Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: DA/01774/2014

THE IMMIGRATION ACTS

Heard at: Manchester
Decision Promulgated
On: 1st September 2016
On: 6th September 2016

Before

UPPER TRIBUNAL JUDGE BRUCE

Between

The Secretary of State for the Home Department
Appellant
And

George Alexandru Stonescu
(anonymity direction not made)
Respondent

For the Appellant: Mr Harrison, Senior Home Office Presenting Officer
For the Respondent: In person

DECISION AND REASONS
1. The Respondent is a national of Romania date of birth 28th December 1986. On the 5th May 2015 the First-tier Tribunal (Judge McGarr) allowed his appeal against a decision to deport him from the United Kingdom with reference to the Immigration (European Economic Area) Regulations 2006 ('the Regs'). The Secretary of State for the Home Department now has permission to appeal against that decision1.
Background
2. The Respondent claims to have lived in the United Kingdom since 2002 when he came here to live with his parents; he was then aged 9. On the 24th July 2013 he was convicted at Salford magistrates of possession of a Class A drugs (cocaine) with an intent to supply. He was sentenced to two years in prison. The Secretary of State consequently took a decision to deport him, served on the 24th June 2014.
3. The basis of the decision was that the Secretary of State was satisfied that the Respondent posed a genuine, present and sufficiently serious threat to the interests of public policy. It was not accepted that the Respondent had acquired a permanent right of residence, since he had failed to demonstrate that he had been living in the United Kingdom for a continuous period of five years in accordance with the Regs. He could not therefore claim the 'enhanced protection' against removal that such a status would bring.
4. The First-tier Tribunal agreed with the Secretary of State in respect of the Respondent's status. He may have lived in the UK on and off since childhood but the Judge could not be satisfied that he had acquired a permanent right of residence. The evidence about when he had arrived, and when and whether he had worked, was unclear and contradictory. Having considered the evidence, both documentary and oral, the Tribunal concluded that it could safely find that the Respondent had lived in the UK for a continuous period only since April 2009. He had not therefore demonstrated that he had accrued a five year period immediately prior to his sentence. Having made those findings the Tribunal directs itself, at paragraph 62 of the determination, thus:
"With regard to the decision to remove the Appellant under Regulation 19(3)(b) and Regulation 21 on the basis of "serious grounds" of public policy, I remind myself that the removal of an EEA national using this provision cannot be invoked to serve economic ends. Furthermore, measures taken on grounds of public policy shall comply with the principle of proportionality and be based exclusively on the conduct of the Appellant. The conviction recorded against the Appellant shall not in itself constitute grounds for taking such measures as removal. Critically, the personal conduct of the Appellant must represent a genuine, present and sufficiently serious threat affecting one of the fundamental interests of society"
5. The determination goes on to consider the following facts: that the Respondent was an addict of, and dealer in, Class A drugs (noting in passing that it may be that he was doing this for considerably longer than the Crown Court sentenced him for), that he is now drug-free and is assessed by NOMS as presenting a low risk of serious harm and/or re-offending, and that he completed several educational courses in prison, that his early release would indicate good conduct and that there is nothing to suggest he has "misbehaved" since his release. At the centre of these deliberations is the following, at paragraph 64:
"In any event, I find that it was the Appellant's decision to present himself to the police which demonstrates a clear desire on his part to turn his life around and put drugs and his lifestyle behind him. Though the Appellant was convicted of a serious drugs offence, which demanded a period of imprisonment, there was strong mitigation in his favour including his good character, his cooperation with the police and guilty pleas at the first opportunity for which he was given full credit by the sentencing judge who gave him a below tariff sentence. I cannot ignore this."
6. The determination concludes with the Tribunal reminding itself of the principles of proportionality, the sentencing remarks of HHJ Leeming and its assessment of the evidence, noting that "little weight" had been placed on the evidence of the Appellant, his mother and aunt because of inconsistencies in it. Overall the Tribunal cannot be satisfied that there are serious grounds justifying deportation.
The Secretary of State's Appeal
7. The grounds of appeal, drafted by Senior Presenting Office Mr Bramble and where appropriate amplified by Mr Harrison's oral submissions, are that the First-tier Tribunal has erred in law:
a) In directing itself that the Secretary of State had to show there were "serious grounds" for deportation;
b) In placing too much weight on the appellant's own assertion that he was a reformed individual.
My Findings
Ground 2: the Respondent's Evidence
