Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: da/00298/2013

THE IMMIGRATION ACTS

Heard at Field House
Determination Promulgated
On 2 July 2013
On 15 July 2013

Before

UPPER TRIBUNAL JUDGE CRAIG

Between

RUI EDGAR FERNANDES

Appellant
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT

Respondent

Representation:

For the Appellant: Mr A Joseph, Counsel, instructed by Fadiga & Co
For the Respondent: Mr G Saunders, Home Office Presenting Officer

DETERMINATION AND REASONS

1. The appellant, who was born on 4 April 1986, is a citizen of Portugal, and thus an EEA national. He now appeals against the decision of the First-tier Tribunal which dismissed his appeal against the respondent's decision to make a deportation order against him.
2. The background to this appeal can be summarised briefly. He arrived in this country in the autumn of 2002 since when he has worked in this country regularly and has had relationships here. Since August 2010, he has been in a relationship with a Miss Williams.
3. Regrettably, he committed criminal offences which led to the respondent's decision to deport him. On 25 January 2012 he was convicted of affray. The OASys Report, the relevant part of which is set out at paragraph 45 of the determination of the First-tier Tribunal, states that the appellant
“... was one of six males who approached three males and a female in Taunton Town Centre. They were followed by the cameras and recorded assaulting the victims (unprovoked attacks). He continued to assault them when they fell to the floor. [The appellant] said he had been drinking with friends before the assault and cannot remember who started it or how it happened.”
4. Then on 9 May 2012 he pleaded guilty to four offences of supplying Class A drugs, possession of cannabis and possession of an offensive weapon, for which he was sent to prison for two years in respect of the offence of supplying drugs. He was also sentenced to three months’ imprisonment for the possession of an offensive weapon and for the previous offence of affray (this latter sentence was imposed following his breach of the community order which had previously been made). As referred to at paragraph 48 of the determination of the First-tier Tribunal, the trial judge described the appellant as “a commercial street dealer”.
5. The respondent made a decision to deport this appellant, and his appeal against this decision was dismissed by the First-tier Tribunal (First-tier Tribunal Judge Troup and Mr G H Getlevog) following a hearing at Newport Crown Court on 13 March 2013.
6. It is now common ground that as at the date of the respondent's decision, this appellant had been present in this country for a period of over ten years. It is also the case that he had been here for under ten years as at the date when he was sent to prison. The findings of the panel with regard to these dates has not been challenged by either party. The panel found that the appellant arrived in this country in October 2002, and was still here ten years later, that is before the respondent's decision had been made on 28 January 2013, but he had been here for less than ten years before he was sent to prison on 8 June 2012.
7. Although the appellant’s dates of employment are not entirely clear, the panel found on the balance of probabilities that the appellant had been exercising treaty rights in this country and that he had accordingly acquired a permanent right of residence after five years’ continuous residence in the UK by virtue of Regulation 15 of the 2006 EEA Regulations in about 2007. This meant that for the purpose of consdering whether the deportation decision was justified, the relevant test was whether it was justified “on serious grounds of public policy or public security” having taken into account the matters set out in Regulation 21(5)(6). However, because the panel concluded that for the purposes of these Regulations time in prison did not count, the appellant had not been continuously resident in the UK for ten years for the purpose of paragraph 21(4) of the Regulation, and so it was not necessary for the respondent to establish that there were “imperative grounds of national security” justifying her decision. It is now common ground between the parties that the respondent would not be able to establish that removal was justified on “imperative grounds of public security”.
8. Having considered all the evidence carefully, the panel found that deportation was indeed justified on serious grounds of public policy or public security.
9. The appellant now appeals against this decision, with permission, on a number of grounds. The grounds can be summarised as follows. First, it is asserted that for the purpose of establishing whether the level of protection afforded to him under the 2006 Regulations should be commensurate with someone who has been here ten years, the period he spent in prison before the decision was made should be counted, as he was continuing to integrate in this country during that period. Secondly, it is said that the Tribunal’s finding that there were serious grounds of public policy or public security sufficient to justify the appellant's deportation, was wrong, essentially because its findings of fact could not be sustained. Thirdly, it is asserted that the Tribunal's consideration of the appellant's Article 8 rights was insufficient.
The Hearing
10. I heard submissions on behalf of both parties, which I recorded contemporaneously. As these are contained in my Record of Proceedings, I shall not set out these submissions verbatim, but shall refer below only to such parts of the submissions as are relevant for the purposes of this determination. I have, however, considered fully everything which was said to me during the course of the hearing as well as all the documents contained within the file.
11. On behalf of appellant, Mr Joseph accepted that the determination of the First-tier Tribunal was very careful in many respects, but it was asserted that nonetheless the panel had failed adequately to consider the European case law or the European dimension of this case. He referred to authorities which had been cited in a detailed skeleton argument which he had prepared for that hearing. His primary submission was that the panel should have approached this appeal on the basis that the respondent needed to show that there were “imperative grounds of national security” justifying the decision to deport, because the period spent in prison should count towards the necessary ten year period, as the appellant would be continuing to integrate into British society during that period. Further, the panel had not considered integration in general under Regulation 21(6). In this case, this appellant was fully integrated into British society. Mr Joseph acknowledged that the panel had said that it had considered whether or not the appellant was integrated into society, but there was no specific finding that he was not.
12. Mr Joseph queried whether the panel had been entitled to reject the NOMS report that found that the appellant represented a “low” risk of re-offending, but accepted that it had given reasons for its finding. It was also of note that the evidence of family members had been inconsistent.
