Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: DA/02126/2013

THE IMMIGRATION ACTS

Heard at Field House
Decision Promulgated
On 11 January 2017
On 08 March 2017

Before

UPPER TRIBUNAL JUDGE CANAVAN

Between

BENIUS RAZUMAS
Appellant
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the appellant: Ms B. Poyner, Counsel instructed by Elder Rahimi Solicitors
For the respondent: Mr N. Bramble, Senior Home Office Presenting Officer

DECISION AND REASONS

1. The appellant is a Lithuanian citizen who appealed against the respondent’s decision dated 02 October 2013, and supplementary letters dated 05 November 2013 and 17 September 2014, to remove him from the UK on public policy grounds under regulation 21 of The Immigration (European Economic Area) Regulations 2006 ("the EEA Regulations 2006").

2. First-tier Tribunal Judge Blackford (“the judge”) allowed the appeal in a decision promulgated on 24 March 2015. The respondent was granted permission to appeal the decision, which was set aside by a panel of the Upper Tribunal (“the panel”) at a hearing on 28 July 2015. The panel concluded that the First-tier Tribunal decision involved the making of an error of law. In view of the lack of evidence produced by the appellant relating to his employment history, the panel found that it was not open to the judge to conclude that there was sufficient evidence to show that the appellant had acquired a permanent right of residence. The judge failed to provide sufficient reasons to justify the finding. The panel also found that the judge failed to give sufficient consideration to whether the appellant continued to pose a genuine, present and sufficiently serious threat. The First-tier Tribunal decision was set aside and the case was adjourned for the decision to be remade at a resumed hearing before the Upper Tribunal.

3. Relisting was delayed because the appellant suffered further health problems. On 29 September 2016 Upper Tribunal Judge Rimington directed that the appeal should be listed for hearing on the first available date after 01 January 2017. The appeal came before me at a resumed hearing on 11 January 2017.

4. The appellant and his partner, Edita Zilute, gave evidence with the assistance of an interpreter although the appellant gave most of his evidence in English. The relevant aspects of their evidence are incorporated into my findings of fact. The full detail of the hearing is a matter of record. I have taken into account the submissions made by both parties before coming to a decision in this appeal.

Decision and reasons

5. A decision can be taken to remove an EEA national on grounds of public policy, public security and public health. Those who have acquired a right of permanent residence following a continuous period of residence of five years in accordance with the EEA Regulations 2006 have a higher level of protection from removal. A decision can only be taken to remove a person who has acquired a permanent right of residence on serious grounds of public policy, public security and public health.

6. The first question that I must consider is whether the appellant has produced sufficient evidence to show on the balance of probability that he acquired a right of permanent residence after a period of five-years i.e. by April 2009. The appellant says that he arrived in the UK on 27 April 2004 and asserts that he worked consistently until his imprisonment in 2011. The appellant needs to show a continuous five-year period of residence during which time he was exercising his right of free movement in accordance with the EEA Regulations 2006.

7. A statement prepared in support of separate judicial review proceedings, signed on 16 June 2015, outlines his work history. The appellant said that he came to the UK in April 2004 in order to find work. His account of his work history is generalised. No specific start or end dates are given for each period of employment. This is perhaps understandable given the fact that the appellant appears to have worked for a number of employers and recruitment agencies over a period of years. The appellant produced correspondence from HM Revenue & Customs (“HMRC”) dated 04 March 2016, which outlines records of his income and contributions from the tax year 2004/2005 to 2007/2008. The letter also provides the dates when the appellant left the relevant employment. The last employment date recorded was for a company called Labour Ready Service UK Ltd. The records indicate that he left that employment on 22 November 2007. Thereafter, the HMRC letter shows that there were no records for the tax year 2008/2009.

8. Although an earlier letter from HMRC dated 14 September 2015 also shows some sporadic records of employment for small amounts of income for the tax year 2009/2010 and 2013/2014 there is a gap in the evidence for the period after November 2007 when the appellant left employment with Labour Ready Service UK Ltd. There are no records to show that the appellant was exercising his right of free movement for a period of nearly a year and a half from November 2007 until April 2009.

