The decision



Upper Tribunal
Appeal Number: UI-2021-001464
(Immigration and Asylum Chamber)
On appeal from EA/00920/2020


THE IMMIGRATION ACTS



Heard at Bradford IAC
On the 20 July 2022


Decision & Reasons Promulgated
On the 27 October 2022


Before

UPPER TRIBUNAL JUDGE HANSON
DEPUTY UPPER TRIBUNAL JUDGE SAFFER


Between

KLISMAN SYKAJ
(Anonymity direction not MADE)
Appellant
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent


Representation:
For the Appellant: Mr Toal of Counsel
For the Respondent: Miss Young a Senior Home Office Presenting Officer


DECISION AND REASONS
1. The appellant is a citizen of Albania born on 26 May 1991. He appeals against the decision of First-tier Tribunal Mensah, promulgated on 11 September 2021, dismissing his appeal against the refusal of a residence card as confirmation of a right of residence as an extended family member under Regulation 7, 8, 24, and 27 of the Immigration (EEA) Regulations 2016 [‘2016 Regulations’].
The appellant’s appeal in summary
2. The appellant brought his appeal against the Respondent’s decision to refuse him a residence card as an extended family member of an EEA national. The reasons for the refusal were:
a. Due to his criminal conviction in 2015 of possession with intent to supply class A drugs for which he received a sentence of 3 years in prison.
b. It was not accepted that he was in a genuine relationship with his partner.
c. It was not accepted that his partner was a qualified person.
3. The appellant appealed and raised additional grounds on refugee and human rights grounds given the Respondent had served him with a s.120 notice (One-Stop Notice under section 120 of the Nationality Immigration and Asylum Act 2002).
Judge Mensah’s summary of issues
4. The Judge stated at [9] that:
“Therefore it was agreed this case involved the following issues,
(i) Whether the Appellant has rebut the statutory presumption under s72 of the Nationality, Immigration and Asylum Act 2002?
(ii) Whether the Appellant has established a well-founded fear of serious harm on account of his fear of criminal gangs in Albania who he says have threatened to kill him and his brothers on account of his father’s former work in Albania?
(iii) If the Appellant has not rebut the s72 presumption, whether in any event he has established a real risk of serious harm on account of the fear of the criminal gangs in Albania as set out in his asylum claim?
(iv) Whether the Appellant is in a genuine and subsisting durable relationship with his Romanian partner?
(v) Whether the Sponsor is a qualified person?
(vi) Whether the Appellant’s entitlement to a Residence card fails under 320(2) of the Immigration Rules, now set out in Part 9 of the Rules but effectively the same test applies for the purposes of this appeal and that is where the applicant’s presence in the UK is not conducive to the public good because of their conduct, character, associations or other reasons (including convictions which do not fall within the criminality grounds) or where he has been convicted of a sentence of more than 12 months and/or committed an offence which causes serious harm?
(vii) Whether the Appellant’s entitlement to a Residence card fails under Regulation 27 of the said EEA Regulations 2016?
(viii) Whether the Appellant has established a family and private life in the United Kingdom?
(ix) Whether the Appellant’s removal would be disproportionate under Article 8 taking into account the public interest under Section 117B and 117C of the Immigration Act 2014?
(x) Whether the fact the Appellant has subsequently married his partner alters any of the above and to include whether he should be issued a residence card as a family member under regulation 7?”
The Appellant’s grounds for Permission to appeal
5. It was accepted at [4] that:
“Before the FTT the issues were as set out in the determination at paragraph 9. Save for 9(vi) they are all agreed. There was no discussion at the FTT in relation to paragraph 320(2) of the immigration rules. They are completely irrelevant to the case before the FTT as they have no relevance to the decision under the EEA Regulations. They are plainly not relevant to the question of whether the appellant is a refugee and nor are they relevant to the issue under Article 8 either given that the provisions of s117C (of the Nationality Immigration and Asylum Act 2002) would apply in any event.
5. The FTT found that the appellant and his wife were married and that they were in a genuine and subsisting relationship (paragraph 45 and 47). The EEA Regulations were therefore engaged. She also found that the appellant’s wife was a qualified person (paragraph 45 and 47).
Grounds of appeal
i) Misdirection and misapplication of law
6. The FTTs approach in her determination has led to difficulties in her assessment of the case and evidence. Notwithstanding submissions made to the contrary, she has embarked on the assessment under refugee law first, before then turning her mind to the EEA appeal. Such an approach is erroneous as the Appellant’s primary case was that under the EEA regulations. The decision appealed against is the refusal of a residence card, it is only if that appeal is rejected then the FTT should then turn its mind to the other grounds of appeal relied on. This approach may not, in of itself, by a material error, it is nevertheless an error which has impacted the overall assessment and has contributed to the error in the EEA Regulation assessment.
