Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: EA/00667/2015

THE IMMIGRATION ACTS

Heard at Glasgow
Decisions and Reasons Promulgated
On 25 October 2016
On 27 October 2016

Before

UPPER TRIBUNAL JUDGE MACLEMAN

Between

IMMIGRATION OFFICER, Aberdeen Airport
Appellant
and

MARIUS [R]
(ANONYMITY DIRECTION not made)
Respondent

For the Appellant: Mr M Matthews, Senior Home Office Presenting Officer
For the Respondent: no appearance

DETERMINATION AND REASONS
1. The parties are as described above, but the rest of this decision refers to them as they were in the FtT.
2. The appellant is a citizen of Lithuania, born on 7 December 1985.
3. The appellant arrived at Aberdeen airport on 5 August 2015 and sought admission to the UK under European Community law, in accordance with the Immigration (European Economic Area) Regulations 2006. The Immigration Officer served him with a notice stating that on 18 March 2010 he had been convicted of drugs offences in Lithuania for which he received a sentence of 2 years and 3 months imprisonment. "Whilst you have a partner in the UK I am satisfied that your crimes are of sufficient seriousness that refusal of admission is justified ? I refuse admission ? under regulations 19 and 21 ?".
4. The appellant was removed in accordance with directions on the same day to Lithuania.
5. The appellant appealed to the first-tier tribunal, stating these grounds, "I can't be in my country because my wife ? is in the UK (Peterhead) and we have a life there and she is pregnant now (2 months) we were dreaming to live in the UK all our life. We have one child (born 8 November 2011) ? to be going to school in Peterhead. If I am not able to live in the UK we will have to divorce ? Wife and I have jobs in Peterhead and in Lithuania I don't have life, even my father lives in Peterhead. I made mistakes ? but I was in jail for that from 9 April 2010 to 9 July 2012."
6. In a "refusal report" dated 18 September 2015 the immigration officer provides some further detail. Home Office checks revealed that the appellant had been charged with "unlawful possession of narcotic or psychotropic substance for the purposes of distribution on 4 June 2009". He was sentenced to years and 3 months imprisonment on 18 March 2010 and released on 9 July 2012. He had been travelling with his partner and her son (both Lithuanian citizens). He stated at interview that on release from prison he travelled to the UK in September 2012 with his partner and child to start a new life, and had been in continuous employment in Peterhead. His partner also worked. While living in the UK he had been charged and served with a fixed penalty notice for breach of the peace (10th February 2014) and cautioned for domestic assault (10th February 2015). He also said at interview that he been fined for not wearing a seatbelt and for parking in a council permit parking area.
7. First-tier tribunal judge Handley dealt with the case "on the papers", as requested by the appellant, and allowed his appeal by decision promulgated on 18 March 2016.
8. At paragraph 13 the judge said that he had limited information about the offence in Lithuania, and went on "? the evidence does not suggest that it was a particularly serious crime (as opposed to crimes such as rape, murder or drug smuggling). The evidence does not suggest that he represents a genuine present and sufficiently serious threat to one of the fundamental interests of society".
9. The judge then related matters since the appellant arrived in Scotland. At paragraph 15 he took account of the fact that the offence in Lithuania was committed some time ago, and the appellant's explanation that he came to the UK to create a future here, that he has had a child and his wife is expecting another. "It is not disputed that he and his wife have been employment in the UK. I no reason to doubt that the appellant has a family life in the UK with his wife and child and has been making efforts to support them. I conclude that the appellant does not represent a genuine present and sufficiently serious threat to the public of the UK. I am satisfied that removal was not justified on the grounds of public policy, public security or public health in accordance with regulation 21. I allow this appeal under the regulations".
10. The respondent's grounds of appeal to the upper tribunal state that the judge's conclusion that the appellant's offence was not a particularly serious crime "? is flawed and not adequately or rationally reasoned? The fact that the appellant's offence does not come within the category stated by the judge cannot mean that the offence was not particularly serious? The judge wrongly belittled the gravity of the appellant's crime in Lithuania and this clearly coloured his conclusions. Furthermore, the appellant clearly came to the attention of the police for other, albeit smaller crimes in the UK. The judge again belittles and disregard such incidents and does not take the very real propensity to offend into account?"
11. On 9 August 2016 FtT Judge Kimnell refused permission, observing that the respondent left the judge with limited information about the offence, and that the fine for breach of the peace in the UK was not a criminal conviction but was dealt with by way of a fixed penalty.
12. The respondent renewed the application to the upper tribunal. On 2 September 2016 UT Judge Rimington granted permission, finding it arguable that the judge had not adequately reasoned why the supply of drugs was not a serious crime, a sentence of imprisonment of 2 years and 3 months having been imposed.
13. Mr Matthews submitted thus. It was an error to describe the offence as "not particularly serious", sufficient to require a fresh decision to be made. The appellant must have accepted that he committed offences in the UK for either a fixed penalty or a caution to have been issued. This was not similar offending, but his history in the UK was far from unblemished, or to put it another way, he was no stranger to the authorities. The fact that his conviction did not come to light when he first entered the UK made no difference. The judge correctly identified the test as whether the appellant currently represented a genuine present and sufficiently serious threat to the fundamental interests of society, but came to the wrong answer. A decision should be substituted, dismissing the appellant's appeal.
14. I reserved my decision.
15. The respondent's grounds and submissions show that the judge erred in law by describing the offence in Lithuania as "not particularly serious". It was not analogous to murder or rape, but serious offending is not confined to the very top end of the range. The nature of the offence and the substantial sentence imposed show that it was well within the bracket of serious offending. That did not mean there could be only one outcome, but the misstatement is so central that decision cannot safely stand.
16. The criticism that the judge belittled the adverse history in the UK is not so well taken. The fixed penalty and caution do not reflect matters of anything like the same seriousness. The seat belt and parking matters do not affect the issue.
17. The information recorded in the papers is a little disjointed. For example, it is not clear if it is the appellant's father or his partner's father who lives in Peterhead, or both, and it seems his mother lives in Lithuania. The older child seems to be the child of his partner and not his biological child. There is some information about the offence, although only from the appellant in the record of the interview at the airport, and rather vague: he says he was selling cannabis, "2 gram", for 6 months. However, he seems to have been frank with the interviewing officers and I see no reason to doubt that circumstances have been as he describes, giving a clear enough overall picture: a serious offence in Lithuania, now over 7 years ago; a family move to the UK after release, and since then living in family and in employment; no further significant offending, but minor encounters with the authorities. I cannot agree that these encounters demonstrate a "very real propensity to offend". The appellant has family, employment and immigration incentives to continue to refrain from further offending. I find the case quite finely balanced. The respondent's decision was taken for respectable reasons, but the offence by itself cannot justify the decision, and I now have to make the best assessment I can, based on all available information. I find that the factors pointing away from ongoing risk tip the balance away from the appellant's presence in the UK being a genuine, present and sufficiently serious threat to the fundamental interests of society.
18. The determination of the First-tier Tribunal is set aside, but the decision substituted is that the appeal, as brought to the FtT, is again allowed.

26 October 2016
Upper Tribunal Judge Macleman