9. The work history provided by the appellant in his statement dated 16 June 2015 is silent as to what work he did in the period from November 2007 until April 2009. He said that his brother committed suicide in 2009. After this tragic event he decided to move to London because “there was not much work in Wales”. He said that he went to register at the local Job Centre but provided no information about what work, if any, he carried out after he moved to London at some point in 2009.

10. The appellant’s most recent statement provides little additional detail. The most he can say is that he recalls working consistently “for a large majority of the period” before he was imprisoned in 2011. He says that he ‘thinks’ he registered with the Job Centre in 2008 and completed some training with them. However, the statement does not say which Job Centre he registered with or whether he was able to find work as a result of the training. The appellant is unable to say when he came to London in 2009. The statement says that he worked at a car wash in Dagenham but he does not say when or for how long.

11. The appellant’s evidence at the hearing was no less vague. When asked whether he worked in the period 2008-2009 he said that he thought he worked for six months at a brick factory but he couldn’t remember the name of the factory. He thought he did some work for the factory in 2008. He said that he was paid by an agency, but unlike other agency work, this was not registered in the HMRC records. The appellant said that the only time he had been paid cash in hand was when he worked at the car wash in 2009. The appellant outlined other types of work he remembered doing but was unable to say when he carried out that work.

12. On the whole, I found to the appellant to be a generally credible witness who gave his evidence in an open and unrehearsed way. However, despite the importance of the issue he was unable to give a coherent account of his work history during the period from November 2007 to April 2009. He admits that the reason why he moved to London at some point in 2009 was because he was having difficulty finding work in Wales. In other evidence, he explained that he was eventually sent to prison after a period when his drinking got out of hand and he also turned to drug use. It is possible that the appellant’s work history also became erratic.

13. After having weighed the evidence as a whole I am not satisfied that the appellant has been able to give a sufficient detailed or coherent account of his work history during the missing period of time from November 2007 to April 2009. While I take into account the fact that he appears to have done unskilled work for a fairly large number of employers, and that this might make it difficult to remember the work history in exact detail, the vague and approximate evidence he has given is insufficient to show on the balance of probability that he was working or that he was exercising free movement rights as a job seeker.

14. The appellant has lived in the UK for a period of twelve years. As such, I have considered whether there is any evidence to show that permanent residence was acquired at another stage. The five-year period after his employment records began again in late 2009 only shows sporadic periods of employment and is punctuated by periods of imprisonment. For these reasons I find that the appellant has failed to show on the balance of probability that he acquired a right of permanent residence during any continuous five-year period since he has lived in the UK. As such, the respondent was entitled to assess the case on the lowest threshold relating to public policy, public security or public health.

15. A relevant decision made under regulation 21 must comply with the principle of proportionality. It must be based exclusively on the personal conduct of the person concerned. The person must represent a genuine, present and sufficiently serious threat affecting one of the fundamental interests of society. Matters isolated from the particulars of the case or which relate to considerations of general prevention do not justify the decision. A person’s previous criminal convictions do not in themselves justify the decision. 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 UK, the person’s social and cultural integration in the UK and the extent of the person’s links with his or her country of origin.

16. I am satisfied that the criminal offences committed by the appellant are sufficiently serious to engage grounds of public policy. The appellant has a number of convictions for driving offences in 2006, which were initially dealt with by way of community orders and disqualification from driving. In 2009 he was convicted of theft and was fined. The Police National Computer (PNC) records show that in 2010 he was convicted of further driving offences including driving whilst disqualified and uninsured and failing to provide a specimen when required for which he was sentenced to twelve weeks’ imprisonment and a consecutive sentence of two weeks’ imprisonment for failing to surrender to custody. In 2011 he was sentenced to eight months’ imprisonment for possession of a fake Lithuanian driving licence. In 2012 the appellant was sentenced to eight weeks’ imprisonment for driving while disqualified and using a vehicle while uninsured. He also received a fine for possession of a Class B drug (cannabis). These repeated offences were at a relatively low level, but the number of offences indicated a general disregard for the law, particularly in relation to driving.