7. The correct approach on EEA grounds is to consider whether, once the appellant has established the relationship with an EEA national and that she is a qualified person then the matter must be considered through the prism of Regulation 27. This is because any 3 decision taken on public policy grounds under the EEA Regulations must comply with that regulation.
8. The first task for the FTT was therefore to consider whether he was a genuine, present and sufficiently serious risk under Regulation 27(5)(c). The FTT did not do that in this case.
9. The FTT first finds at paragraph 48, the Respondent has shown that his presence in the UK is not conducive to the public good. This is irrelevant for the matter under the EEA Regulations, the finding plainly infects that at paragraph 49 in relation to the Regulation 27(5)(c) test.
10. The structure of this decision impermissibly amalgamates the asylum claim and the EEA case, both in terms of the credibility findings but also in terms of how the considerations impact each other. They are two distinct legal assessments and the Judge’s approach unlawfully conflates one into the other meaning that the resultant decision is infected by immaterial findings.
ii) Mistake of fact in credibility findings
11. The judge relies on the negative credibility findings that she has made to find against the Appellant. The Appellant strongly refutes this approach as being a lawful consideration of the relevant test. Notwithstanding that, however those credibility findings are confusing and strewn with errors in relation to the accepted chronology and a failure to read the documents with the required scrutiny in that the Judge has made fundamental and basic mistakes of fact, which in turn have had a material impact on the conclusions.
12. The chronology in this case, on the salient features for the purpose of Regulation 27 is:
a. 28 July 2015 convicted of index offence
b. 18 February 2016 deported to Albania
c. Sometime in 2018 he re-enters the UK:
i. The appellant says this was June or July.
ii. The SSHD says earlier due to what he had told an Immigration Officer of about February/March 2018. The IO did not accept this however as they found an Albanian driving licence issued in April 2018.
d. 20 August 2019 he was arrested and detained following an enforcement visit
e. 23 August 2019 he claimed asylum
f. 9 September 2019 applies for a residence card.
13. The FTT at various stages of the determination gets the dates wrong when he was arrested and detained:
a. Paragraph 21 refers to the enforcement visit 20.08.2018. This is incorrect.
b. Paragraph 24 says that “as the arrest was in August 2020 this would mean she had conceived the child in Match 2018”. This is obviously confused and incorrect.
c. Paragraph 25 “I consider the evidence regarding the stage of pregnancy and the indication of two earlier miscarriages is inconsistent with the claim they both make that they only started their relationship after the Appellant returned in June 2018 and had only met four or five times before he was imprisoned in 2015. The evidence indicates that Ms Stoican and the Appellant have not been truthful about their relationship and when the Appellant came to the United Kingdom. It also does not fi that she had two previous miscarriages at two and half months unless the Appellant was in the United Kingdom far earlier than he claims or Ms Stoican spent more then [sic] she told me in Albania, I give all this negative weight. This section is manifestly perverse.
d. Paragraph 40 “The appellant told Ms Pagella how sorry he was for dealing drugs but I temper this with his behaviour and use of an Italian document when detained on 20.08.2018”. This is incorrect.
e. Paragraph 41 “his behaviour when apprehended on the 20.08.2021”. This is incorrect.
14. The nub of the FTT’s credibility assessment is because the appellant claims to have entered the UK in June/July 2018 that somehow this inconsistent with the evidence that his wife has had 3 miscarriages by the time he was detained.
15. First such a finding is obviously impacted by the Judge being wrong throughout her findings as to when the arrest and detention was. The appellant was arrested on 20 August 2019, 14 months or so after he returned to the UK. It is perfectly possible for someone to have more than one miscarriage in that time.
16. Secondly, neither the appellant nor his wife were asked about this at all, it is therefore manifestly unfair to draw a conclusion in the manner the Judge does.
17. Thirdly, it is obviously perverse because the evidence from both was that the last miscarriage was in July 2020 which is supported in the second supplementary bundle (page 101), which was 3 months after the assessment with Susan Pagella which is where the Judge draws her information.
18. The next error the Judge makes is in relation to the sponsor’s knowledge of the appellant’s alleged working. At paragraph 43 the Judge says that “Her bank statements show many unexplained entries and some of the fast payments appear to have come from the Appellant despite him having no permission to work (see for example £450 24.05.2019)”. The difficult with this finding is that the Judge has looked at the appellant’s bank statement and thought it was his wife’s.
