Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: DA018142014

THE IMMIGRATION ACTS

Heard at Bradford
Decision & Reasons Promulgated
On 13 June 2016
On 15 June 2016

Before

UPPER TRIBUNAL JUDGE CLIVE LANE

Between

s s
(ANONYMITY DIRECTION MADE)
Appellant

and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT

Respondent

Representation:

For the Appellant: Mr Cross, Duncan Lewis & Co Solicitors
For the Respondent: Mrs Pettersen, a Senior Home Office Presenting Officer

DECISION AND REASONS

1. The appellant, SS, was born in 1980 and is a male citizen of Latvia. He appealed to the First-tier Tribunal (Judge C J Woolley) against the decision of the respondent dated 1 September 2014 to deport him to Latvia. The First-tier Tribunal, in a decision promulgated on 3 March 2015, dismissed the appeal. The appellant now appeals, with permission, to the Upper Tribunal.
2. The appellant had arrived in the United Kingdom in April 2006 from Latvia and had worked variously as a warehouse operative and in a factory. He is a drug user and took to shoplifting in order to fund his habit. He was sentenced to imprisonment in the United Kingdom in August 2009 for driving while disqualified and for theft offences the last custodial sentences have been passed in June 2014. The appellant claimed that if he returned to Latvia he will be killed by the mafia there.
3. The appellant was not represented before the First-tier Tribunal. The first two grounds of appeal complain of the judge's failure to adjourn the hearing and to give directions in respect of the appellant's partner, L. The judge dealt with the adjournment application at [4]:
"The appellant applied for an adjournment. One year before his sister had passed away and his mother could not come with him today. He should be at home as well. He had left some papers at home with information as to what he did now (working nightshifts and looking after three children). Ms Lewis [the Home Office Presenting Officer] considered this was an unusual application. There was a need to have evidence of treaty rights and there was no evidence of them as yet. Family members would have attended. She did not oppose the application. After considering all the submissions I indicated I was not prepared to adjourn. The appellant was already in court despite his sister's death and he could give evidence of the exercise of treaty rights. He had a witness who could speak in his support. He had a bundle of documents present in court. I considered the appeal could be justly determined without an adjournment and that it should proceed."
4. As the grounds of appeal record, that the present Procedure Rules of the First-tier Tribunal simply provide a paragraph to "adjourn and postpone a hearing"; there is no test as to the justice of the decision to adjourn provided by paragraph 21 of the 2005 Rules. The judge's decision, therefore, ought to be considered by reference to the overriding objective in the current Procedure Rules to "deal with cases fairly and justly". Ultimately, the judge had to consider the question of fairness and to determine the application for adjournment accordingly. The grounds of appeal place much weight upon the fact that the respondent supported the application. However, the decision remained one for the judge. He was not compelled to adjourn simply because both parties had agreed that the hearing should be adjourned. The grounds also assert that an adjournment was required to enable the appellant "to obtain his witnesses and central material supported the relationship between the appellant and his three children?" The judge accepted that the appellant had a relationship with his three children and that he was a joint carer with his partner L for those children. It is unclear, even at this stage in the proceedings, that the evidence which the appellant states he would have adduced had there been an adjournment might have materially altered the factual basis upon which the judge determined the appeal. Indeed, as regards the question of rehabilitation, the judge dealt with this at [30] basing her findings to a large extent on the candid description of his own criminality provided by the appellant himself. The judge was entitled to note that the appellant had been informed of the date of the hearing and time in advance and that he might well have anticipated that the hearing would coincide with the anniversary of his sister's death. Despite being aware of that fact, the appellant had done nothing to seek an adjournment prior to the date of the hearing itself. I am satisfied that the judge took fully into account the fact that the appellant was not legally represented and I find that she was entitled to conclude that the hearing could be determined fairly without an adjournment because the appellant himself was in court and able to give evidence because he had brought documents with him to support his case. Another judge faced with the same application may have come to a different conclusion. However, that is not the point. Judge Woolley has given adequate reasons for refusing the adjournment. She was entitled to find that the hearing could be conducted fairly.
5. The grounds also complain the judge failed to adjourn the hearing despite the fact that the appellant's partner (L) had been granted permission for a judicial review on 24 February 2015 against the respondent's refusal of her claim that she had been trafficked. The grounds assert that the judge should have linked the appeals of the appellant and L. To have done so would have required an adjournment.