17. However, it seems clear that the respondent did not consider those offences sufficiently serious to justify removal on public policy grounds until the appellant was convicted of a far more serious offence in 2012. The appellant was sentenced to forty-two months’ imprisonment for robbery with a concurrent sentence of six months’ imprisonment for possessing an offensive weapon. The offence involved robbery of a car at knifepoint. The appellant was convicted after a trial. The sentencing judge noted that the appellant had a “very bad record”, but observed that his previous convictions were not at the same level of seriousness. The PNC record also shows a separate conviction, tried at a different court in 2012, for theft of a vehicle, for which he was sentenced to imprisonment for twelve weeks. Little information is provided regarding that offence.

18. The nature of the appellant’s convictions in 2012 were far more serious. The respondent noted that the fact that the appellant was subject to Multi-Agency Public Protection Arrangements (MAPPA) indicated the level of risk that he posed to the public. The National Offender Management Service (NOMS) assessed him to pose a medium risk of serious harm to others. The same assessment also concluded that he was likely to pose a high risk of re-conviction given the number of previous convictions, his age and the nature of his reoffending. The respondent concluded that the appellant had an established pattern of repeat offending, which indicated a propensity to reoffend. There had been an escalation in the seriousness of the offences that justified his removal. At the date of the initial removal decision, made in October 2013, the respondent noted that the appellant was single and in good health. He had not provided any evidence of close family or other ties to the UK. As such, it was considered proportionate to remove him from the UK.

19. The NOMS assessment referred to in the respondent’s original decision letter was dated 14 August 2013. The assessment takes the form of a standard questionnaire completed in response to an enquiry by the UKBA. It is not a detailed assessment of the kind conducted by the probation service in an OASys assessment. The NOMS assessment stated that an OASys assessment had not been carried out. No OASys assessment was required until he was due for release. No pre-sentence report had been requested. I conclude that the NOMS assessment was not a detailed risk assessment, which was due to take place nearer the time of the appellant’s release.

20. The appellant says that he was released on licence on 17 June 2015. A letter from the appellant’s offender manager dated 12 July 2016 stated that he was subject to supervision while on licence, which expired on 04 February 2016. His offender manager provided the following up to date assessment of risk:

“At the point of termination Mr Razumas was assessed as posing a low risk of re-offending based on actuarial and clinical findings on the Offender Group Reconviction Scale (OGRS).

Mr Razumas was assessed as posing a medium risk of harm to the public. A medium risk of harm generally indicates that there are identifiable indicators of risk of serious harm. The offender has the potential to cause serious harm but it unlikely to do so unless there is a change in circumstances, for example, failure to take medication, loss of accommodation, relationship breakdown, drug or alcohol misuse.”

21. The letter states the outcome of the assessment but does not explain how or why the risk of re-offending was reduced to a low risk or why he continued to be assessed as posing a medium risk of harm to the public. If an OASys assessment was carried out prior to release, it is not in evidence before the tribunal. Although the letter from the appellant’s offender manager is limited, there is nothing to suggest that the appellant failed to comply with any of the conditions of his licence. He has not been convicted of any further offences in the year and a half since his release from prison.

22. It appears that the appellant has pursued opportunities offered to him for rehabilitation. The appellant has produced several awards for ceramics from the Koestler Trust, which offers arts opportunities for offenders. He told me that he also received support from a psychologist at the Harold Wood clinic who he has seen every two weeks since he received his prosthetic leg. He said that he had been unable to provide written evidence from her to support the appeal. However, I accept that it is plausible that he may have been given psychological support to help him come to terms with the amputation of his leg. While there is no documentary evidence of the extent and nature of the support given by the psychologist, I accept that this is likely to be a factor that, in general terms, is likely to assist his rehabilitation.