19. The Judge does not say which bundle this bank statement is, however, the Appellant understands from the bundles that there is a payment from the Appellant, Klisman Sykaj, on the 24.05.2019 into a bank account. This is on page 88 of the Respondent’s bundle, however that is his own bank account. Not his wife’s.
20. Secondly, of course this period was before the appellant was arrested and detained. There is no evidence either in the bundles or referred to by the Judge as to the appellant working as at the date of the hearing, or for any time before then.
21. This set of findings go to the overall credibility assessment, and plainly has been held against the appellant, and his wife, yet are infected with a clear mistake of fact, coupled with a plainly procedurally unfair approach.
22. There is a further significance to this credibility finding in that the judge concludes at paragraph 39:
“I have been provided with a Psychotherapist report from Ms Pagella. As I have already addressed above, the account the Appellant and Ms Stoican give of their relationship is inconsistent with the evidence before me and what they had said to Ms Pagella.”
However, this “inconsistency” is not one at all, and stems from the Judge’s own confusion as to the chronology. It also directly impacts how the Judge considers the report of Ms Pagella, which itself concluded that the appellant was a low risk of reoffending.
23. Taken all the above it is plain that the Judge made several significant errors of fact which impacted her credibility finding resulting in her attaching limited weight to Susan Pagella’s report (paragraph 41) impermissibly.
iii) Inadequate reasons for concluding a genuine, present and sufficiently serious threat
24. The FTT determines the question of genuine, present and sufficiently serious threat in one paragraph (paragraph 49). This is inadequate reasoning. The Judge clearly uses her credibility findings against the appellant on his asylum claim to that for other aspects of the case. However as seen above, those findings are infected with clear mistakes of fact such that they cannot stand.
25. In any event it is impermissible to simply find the appellant not credible and then conclude that as a result he represents a genuine, present and sufficiently serious threat. This is more relevant when the findings of fact are not entirely negative, there are several areas where the appellant and his wife’s evidence was accepted. That makes the reduction to the key question to one paragraph susceptible to error.
26. It is impermissible in EU law to rely solely on past convictions - the Judge is plainly using his previous conviction as the only reason for concluding he represents any threat.
27. There is no consideration of the experts’ view as to his risk of reoffending. The Judge gives no reasons for rejecting the conclusion by the experts as to risk of reoffending. The Judge must explain why the Respondent has shown that there is a genuine and present threat - the Judge has failed to do this. The credibility findings are insufficient to allow the Judge to come to this conclusion.
28. The Judge finds at paragraph 44 that “he has not demonstrated any reliable evidence of any remorse for his criminal offending and his use of the Italian passport indicates he is not reformed in any capacity. I do not accept that he now seeks to have a legitimate life and consider Ms Stoican has not told the truth about what she knew or knows about working in the UK and would effectively say anything to support the Appellant.”
29. The difficulty with this finding is that:
a. The Judge does not explain why what the appellant says in his witness statement, or his oral evidence as to why he will not reoffend, is not accepted. Equally, the Judge fails to explain as to why no credence is given to what the appellant said to Ms Pagella, and why specifically it is rejected.
b. There was no evidence of any criminal offending since the appellant re-entered the UK. Using the ID card to work does not, nor cannot, demonstrate a genuine, present and sufficiently serious threat for the purposes of Regulation 27(3).
c. In any event, even if it can demonstrate that, in this case, the appellant was arrested in August 2019 - 2 years before the hearing - and there was no evidence spanning those 2 years to show any conduct demonstrating such a threat.
d. Secondly, the appellant has applied for a residence card which, if granted, would allow him to work. The finding that in relation to him not seeking a “legitimate” life alludes and infers criminality – however, there is and was absolutely no evidence of any offending or criminal activity produced by the Respondent.
30. The undisputed evidence before the Judge was that the appellant had been convicted of a serious offence in July 2015, he had been deported, had re-entered in 2018, had been found to have a false Italian ID card in August 2019. No other conduct of the appellant was relied on by the Respondent. Indeed, the Presenting Officer on behalf of the 8 Respondent accepted in his submissions that since being released from immigration detention and since the start of the COVID-19 pandemic the appellant had not been in trouble or in his own words “a good boy”. None of that could show a genuine, present and sufficiently serious threat to a fundamental interest in August 2021. The Judge’s conclusion is not only inadequately unreasoned, but perverse because the ingredients the Respondent requires to show her case were simply not made out.
