Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: DA/01006/2012

THE IMMIGRATION ACTS

Heard at North Shields
Determination Promulgated
On 21st June, 2013
On 5th July,2013

Before

Upper Tribunal Judge Chalkley

Between

SECRETARY OF STATE FOR THE HOME DEPARTMENT
Appellant
and

antonio manuel arjona serrano
(no anonymity order made)
Respondent

Representation:

For the Appellant: Mr C Dewison, a Home Office Presenting Officer
For the Respondent: Mr R Selway instructed by Halliday Reeves Law Firm

DETERMINATION AND REASONS

1. The appellant is the Secretary of State for the Home Department who, on 1st November, 2012 decided to make a deportation order against the respondent. In doing so, the appellant said:-

“On 15th November, 2011 at Teeside Crown Court, you were convicted on production of class B controlled drug – cannabis. The Secretary of State has considered the offence of which you have been convicted and your conduct, in accordance with Regulation 21 of the Immigration (European Economic Area) Regulations 2006. She is satisfied that you would pose a genuine, present and sufficiently serious threat to the interests of public policy if you were allowed to remain in the United Kingdom and that your deportation is justified under Regulation 21. She has therefore decided under Regulation 19(3)(b) that you should be removed and an order made in accordance with Regulation 24(3) requiring you to leave the United Kingdom and prohibiting you from re-entering while the order was in force. For the purpose of the order Section 3(5)(a) of the Immigration Act 1971 will apply.

The Secretary of State proposes to give directions for your removal to Spain, the country of which you are a national or which most recently provided you with a travel document.”

2. The respondent gave Notice of Appeal and his appeal was heard by a panel of the First-tier Tribunal (First-tier Tribunal Judge Sacks sitting with Mrs R M Bray).

3. The First-tier Tribunal allowed the respondent’s immigration appeal and also allowed the respondent’s Article 8 European Convention for the protection of Human Rights and Fundamental Freedoms, human rights appeal.

4. The appellant challenged the determination. The first challenge, under the Regulations, noted that in paragraph 11 of the determination, the panel notes that the risk of the respondent re-offending “is very low”. However, the grounds point out that the respondent was assessed as being at a low risk of re-offending, not “very low”. The panel have given no reasons for departing from the NOMS assessment and, it is suggested, has erred. It also suggested that the panel failed to consider the risk of harm of any re-offending or the Secretary of State’s view of crimes involving drugs and the serious effect these have on society. While the panel noted the levels of protection against removal under Regulation 21 for deportation, it has failed to note that the respondent did not have the benefit of permanent residence with the higher level of protection this affords but the lowest level such that the Secretary of State simply has to show that there were grounds of public policy, public security or public health. The panel’s failure to look at the test to be applied, particularly when it took into account the determination in the case of Roberto Spiniello [1996] IAT 13916 to which the 2006 Regulations did not apply, arguably flawed the panel’s assessment.

5. The second challenge dealt with the Tribunal’s decision in respect of the respondent’s Article 8 rights. The grounds suggested that the Immigration Rules reflected the Secretary of State’s view as to where the balance lay in between the individual’s rights and the public interest. In considering proportionality the Tribunal should have taken account of the Secretary of State’s view, endorsed by Parliament, on how public policy considerations are weighed against individual family and private life rights. The Tribunal further erred by failing to consider any case law, particularly OH (Serbia) [2008] EWCA Civ 89.

6. Mr Dewison drew my attention to the fact that the respondent had been assessed as being of “low” risk of re-offending even though the pre-sentence report described the respondent as representing a very low risk of harm and presenting an extremely low risk of re-offending. The OASys Report is significant, since it was compiled, of course, towards the end of the respondent’s sentence as opposed to the pre-sentence report which was prepared to assist the court in sentencing the respondent. Even someone who is at low risk of re-offending still represents a risk, he said. The Tribunal had not set out the test and have made no mention of Regulation 21(1)-(4). They have not therefore considered the different levels of protection. The case they do refer to of Spiniello is of no application since it was a case decided under the 2006 Regulations.

7. As to the Article 8 appeal, the panel had no regard to OH (Serbia). In considering the respondent’s Article 8 appeal they said, at the bottom of page 8 and the top of page 9, “we are satisfied that the appellant has a level of relationship with his fiancée and children albeit that there is very little information concerning this”. The Tribunal just simply had insufficient evidence to make any such finding and the Tribunal’s assessment of the Article 8 case is deficient also. He invited me to allow the Secretary of State’s appeal.