23. At the hearing the appellant explained that one of the main causes of his offending behaviour was his abuse of alcohol, and for a period, of drugs. The appellant told me that his parents were alcoholics and used to beat him. Everyone drank heavily. When he came to the UK he also drank a lot. He said that he was at a low point in his life when he committed the more serious offences. I take note that this was a couple of years after his brother committed suicide. The appellant said that he became involved with a group of friends who did not work and drank all the time. He used drugs for six months. This was when he committed the most serious crimes. The appellant told me that prison taught him a lesson. His personal circumstances have changed. He does not want to bring up his children in the same way he was. In his statement the appellant said that he had not had a drink since June 2012. He sought advice from Alcoholics Anonymous (“AA”), but he was told that he was not suitable because he had not had a drink for such a long time.

24. I note that First-tier Tribunal Judge Blackford expressed some reservations as to whether the appellant had tackled the issue of alcohol abuse. At that stage, the appellant was still in prison, where the judge considered he had far more limited access to alcohol. I find it difficult to believe that AA would not have assisted the appellant if he approached them as claimed. Many alcoholics continue to attend AA meetings for many months or years after they have stopped drinking. However, I accept that the appellant appears to be sincere in his intention not to drink. Given that it was a contributing cause to his offending behaviour, the fact that there is no evidence of re-conviction, or any other suggestion of offending behaviour caused by alcohol abuse, does tend to support the appellant’s assertion that he is serious about maintaining his sobriety.

25. A wider consideration of the appellant’s personal circumstances is also needed in order to assess whether he continues to pose a genuine, present and sufficiently serious threat.

26. It is not disputed that there have been further developments in the appellant’s personal circumstances since the original removal decision was made. The appellant made further representations, which amongst other things, raised serious health issues. I understand that there are ongoing proceedings relating to a clinical negligence claim regarding the medical treatment the appellant received while serving a sentence of imprisonment in 2010. However, for the purpose of this appeal, it is not disputed that the appellant was eventually diagnosed with cancer, which led to the amputation of his leg in November 2013. The respondent made a supplementary decision on 17 September 2014. She concluded that adequate healthcare was likely to be available in Lithuania and that removal would not amount to a breach of Article 3 of the European Convention on Human Rights.

27. By the date of the hearing there had been further developments relating to the appellant’s health. A letter from the Royal National Orthopaedic Hospital to the appellant’s GP dated 11 August 2016 stated that he has been diagnosed with metastatic spindle cell sarcoma affecting his left upper arm. This appears to be linked to the original cancer. The hospital advised that the sarcoma may be amenable to surgical excision. Other evidence shows that the appellant has had subsequent appointments at the hospital. At the hearing, the appellant said that he had an appointment that afternoon. He is awaiting treatment. The documentary evidence says little about the appellant’s prognosis. However, the fact that he was diagnosed with cancer, which was sufficiently serious to require the amputation of his leg, and that there is now a secondary incidence in his arm, clearly is a serious matter.

28. I have also considered other evidence relating to developments in the appellant’s personal circumstances since the removal decision was made. It is not disputed that the appellant is in a relationship with Edita Zilute. Ms Zilute is also a Lithuanian national. They first met around six years ago in Wales. They dated for a while but then the appellant moved to London. They renewed their relationship after the appellant was released from prison in 2015. The appellant says that he has been living with Ms Zilute since April 2016.

29. Ms Zilute has a four-year-old daughter from a previous relationship. The child’s father is also Lithuanian. At the hearing Ms Zilute told me that the child has regular contact with her father, who lives in Peterborough. She visits Peterborough every week. She works in Peterborough and stays with her parents while she is there. However, this evidence contrasted with what she said in her witness statement, prepared in July 2016, in which she stated that the child had very little contact with her father. While I have some doubt as to the extent of the contact that the child has with her father, given that Ms Zilute spends a good part of her week in Peterborough, I accept that he may have some limited contact with the child.