8. For reasons that will become clear, I deal with Ground 2 first. It is manifestly without any merit at all. Weight is a matter for the First-tier Tribunal and save in cases of irrationality the Upper Tribunal will not interfere with a Judge's discretion on such matters. In this case the Judge expressly records that he gave "little weight" to the Respondent's oral evidence. The evidence that led him to conclude that this was truly a reformed character before him was nevertheless clear. The uncontested facts spoke for themselves. The Respondent had handed himself in to the police and asked for help. He wanted rehabilitation. He had been a model prisoner who had been released early and who had taken the educational opportunities afforded to him by the prison service. He had no offences recorded since his release and there was no evidence to show that he had not complied with his parole/bail conditions. The NOMS assessment was that he presented a low risk. All of that evidence pointed one way. There was in fact no evidence at all to indicate that this man presented a risk of reoffending. Ground 2 is not made out.
Ground 1: the correct test
9. The legal framework to be applied in this case derived from Regulations 19(2)(b) and 21 of the Regs (the relevant parts highlighted):
Exclusion and removal from the United Kingdom
19.- (1) A person is not entitled to be admitted to the United Kingdom by virtue of regulation 11 if his exclusion is justified on grounds of public policy, public security or public health in accordance with regulation 21.
(2) A person is not entitled to be admitted to the United Kingdom as the family member of an EEA national under regulation 11(2) unless, at the time of his arrival-
(a) he is accompanying the EEA national or joining him in the United Kingdom; and
(b) the EEA national has a right to reside in the United Kingdom under these Regulations.
(3) Subject to paragraphs (4) and (5), a person who has been admitted to, or acquired a right to reside in, the United Kingdom under these Regulations may be removed from the United Kingdom if-
(a) he does not have or ceases to have a right to reside under these Regulations; or
(b) he would otherwise be entitled to reside in the United Kingdom under these Regulations but the Secretary of State has decided that his removal is justified on the grounds of public policy, public security or public health in accordance with regulation 21.
(4) A person must not be removed under paragraph (3) as the automatic consequence of having recourse to the social assistance system of the United Kingdom.
(5) A person must not be removed under paragraph (3) if he has a right to remain in the United Kingdom by virtue of leave granted under the 1971 Act unless his removal is justified on the 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 ends.
(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.
(4) 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; or
(b) is under the age of 18, unless the relevant decision is necessary in his best interests, as provided for in the Convention on the Rights of the Child adopted by the General Assembly of the United Nations on 20th November 1989.
(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 a relevant decision on the grounds of public policy or public security in relation to a 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.
10. The Tribunal had found that the Respondent had not been in this country for a continuous period of five years prior to his imprisonment and so he could not qualify for any enhanced protection. The Secretary of State complains that at paragraphs 62 and again at 70 the determination contains the phrase "serious grounds of public policy". I accept Mr Harrison's submission that this must constitute misdirection. The Tribunal had already rejected any assertion that the Respondent had acquired a permanent right of residence and it did not therefore need to assess whether Regulation 21 (3) applied.
11. I am not satisfied however that this error was material to the outcome of the appeal. It is apparent from the body of the reasoning that the Tribunal was in fact applying the relevant tests, those derived from Regulation 21 (1),(2) and (5). The proportionality balancing exercise focuses on those issues. Even if it could be demonstrated that the Tribunal did erroneously apply the higher test of "serious grounds" it does not matter, because on the facts as found this was plainly an appeal which fell to be allowed in any event. The only matter weighing against the Respondent was his conviction. The Tribunal expressly noted at paragraph 61 that the removal action was pursued under Regulation 19(3)(b) and not 19(3)(a). Weighing against that was considerable mitigation and crucially, the evidence discussed at paragraph 8 above. There was no evidence at all that this young man's conduct represented a "genuine, present and sufficiently serious threat affecting one of the fundamental interests of society". Dealing Class A drugs is plainly a serious threat to society but there being such a low risk of reoffending his past conduct was not sufficient to warrant his deportation.
Conclusion
12. The Secretary of State had justification for her submission that the term "serious grounds" should not have found its way into this determination, but viewed overall it is apparent that this is not the test that was in fact applied. The appeal would have been allowed on the facts as found under any of the alternative tests in Regulation 21.
13. I would note in closing that Mr Stonescu represented himself at this hearing and gave every indication of being the reformed individual that the First-tier Tribunal believed him to be. He gave brief evidence about his efforts to secure employment and was very happy to report that he was due to start work the day after the hearing. He has been reporting each week as he is required to do. He is looking forward to establishing himself in gainful employment and starting his life afresh on the right side of the law.

Decisions
14. The determination of the First-tier Tribunal contains no material error of law and it is upheld.
15. There is no order for anonymity.

Upper Tribunal Judge Bruce
2nd September 2016