way similar to the facts of this appellant.

34. The appellant came to the UK when he was 11 years old with his parents. He is now 24 years old and has therefore been in the UK for thirteen years. I find on these facts that the appellant spent part of his formative years in the Czech Republic and part in the UK. Even if the panel erred in their finding that the appellant spent his formative years were in the Czech Republic, I find that the error is not material as not all of his formative years were spent in the UK as argued by Counsel.

35. I find no error of law in the panel’s assessment of the appellant’s Article 8 appeal. As the panel rightly said the appellant has failed to demonstrate ties of dependency with this family beyond the usual emotional ties. The appellant is an adult. His mother has two daughters and grandchildren in the UK. She would not be without help should she require it. Indeed one daughter lives with her.

36. Even if the panel’s finding with respect to the appellant’s relationship with Iveta is flawed, the error is not material. They have been in a relationship for seven years. They are both from the Czech Republic. They are both unemployed in the UK. The appellant has family in the Czech Republic. No evidence was submitted to the panel in respect of potential homelessness, unemployment or destitution.

37. I find that the panel weighed the nature of the appellant’s criminal offending and its escalation from petty crime into drug dealing against the appellant’s right to family and private life. The panel took all the evidence into account in reaching a decision which I find discloses no error of law.

38. I consider Counsel’s submission that the panel failed to take into account MF (Article 8 – new rules) Nigeria [2012] UKUT 00393 (IAC). The panel at paragraph 17 found that the respondent’s decision to deport the appellant was in accordance with the Immigration Rules (Appendix FM). I accept that the panel did not give a reason for their finding. Furthermore they failed to look firstly at the new Immigration Rules as required by FM. These errors are not material because I find that had the panel considered the new Immigration Rules first in respect of the article 8 appeal, they would have found that the appellant did not qualify for leave to remain under the new Immigration Rules. As already stated he came here at the age of 11 and has spent another thirteen years in the UK. Discounting the period of imprisonment, he has been here for eleven years and with lawful leave since April 2006. The appellant has not lawfully spent all or the major part of his childhood and youth in the UK. In addition to that the panel’s finding that the appellant has social, cultural and family ties in the Czech Republic has not been challenged. Accordingly the appellant would not have succeeded under paragraph 399A(b).

39. I find that the panel did not make a material error in law. The panel’s decision dismissing the appellant’s appeal against deportation shall stand.

Signed Date

Upper Tribunal Judge Eshun