30. It appears that the appellant has now taken a parental role in relation to the child. He lives in the same household and forms part of a single family unit. On 09 October 2016 Ms Zilute gave birth to their first child. The appellant told me that he did not want to bring up his child in the same way he was. He has no intention of committing further offences and recognises that he has responsibilities towards his family. He says that his medical problems and his disability mean that he is highly unlikely to commit further offences. Most of the offences concerned driving offences or theft of cars, which would now be far more difficult for the appellant to carry out in practical terms although the fact that he has had a leg amputated will not necessarily preclude him from being able to drive an automatic car in future.

31. The appellant and Ms Zilute are both Lithuanian nationals but claim that they have very little to return to in Lithuania. The appellant presents a picture of a difficult family background. Many of his siblings left Lithuania, like him, to find work. He left Lithuania aged 19 years old and has spent most of his adult life in the UK. He has had no contact with his parents for many years. It is not argued that his medical condition, in itself, engages human rights issues, but clearly it does have an impact on the appellant’s ability to support himself in Lithuania, where he says employment opportunities are more limited than in the UK. While it is not suggested that medical treatment would not be available in Lithuania, it seems clear that the appellant is well integrated into ongoing care in the UK, both in terms of physical and psychological rehabilitation following the amputation. He is also receiving ongoing treatment relating to the sarcoma in his arm.

32. I take into account the persistent nature of the appellant’s past offending in relation to driving offences. I also take into account the fact that the convictions he received in 2012 were for offences of an altogether more serious nature. This was reflected in the length of the sentence of imprisonment. However, the evidence also shows that the appellant’s personal circumstances have changed markedly since he committed those offences. He says that a lengthy period in prison has given him time to reflect and ‘grow up’. He is now in a stable relationship with parental responsibility for two children who form part of the family unit. Although he continues to face challenges relating to his health, his disability, and his continuing medical problems, appear to have drawn him away from his previous lifestyle. It is difficult to assess whether the appellant’s intention to stay sober will continue, but there is no evidence to suggest that he has been involved in any further criminal activity arising from alcohol abuse in the year and a half since he was released from prison.

33. The appellant is now assessed as presenting a low risk of reconviction. His offender manager explained that the assessment of medium risk of harm to the public generally indicates that there are no identifiable indicators of risk of serious harm. The offender has potential to cause serious harm but is unlikely to do so unless there is a change in circumstances. At the current time the appellant would appear to be in a far more stable situation that he was before. The appellant has engaged with supervision and rehabilitation. He also has ongoing support from a psychologist and medical professionals. He has the support of Ms Zilute, who is exercising her rights of free movement in the UK. She also has close family members here. Although it would be possible, in practical terms, for Ms Zilute to return to Lithuania with him, it would be at the cost of her being able to exercise her rights of free movement. She would be separated from the regular contact she has with close family members in the UK. Although I have expressed some reservations about the extent of the contact that her oldest child has with her biological father, I accept that the child is likely to have some contact, even if it is not as regular as Ms Zilute claimed at the hearing. Given that Ms Zilute is the primary carer it would not be in the child’s best interests to return to Lithuania with her mother, where any contact with her biological father is likely to be even more remote and sporadic.

34. After having considered the evidence as a whole I am satisfied, despite his history of offending, that the appellant is not likely to pose a genuine, present and sufficiently serious threat of re-offending in the UK. At the current time his position is drastically different from the circumstances that led to the more serious offences. His continued sobriety, and the support network that he currently has in the UK, are likely to act as protective factors against the likelihood of reoffending. At the date of the hearing, I am satisfied that his removal would not be proportionate.

35. However, the appellant should not be complacent about his situation. He continues to face challenges relating to his health, which might place him under stress. Judge Blackford expressed some concern that he might turn to alcohol as a means of coping. While I do not doubt the sincerity of the appellant’s assertion that he will not reoffend he will need to bear in mind that any change in his current circumstances could increase the risk he might pose to the public. If he does not maintain his current path towards rehabilitation, and commits further offences, it will be open to the Secretary of State to review whether removal is justified.

36. For the reasons given above I conclude that the appellant’s removal would not be in accordance with the EEA Regulations 2006.

DECISION

The appeal is ALLOWED under the EEA Regulations 2006

Signed Date 06 March 2017
Upper Tribunal Judge Canavan