6. I find that the ground has no merit. That the appellant's partner may well have been granted permission to bring judicial review proceedings. She appears to have received that permission on the same day as the hearing before Judge Woolley. The Presenting Officer was able to inform the judge that the appeal of L before the Tribunal had been withdrawn. First, I find that there were no proceedings before the Tribunal which the judge could have consolidated. It was not reasonable to expect the respondent to have known of the grant of permission for judicial review given that that permission was granted on the same day as the First-tier Tribunal hearing. Secondly, even if the respondent and the Tribunal had been aware of the grant of permission it is not clear why this should have led the First-tier Tribunal to adjourn the appellant's appeal. L is a Latvian citizen and the joint carer of the children of herself and the appellant. When assessing L's position and that of the children, the judge has done so on the alternative bases that L would remain in the United Kingdom with the children or be removed with the children and the appellant to Latvia. Whatever the outcome of the judicial review application of L, those appear to remain the only possible scenarios and Judge Woolley has duly considered them.
7. Ground 3 concerns the judge's conclusion that the appellant represented a genuine present and sufficiently serious threat to one of the fundamental interests of society. The judge properly considered Essa (EEA: rehabilitation/integration) [2013] UKUT 316 (IAC). The grounds complain that the Tribunal,
"... failed to consider the potential result deportation of the appellant and the likely diminution of the family support for him and the withdrawal of the discipline of methadone conditions which he now faces since his release and the benefits of regular employment in the community and the new position as the primary carer of his children."
8. The judge dealt with Essa at [30]. The judge noted there had been "no evidence that the appellant had made any progress towards rehabilitation". He had undertaken a victims' awareness course but "this course had not had any effect since very soon after his release he committed a further offence of shoplifting". On the basis of the evidence, the judge concluded that the appellant had shown "no reasonable prospects of rehabilitation". The judge was aware of the appellant's relationship with L and the existence of their children, for whom he was the primary carer. The judge did not need to repeat that she was aware of those facts in her discussion of the prospects of rehabilitation. I am satisfied that the judge reached her decision as regards rehabilitation by duly following Essa and on the basis that the appellant had family ties and responsibilities here in the United Kingdom but she found that, notwithstanding that evidence, she was satisfied that the appellant would continue to commit offences in order to fund his drug habit. Indeed, the judge noted that the appellant's "problems are very deep seated and that he is a habitual criminal" [31].
9. The fourth ground of appeal concerns the judge's assessment of the interests of the children A and L. At [35], the judge found that it would "not be unduly harsh for the children to remain in the UK without the presence of the appellant since they have already been separated from him by numerous terms of imprisonment and immigration detention". I reject entirely the suggestion in the grounds that the judge in some way considered that the interests of the children should be diminished on account of the fact that they are not British citizens. Furthermore, implicit in the judge's reasoning is her understanding that neither the appellant nor L face detention in Latvia if either or both of them are returned to that country. Either or both the appellant and L, therefore, will be able to look after the children either in the United Kingdom or in Latvia. The fact that the children are Latvian rather than British does not provide any additional reason for their remaining here rather than Latvia. The judge was entitled to find that the children (aged 11 and 7) had not "developed an independent life apart from their parents". Her assessment of the interests of the children are clear and properly reasoned and, as I have noted above, the judge has considered the case both on the basis that L remains in the United Kingdom or returns to Latvia. The judge has not fallen into legal error for the reasons identified in the grounds of appeal or at all.
10. The final ground of appeal concerns L and the appellant's asylum claims. The grounds complain that the position of L had not been properly considered especially in the light of the fact that she had been granted permission to bring proceedings for judicial review. I repeat the facts as regards L which I have set out above. The judge was not aware that L had been granted permission to bring proceedings for judicial review. She was aware L's appeal to the Tribunal had been withdrawn. Further, the judge has dealt with the appellant's claims regarding himself and L and the mafia and rejected that evidence [47]. She did not accept that L or the appellant were at risk from the mafia in Latvia and has given reasons for rejecting the appellant's account. At the date of the hearing before the First-tier Tribunal, there had been no judicial determination of L's claims and, in my opinion, the judge's findings are sound.
11. For the reasons I have given, this appeal is dismissed.

Signed Date 9 June 2016

Upper Tribunal Judge Clive Lane

I have dismissed the appeal and therefore there can be no fee award.

Signed Date 9 June 2016

Upper Tribunal Judge Clive Lane