13. On behalf of the respondent, Mr Saunders relied on the Tribunal decision in Jarusevicius (EEA Reg 21 – effect of imprisonment) [2012] UKUT 00120, in particular at paragraph 49. It was asserted that unless and until the ECJ tells us differently, time spent in prison did not count towards the ten years’ residence necessary before the respondent was required to rely on imperative grounds of national security in order to justify deportation.
14. As to the facts, both with regard to the appellant's circumstances here, which went to whether he was integrated, and to the likely circumstances which he would meet in Portugal, this was a careful and thorough determination which reached findings which were open to the panel. There was no material error of law in the determination.
Discussion
15. It might well be that further guidance will be given by the European Court of Justice with regard to the primary issue in this case, which is whether or not time spent in prison should count towards the ten years’ residence necessary before an EEA national can be said to be sufficiently integrated that he should only be deported on imperative grounds of national security. However, the present jurisprudence appears to be as follows. Once someone has been present in this country, exercising treaty rights, for a continuous period of over five years, he or she will have acquired a right of permanent residence. That right will not be acquired if before the end of that five year period he goes to prison. Further, for the purpose of establishing permanent residence, the clock will begin again on his release from prison. In this case, this appellant had undoubtedly acquired a permanent right of residence.
16. The position with regard to whether or not the clock will stop in terms of the period necessary to establish sufficient integration that imperative grounds of public security will be required to justify deportation is less clear. Certainly, the Tribunal in Jarusevicius [EEA R 21 – effective imprisonment) [2012] UKUT 00120 (a case in which the Tribunal reviewed the previous European decisions) found that for the purposes of Regulation 21(4)(a) of the 2006 Regulations (that is ten years' residence) continuity of residence would not be broken by a period of imprisonment (at paragraph 9 of its determination). This the Tribunal considered was the effect of the judgment of the European Court of Justice in Tsakouridis. However, the Tribunal in Jarusevicius at paragraph 49 stated as follows:
“49. We informed the parties, that we had additionally considered LG and CC (Italy) [2009] UKAIT 00024 that held that time spent in prison did not count towards the ten years’ residence which would give an EEA national a higher level of protection against expulsion (Regulation 21(4)). ...”
While the Tribunal considered (at paragraph 60) that the conclusion of the AIT in LG and CC “that service of a sentence of imprisonment in the ten years before the decision to deport prevents the greater protection of ‘imperative grounds’ arising” was now in doubt, the Tribunal does not appear to have doubted that in itself the time spent in prison did not count towards the ten years’ residence required. In other words, while it might not stop the clock running with regard to further periods in this country after release from prison, the time in prison itself would not be counted.
17. This aspect was considered further by the Court of Appeal in FV (Italy) [2012] EWCA Civ 1199. At paragraph 85, Pill LJ stated as follows:
“Following the test in Tsakouridis, periods of absence within the ten years immediately preceding the decision do not of themselves disqualify and neither does the period of imprisonment. The period of imprisonment is, however, relevant as a factor to be considered when deciding upon integration at the date of decision. Integration will not normally be established by time spent in prison [my emphasis] save that it may have limited relevance by contributing to the severance of links with the country of origin. If integration has been established prior to the custodial term, it will not necessarily be lost by that term.”
18. In my judgment, in this case, where the appellant remained in custody until the date of decision, there is no basis on the facts for suggesting that the time actually spent in prison should count towards the ten year period necessary for integration to be established. It follows that for the purposes of this appeal, the First-tier Tribunal was correct to consider the appellant as someone who had established a right of permanent residence, but who had not established the ten years’ residence which would be necessary before his deportation had to be justified on imperative grounds of public security.
19. Insofar as Mr Joseph sought to argue that the First-tier Tribunal did not properly consider whether or not the appellant had been integrated, as it was required to do under Regulation 21(6), that is clearly not correct. At paragraph 56 of the panel’s determination, it is stated in terms that the panel had “taken into account the considerations detailed in Regulation 21(6)”. In other words, the panel had considered the level of this appellant’s integration. Mr Joseph’s response was to say that it was one thing for the panel to say this had been considered, but another that it actually had. Also, the panel had not specifically found that he was integrated. In my judgment, it is clear from the findings that the panel approached this case on the basis that this appellant had a relatively high level (but under 10 years) of integration into British society, which was a factor weighing against deportation, but none the less considered that the factors justifying his deportation outweighed this factor, and the other factors which were in the appellant's favour. Among the other factors considered was what the Tribunal found were the appellant's links with Portugal, which are set out within the panel’s determination.
20. Essentially, having considered, correctly, that having acquired a permanent right of residence in the UK, the appellant could only be deported on “serious grounds of public policy or public security”, and having taken into account all the factors, and in particular those listed at Regulation 21(6) of the 2006 Regulations, the panel considered that deportation was appropriate and proportionate. At paragraph 56 the Tribunal found that “having taken into account the considerations detailed in Regulation 21(6), we find that the appellant's personal conduct and the risk of reoffending are together a sufficiently serious threat to the interests of society here to justify his removal”.
21. Then, with regard to the “European dimension”, the panel went on to find that “if, following release, the appellant were to remain in the UK, there is a greater risk of re-offending here than there would be if he were to return to Portugal”. The reasons given by the panel for so finding are compelling and are set out clearly and carefully within the determination.
22. Although the consideration of Article 8 as a stand alone ground of appeal is short, in light of the findings already made, this is entirely adequate.
23. In short, the determination of the First-tier Tribunal is careful, detailed and thorough, and the panel made findings which were open to it and the determination contains no material error of law. It follows that this appeal must be dismissed.
Decision
There being no material error of law in the determination of the First-tier Tribunal, the appellant’s appeal is dismissed.

Signed: Date: 12 July 2013

Upper Tribunal Judge Craig