8. For the respondent, Mr Selway told me that the grounds failed to disclose any error of law. The reference to “very low” in describing the respondent’s risk of re-offending is a reference to the pre-sentence report but page 19 of the OASys Report shows that the predicted scores as expressed as a percentage are 6% in year 1 and 11% in year 2. The category banding is described as being “low” but only because there are three bands, low, medium and high. If there was a “very low” band then this respondent would surely be in it. The Tribunal were entitled to describe the risk of the respondent re-offending as being very low. It is at the low end of low.

9. So far as the test under the Regulations is concerned, the Tribunal did set out the test at the beginning of their determination. At paragraph 2 they refer to Regulation 21 and say that the Secretary of State was satisfied that the respondent would pose a genuine present and sufficiently serious threat to the interests of public policy, if he were allowed to remain in the UK. That was the correct test. Spiniello does predate the current Regulations, but it was the same test under the earlier Regulations also. Looked at in the round there is no error in assessing the Article 8 claim.

10. Responding, Mr Dewison confirmed that in the event that I was satisfied that there was no error on the part of the Tribunal in considering the issue of the deportation order then whether or not there is an error on their part in considering the respondent’s Article 8 appeal is immaterial.

11. I believe that the respondent’s challenge is no more than an expression of disagreement with the panel’s determination. At paragraph 11 the panel said this:-

“We have had regard to the reports that are within the papers that we consider with regard to the appellant’s offences and his propensity to reoffend. The risk of reoffending is very low. We take into account that he pleaded guilty to this offence, that he had no previous convictions and that at the time he was in a state of depression having financial problems because of his drugs habit we are satisfied he has now under control.

The likelihood of the [respondent] offending is a significant factor in considering whether it is proportionate in all the circumstances to deport this [respondent]. Regulation 21 of the Regulations identifies the criteria that we must have regard for. We do not intend to reiterate verbatim Regulation 21 but have had regard to that Regulation and note that a person’s previous criminal convictions do not in themselves justify a decision to deport.

We are aware that we must consider the principle of proportionality and must consider the conduct of the [respondent] and whether he represents a genuine present and sufficiently serious threat affecting one of the fundamental interests of society, we are aware that matters isolated from the particulars of the case or which relate to considerations of general prevention do not justify a decision to deport.

We are aware that we must take into account the age, state of health, family and economic situation of the [respondent] and his length of residence in the United Kingdom and his social and cultural integration into the United Kingdom and the extent of his links with his country of origin. We confirm that we have had consideration for all these relevant factors. We note the case of Roberto Spiniello and the fact that that appeal succeeded and that that appellant had committed far more serious and heinous offences than committed by this [respondent], the offence the [respondent] was convicted of is not in our opinion one that is found at the top end of the sale of offending.

We are satisfied that this [respondent’s] case is not exceptional, it would not cause such public revulsion as to justify removal and we are satisfied that the [respondent’s] personal conduct does not represent a genuine present and sufficiently serious threat to one of the fundamental interests of society such as to justify the [respondent’s] deportation from the United Kingdom.”

12. The pre-sentence report describes the respondent’s risk of re-offending as being very low, but the OASys Report describes it as low. However, I think there is merit in the suggestion made by Mr Selway that when one looks at the predicted scores as a percentage for year 1 and year 2 as being 6% and 11%, then one can understand why the panel described the risk as being “very low”. It is described as being low because there are only three bands, low, medium or high. The risk in the respondent’s case is clearly at the low end of the low band. I do not believe that the panel erred in describing it as being very low, because it is; anything below 15% could, in my view, accurately be described as being “very low”.

13. The Tribunal considered the offence for which the respondent was convicted and were entitled to express the opinion that it was not at the top end of the scale of offending. It involved class B drugs and, quite rightly attracted a two year prison sentence, but it would have been far more serious had it involved a class A drug or if it had involved violence. I do not believe that the panel have failed to appreciate the seriousness of the offence and I believe they were entitled to say what they did in the penultimate and in the ultimate paragraph of paragraph 11 of the determination which I have quoted above.

14. It is true that the panel had not set out Regulation 21, but they have demonstrated both in paragraph 2 and paragraph 11 of the determination, that they are aware of the relevant test applicable in this appeal and that they have applied it.

15. I have concluded, therefore, that there was no error on the part of the Tribunal in deciding the respondent’s deportation appeal.

16. Mr Dewison, quite properly, agreed that any error that there might be in the panel’s consideration of the respondent’s Article 8 appeal would be irrelevant in the event that I found there was no error of law in the panel’s consideration of the respondent’s deportation appeal.

17. I find that the panel did not err in relation to their consideration of the respondent’s deportation appeal and I uphold it. As a result, it is not necessary for me to consider whether the panel erred in its consideration of the respondent’s Article 8 appeal.

Upper Tribunal Judge Chalkley