iv) Inadequate proportionality balancing exercise
31. In the alternative, once a finding that there is a genuine, present and sufficiently serious threat is established, then that is obviously not the end of the matter. A proportionality assessment needs to be carried out, with a full consideration of the factors identified in Regulation 27(6), (8) and Schedule 1:
(6) Before taking a relevant decision on the grounds of public policy and public security in relation to a person (“P”) who is resident in the United Kingdom, the decision maker must take account of considerations such as the age, state of health, family and economic situation of P, P’s length of residence in the United Kingdom, P’s social and cultural integration into the United Kingdom and the extent of P’s links with P’s country of origin.
(8) A court or tribunal considering whether the requirements of this regulation are met must (in particular) have regard to the considerations contained in Schedule 1 (considerations of public policy, public security and the fundamental interests of society etc.).
SCHEDULE 1: CONSIDERATIONS OF PUBLIC POLICY, PUBLIC SECURITY AND THE FUNDAMENTAL INTERESTS OF SOCIETY ETC.
Considerations of public policy and public security
1. The EU Treaties do not impose a uniform scale of public policy or public security values: member States enjoy considerable discretion, acting within the parameters set by the EU Treaties, applied where relevant by the EEA agreement, to define their own 9 standards of public policy and public security, for purposes tailored to their individual contexts, from time to time.
Application of paragraph 1 to the United Kingdom
2. An EEA national or the family member of an EEA national having extensive familial and societal links with persons of the same nationality or language does not amount to integration in the United Kingdom; a significant degree of wider cultural and societal integration must be present before a person may be regarded as integrated in the United Kingdom.
3. Where an EEA national or the family member of an EEA national has received a custodial sentence, or is a persistent offender, the longer the sentence, or the more numerous the convictions, the greater the likelihood that the individual’s continued presence in the United Kingdom represents a genuine, present and sufficiently serious threat affecting of the fundamental interests of society.
4. Little weight is to be attached to the integration of an EEA national or the family member of an EEA national within the United Kingdom if the alleged integrating links were formed at or around the same time as—
(a) the commission of a criminal offence;
(b) an act otherwise affecting the fundamental interests of society;
(c) the EEA national or family member of an EEA national was in custody.
5. The removal from the United Kingdom of an EEA national or the family member of an EEA national who is able to provide substantive evidence of not demonstrating a threat (for example, through demonstrating that the EEA national or the family member of an EEA national has successfully reformed or rehabilitated) is less likely to be proportionate.
6. It is consistent with public policy and public security requirements in the United Kingdom that EEA decisions may be taken in order to refuse, terminate or withdraw 10 any right otherwise conferred by these Regulations in the case of abuse of rights or fraud, including—
(a) entering, attempting to enter or assisting another person to enter or to attempt to enter, a marriage, civil partnership or durable partnership of convenience; or
(b) fraudulently obtaining or attempting to obtain, or assisting another to obtain or to attempt to obtain, a right to reside under these Regulations.
The fundamental interests of society
7. For the purposes of these Regulations, the fundamental interests of society in the United Kingdom include—
(a) preventing unlawful immigration and abuse of the immigration laws, and maintaining the integrity and effectiveness of the immigration control system (including under these Regulations) and of the Common Travel Area;
(b) maintaining public order;
(c) preventing social harm;
(d) preventing the evasion of taxes and duties;
(e) protecting public services;
(f) excluding or removing an EEA national or family member of an EEA national with a conviction (including where the conduct of that person is likely to cause, or has in fact caused, public offence) and maintaining public confidence in the ability of the relevant authorities to take such action;
(g) tackling offences likely to cause harm to society where an immediate or direct victim may be difficult to identify but where there is wider societal harm (such as offences related to the misuse of drugs or crime with a cross-border dimension as mentioned in Article 83(1) of the Treaty on the Functioning of the European Union);
(h) combating the effects of persistent offending (particularly in relation to offences, which if taken in isolation, may otherwise be unlikely to meet the requirements of regulation 27);
(i) protecting the rights and freedoms of others, particularly from exploitation and trafficking;
(j) protecting the public;
(k) acting in the best interests of a child (including where doing so entails refusing a child admission to the United Kingdom, or otherwise taking an EEA decision against a child);
(l) countering terrorism and extremism and protecting shared values.
32. It is plain from above that a careful balancing exercise needs to be undertaken, taking into account all the relevant considerations. In this case that is reduced to paragraph 50 where the Judge clearly is carrying out an Article 8 assessment, given the references to family and private life and the statutory tests. These are at best not relevant to an assessment under Regulation 27, as a proportionality assessment under the EEA Regulations is clearly a broader assessment. There is neither any consideration of the appellant’s mental health in this assessment by the Judge - which ignores the reports of Dr Hussain - nor is there any analysis as to what impact Ms Pagella’s report may or does have.
33. Even considering the reasons given by the Judge, there is:
a. no analysis as to the impact of the couple being separated, with
b. scant reasons for why Ms Stoican can go with the appellant to Albania, notwithstanding that it would interfere with her own Treaty Rights being exercised, and
c. scant reasoning as to the overall proportionality of the decision. There is next to no meaningful balancing exercise carried out by the Judge.”
The Grant of Permission to appeal
6. Permission was granted by First-tier Tribunal Judge Swaney on 28 October 2021 for the following reasons:
“2. The grounds assert that the Judge erred in considering paragraph 320 of the Immigration Rules which did not apply; in considering the appellant’s protection claim before turning her mind to the EEA aspects of the appeal; in conflating the assessment of the asylum and EEA issues; in making mistakes of fact which had a material impact on her credibility assessment; in failing to give adequate reasons for finding that the appellant poses a genuine, present and sufficiently serious threat to one of the fundamental interests of society by relying on credibility findings and in solely relying on the appellant’s single conviction; in failing to consider and/or give reasons for rejecting expert evidence on the risk of reoffending; for placing undue reliance on the appellant’s use of a false Italian ID card when considering regulation 27; and in failing to carry out an adequate proportionality assessment.
REASONS FOR DECISION
3. For the reasons set out in the grounds of appeal, the judge’s assessment of whether the appellant poses a genuine, present and sufficiently serious threat to one of the fundamental interests of society is arguably flawed.
4. The grounds of appeal disclose an arguable error of law. The grant of permission is not limited.”
Submissions
7. There was no rule 24 reply.
8. Miss Young accepted there was a material error in relation to grounds 3 and 4 as regulation 27 did not apply. The Appellant had never been issued with a Residence Card and was not therefore entitled to the protection afforded by Regulation 27. The Judge should have looked at the issue of deportation. There was no clear finding regarding the Appellant’s marriage, it not being disputed he married after the relevant date. The Judge should have done more than she did.
9. Mr Toal submitted that the appeal should be reheard and that the matter need be taken no further at the hearing today.
Conclusions and reasons
10. We agreed with Miss Young and Mr Toal that there was a material error of law for the reasons conceded by Miss Young which we do not need to repeat and that we did not need to explore the other grounds for the purpose of deciding to set aside the decisions of the First-tier Tribunal and to rehear the appeal in the Upper Tribunal.
11. We find there was a material error of law in the decision of First-tier Tribunal Judge Mensah and we set the decision aside.
Further conduct of the appeal
12. We directed the representatives to seek to agree a schedule of agreed facts, disputed facts, and relevant law. Miss Young prepared such a document on 8 August 2022. Mr Toal does not appear to have engaged with the process other than emailing on 8 August 2022 to say he was on holiday and aimed to respond substantively during the week beginning 15 August.
13. We direct that the Appellant through his representatives respond to the Respondent’s proposed schedule of agreed facts, disputed facts, and relevant law by 17 October 2022. If no response is received by that date, the Appellant will be deemed to accept the contents of the schedule in full.
14. We direct that any further evidence that is to be relied upon is to be filed and served by 28 October 2022.
15. We direct that the hearing be relisted before Deputy Upper Tribunal Judge Saffer on the first available date on or after 7 November 2022 with a time estimate of 1 day. If an interpreter is required, the Appellant’s Solicitor is to notify the Upper Tribunal by 28 October 2022 which language is required.



Laurence Saffer

Signed Date: 30 September 2022
Deputy Upper Tribunal Judge Saffer